Pierce v. United States, Civ. A. No. 2134.

• Decision Date: 19 April 1955
• Docket Number: Civ. A. No. 2134.
• Citation: 142 F. Supp. 721
• Parties: James R. PIERCE v. The UNITED STATES of America.
• Court: U.S. District Court — Eastern District of Tennessee

142 F. Supp. 721

James R. PIERCE v. The UNITED STATES of America.

Civ. A. No. 2134.

United States District Court E. D. Tennessee, S. D.

April 19, 1955.

COPYRIGHT MATERIAL OMITTED

Van Derveer & Parks, Chattanooga, Tenn., for plaintiff.

John C. Crawford, U. S. Atty., Knoxville, Tenn., for defendant.

DARR, Chief Judge.

This is a suit for damages against the United States under the provisions of the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq. for injuries received by the plaintiff while working as an electrical lineman at the Volunteer Ordnance Works (VOW).

The VOW, located near Chattanooga, Tennessee, is a government owned munition plant, built and ultilized during World War II in the manufacture of TNT. At or following cessation of hostilities, it was deactivated and placed in a stand-by status. As a result of the Korean War the Department of the Army decided in 1952 to reactivate VOW and again utilize its facilities for the production of explosives.

On June 30, 1952, the Ordnance Corps contracted with Atlas Powder Company to use the plant to manufacture TNT. Before production could begin, however, certain rehabilitation work was necessary, including work on the aerial electrical distribution system. In June of 1952 the government, through the Corps of Engineers, contracted with Patchen and Zimmerman, architect-engineers, to perform services in the preparation of designs, drawings, etc. for the job. During the same month the Corps of Engineers contracted with Hiwassee Constructors for the actual rehabilitation. In accordance with authority granted in its contract, Hiwassee subcontracted the electrical work to J. A. Lonas, Jr.

After entering upon the work Lonas defaulted. In March of 1953 the surety of Lonas procured the services of Turner Electric Company to come in and complete the contract. The plaintiff was an employee of Turner and was injured on June 14, 1953, while working on the project.

During the morning and early afternoon of the date of the accident plaintiff and other members of his crew had been working on power lines in the so-called North Acid Area of the project. When they finished there they moved into the East Acid Area, which is where the accident occurred.

The work to be done in the East Acid Area consisted of replacing guy wires on a junction pole. To protect the men from the danger of doing the work while the power was on the lines of the junction pole, it had been decided that they should be killed by pulling the switches which controlled their source of feed located on a nearby substation. Some of the lines of the substation were high-voltage wires, and it had also been decided that the switches would not be pulled until the power on the substation itself had been killed. The practice was to eliminate power over the lines by proper manipulation of switches at the powerhouse. But because power will back up from motors or because there might be a mistake in breaking the current at the powerhouse, the custom is universal to also eliminate the flow of power, interrupting it by the disconnection of switches at substations. In this manner workmen would be safe in replacing guy wires on the junction poles.

According to the proof, when Turner wanted a line killed the procedure was to take the matter up with Hiwassee, who in turn consulted with Atlas so that a time convenient to all could be set, for although Atlas had only a small advance party on the premises, some buildings utilizing electricity were occupied by it. Once the date and time was agreed upon the practice was for the crew foreman doing the work necessitating the cutting of power to pull the necessary switches. The proof also indicates that the pulling of switches was directed or supervised on occasions by Leonard Webb, general foreman for Turner, and R. L. Hughes, electrical superintendent of Hiwassee. In any event the operation was one left entirely to the contractors and was one over which the Corps of Engineers chose to exercise no control.

There was proof that on the morning of the date plaintiff was hurt, R. L. Hughes told plaintiff's crew foreman that the switch would be thrown and that there would be clearance on the lines at five o'clock p. m. It was afternoon when the crew moved into the East Acid Area but before five o'clock. They were instructed by Leonard Webb, the general foreman of Turner, not to begin work on the lines until the clearance had been obtained. As a result they busied themselves with making up guy wires while waiting for the clearance. Webb went away but returned a short time later. He took plaintiff and another lineman, Burnette, with him to a location near the substation where they pulled some switches. After they were pulled Webb left, again telling the men not to go up the poles until he returned. At approximately five o'clock he came back and, according to the plaintiff, told the crew foreman, "Okay, boys she is all dead. You can go ahead and pull them out, boys, they are all safe." Thereupon the crew foreman, Miller, sent plaintiff and Burnette up the substation poles to pull the switches. This testimony on behalf of the plaintiff was uncontradicted by the government.

