Phillips v. Union Elec. Co.

• Decision Date: 17 October 1961
• Docket Number: No. 30707,30707
• Citation: 350 S.W.2d 432
• Parties: Anna PHILLIPS, Administratrix of the Estate of John Phillips, Deceased, Plaintiff-Respondent, v. UNION ELECTRIC COMPANY, a corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 432

350 S.W.2d 432

Anna PHILLIPS, Administratrix of the Estate of John Phillips, Deceased, Plaintiff-Respondent, v. UNION ELECTRIC COMPANY, a corporation, Defendant-Appellant.

No. 30707.

St. Louis Court of Appeals, Missouri.

Oct. 17, 1961.

William H. Ferrell, Keefe, Schlafly, Griesedieck & Ferrell, St. Louis, for appellant.

Morris E. Stokes, Burton H. Shostak, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for respondent.

BRADY, Commissioner.

This case comes to the writer upon reassignment. The respondent, mother and administratrix of the estate of her deceased son, brought this action for wrongful death against the Union Electric Company, hereinafter referred to as the appellant. Trial resulted in verdict and judgment for respondent in the amount of $15,000. We have jurisdiction of this appeal, Secs. 3, 13, Article V, Constitution of Missouri, 1945, V.A.M.S.; Section 477.040 RSMo 1959, V.A.M.S.

There is only one point presented for our determination. Respondent pleaded and tried her case upon the theory of res ipsa loquitur. The appellant stood upon its motion for a directed verdict offered at the close of respondent's case, and assigns as error the trial court's refusal to grant that motion. We will confine the statement of facts to those pertinent to appellant's assignment of error, and we will take the evidence in the light most favorable to respondent, giving her the benefit of all reasonable inferences to be drawn therefrom. Reddick v. City of Salem, Mo.App., 165 S.W.2d 666, at loc. cit. , page 670; Boese v. Love, Mo., 300 S.W.2d 453.

At the time the accident took place, the deceased was on the outside of the building, standing on the cornice with his hand on the window frame and his right shoulder in the vicinity of the scaffolding. His brother, who was working with him, was inside the building about one or two feet away from the window with his back to the window getting some material when he heard the deceased grunt and holler 'Oh.' He turned toward the deceased and saw that his hand was on the window, that he was grunting, moaning and starting to slip. When he grabbed for the deceased, he received an electrical shock which shortly wore off and he grabbed hold of the deceased again. By this time, another workman who was helping the brothers arrived at the window and assisted in pulling the deceased into the building. The time of death is not exactly known, but the deceased died a short time after being pulled in through the window.

The pathologist who examined the deceased found post mortem lividity and cyanosis, bulging of the veins about the neck, a roughly rectangular burn or mark which went through the superficial layers of the skin over the right shoulder scapular region, and a fresh linear burned area fairly deep through the skin on the right forearm. He also found fluid in the lungs and gave as his expert opinion that death resulted from electrocution. The physician also testified that there was no way of determining whether the burns were from electrical or other sources, and that he did not find burns on the feet of the deceased or on his hands.

The deceased was a carpenter and on the date of his death was engaged in the installation of aluminum frame windows in a building in the City of St. Louis. The installation of these aluminum frames required work to be done both on the outside and inside portions of the building wall. At the time of the accident in the evidence the deceased was doing the outside work and his brother, also a carpenter, was doing the inside work. They were working on one of the third story windows at about the middle of the building as it fronts on Sarah Street in the City of St. Louis. A metal scaffolding had been erected to facilitate this work. This scaffolding was about five feet wide and extended a few feet above the third floor, and abutted a copper covered cornice which extended along the building at that place at about the third floor level. This cornice was one and a half feet wide, approximately, and therefore the outside edge of the scaffolding was about six and a half feet from the building wall itself. The appellant maintained utility poles and electric wires along the frontage of the building, and since it appeared that the outside edge of the scaffolding would be close to one of the wires, the deceased's employer requested the appellant to change its facilities in order to provide ample clearance for the scaffolding. The appellant sent a crew out to the scene and certain wires were removed and relocated about five days before the accident. The 2400-volt circuit maintained by the appellant along the Sarah Street frontage of this building included four wires: the A phase, which was furthest from the building; the B phase; a neutral wire; and the C phase, which was closest to the building. These lines stretch between the north pole, which is referred to as the alley pole in the evidence and which was located about one foot north of the north line of the building at the edge of an alley, and the south pole which was some distance to the south and opposite the building in the parkway between the sidewalk and the street. The cross-arms on the northern pole were ten feet long and being centered on the pole extended approximately five feet to each side. The cross-arms on the south pole were six feet long and thus extended three feet to each side of the pole. Whereas the bottom of the pole, that is, where the pole entered the ground, was approximately ten feet west of the building, it is clear from the exhibits that the alley pole leaned inwardly toward the building, but just how far it leaned out of vertical is not stated in the evidence. The C phase wire, the one closest to the building, was cut by the appellant's crew, rolled up and hung on a step about halfway up the south pole. That left the neutral wire closest to the building, and although it was an unenergized wire, it was moved from the cross-arm away from the building toward the pole. The B phase wire was then cut and hung in a rope sling between the two poles. That left the A phase wire as the only energized wire remaining between these two poles, and the evidence most favorable to the respondent is that it was six feet away from the scaffolding. The respondent places great emphasis upon the lines running northwardly from the alley pole. These wires were not changed by the appellant's crew. Plaintiff's Exhibits 9, 11, and 13 showed the north utility pole with these wires being attached to the top cross-arm of a couble cross-arm. On the date of the accident, it is shown by the evidence that there was another cross-arm about a foot higher located on this pole, but these lines were as shown in the exhibits although at the time of the accident they were attached to the single cross-arm that was then at the top of the alley pole. The testimony given by the appellant's foreman in charge of this work was that these lines would be about a foot north of the edge of the building.

There were no electric wires located in the wall against which the scaffolding was placed. The employees of appellant came out to the scene of the accident the day after it occurred and made some tests which, along with those made by the...