According to all the testimony "clearance" meant, in the language of electricians, that the power would be entirely off and that the lines would be dead.

Plaintiff went up one pole to pull the switches which could be reached from that vantage point. Burnette went up the adjacent pole. According to plaintiff, Burnette pulled his switches first, using a "hot stick" or insulated pole. He then passed the stick over to plaintiff and the latter pulled three switches from his pole and handed the stick back. Prior to beginning work plaintiff had fastened his safety belt around the pole.

Plaintiff pulled three switches and returned the stick to Burnette. According to his own account, the next thing he did was to take his hammer and rake it down a high-voltage wire or riser which ran parallel to the pole and behind his back. This was done as an additional precautionary measure and constituted the practice in general use among linemen as their own check to determine whether or not lines with which they might come into contact were dead. According to plaintiff, when this was done Burnette stated he thought he saw something. Whereupon the plaintiff raked his hammer down the riser a second time but got no reaction. He then took his gloved hand and slapped the riser. Nothing happened. As one final check he took off his glove and struck the riser with his bare hand, getting no reaction. Meanwhile Burnette began to make his descent. According to plaintiff he started to pull his right foot up and "unsafety", evidently in preparation to descending, when his right spike "cut out", causing him to be thrown around the pole. Thereafter he remembered nothing until he regained consciousness some hours later at the hospital.

According to the testimony of several witnesses sparks were seen and plaintiff slipped or fell in such a way that his right hand was touching the riser, his left hand was in contact with an "air braker switch handle" located on the pole, and his head was thrown into the upper portion of a guy wire which was attached to the pole just above the level of plaintiff's head.

The whole proof showed that the upper portion of the guy wire was grounded by touching, at its point of connection with the pole, a ground wire which was attached to and ran down the pole to the ground surface. It was this condition which caused plaintiff to be shocked when he touched the riser. As a result of being thus grounded the 4160-voltage current coursed through plaintiff's body causing severe burns to his hands and across the top of his head. The head injury caused concussion and some possible brain damage. There is a permanent scar. The burns to plaintiff's hands ultimately necessitated their amputation, together with the lower portion of both arms approximately midway between the wrists and elbows.

Burnette, who was only part way down his pole, came back up and with the use of the hot stick pushed plaintiff's body off the riser where he was held until two other linemen succeeded in getting him down.

The construction and maintenance of the substation has an important bearing on the case. The wiring and switches referred to were located above ground on the supported area afforded by four power poles forming a square or rectangular structure. Although the guy wire had an insulator in its upper portion to prevent the lower part of it from becoming charged with current, where it was attached to the pole it was permitted to be in contact with the pole ground wire, thereby causing that part of it from the insulator to the pole to be grounded. The air braker switch handle was connected with or part of a metal pipe which ran down the side of the pole, but the proof does not establish with certainty whether or not it was also grounded.

According to the proof, it was due to the defective makeup of the substation whereby the guy wire was grounded which caused plaintiff to be shocked when he came into simultaneous contact with it and the riser. Also uncontradicted was plaintiff's explanation as to why he went up the side of the pole nearest the riser. He testified that to have gone up the other side would have necessitated straddling a metal pipe which was located there and ran parallel to the pole, at a sufficient distance from it as to make it impossible to reach the pole with hands and feet in a manner to assure safe climbing. It was also shown that the switches which he pulled were so constructed as to require a straight pull which could not have been accomplished from an angle.

Robert T. Hine, Electrical Supervising Engineer for Patchen and Zimmerman, examined the substation shortly after the accident. He was called as a witness for the plaintiff and testified that in his opinion the construction and maintenance of the substation...