Porter v. Iowa Power & Light Co.

Decision Date24 April 1974
Docket NumberNo. 1--55720,1--55720
Citation217 N.W.2d 221
PartiesJanet PORTER, Administrator of the Estate of Randy Laverne Porter, Deceased, Appellant, v. IOWA POWER AND LIGHT COMPANY et al., Appellees.
CourtIowa Supreme Court

Patterson, Lorentzen, Duffield, Timmons, Irish & Becker, Des Moines, and Shirley, Smith & Shirley, Perry, for appellant.

Duncan, Jones, Riley & Davis, Des Moines, for appellee Iowa Power & Light Co. Heslinga & Heslinga, Oskaloosa, for appellee Garden Engineering service, inc.

Ahlers, Cooney, Dorweiler, Allbee & Haynie, Des Moines, for appellee City of Altoona.

Heard by MOORE, C.J., and RAWLINGS, REES, UHLENHOPP and McCORMICK, JJ.

McCORMICK, Justice.

Plaintiff in this wrongful death action appeals judgment entered for one defendant on a directed verdict and for two other defendants on a jury verdict. We affirm the judgment entered on the directed verdict but reverse the judgments entered on the jury verdict.

Plaintiff's decedent Randy Laverne Porter was an employee of Crees Enterprises, Inc., ('Crees'), a general contractor engaged by defendant The City of Altoona, Iowa ('City') to do paving work. Defendant Garden Engineering Service, Inc. ('Garden') was engineer for the City in relation to the project. Decedent was electrocuted on August 26, 1969, while working on the project in a City intersection when a crane operated by a fellow employee of Crees came close enough to a 7200 volt electric line of defendant Iowa Power and Light Company ('Ipalco') to cause the electricity to travel through the crane and decedent's body to the ground.

Plaintiff's petition alleged each defendant was negligent in several respects and asked wrongful death damages from each. The case went to trial. At the conclusion of plaintiff's evidence the court sustained a motion for directed verdict by Garden. Upon later submission of the case to the jury against the City and Ipalco the jury returned a verdict for the defendants.

There was little conflict in the material testimony.

L. J. Wise, mayor of the City, testified the paving project was part of a large paving and sewer project undertaken by the City in 1969. Garden was employed by the City as its engineer to draw plans and specifications and then inspect the project until completion. Crees received the contract for paving work by assignment from the successful bidder. The City notified Ipalco of the project and furnished it a copy of the plans and specifications. The mayor saw employees of Ipalco at the job site occasionally during progress of the work. He also saw Crees using a crane on the project and knew of high voltage lines in the vicinity. He knew Ipalco had to move one utility pole during the work. He did not warn Crees or its employees of danger from the high voltage lines.

John Hesling, president of Garden, testified his firm designed the project. He said he notified Ipalco of the project, furnished it a copy of the plans and specifications, and during the course of work Ipalco relocated and lowered a number of gas lines and may have moved one or two utility poles. He and two of his employees testified Garden's role during the construction was to inspect the work to assure the finished product would substantially comply in quantity and quality with the plans and specifications. Garden was not concerned about equipment unless it would adversely affect product quality and had no supervision of Crees' employees.

Daryl Crees, owner and operator of Crees, testified his company started work in July or August 1969 on the paving project. Various heavy machines including a crane were used in the work. The crane was used for moving heavy equipment and in pouring cement. It was a 25 ton mobile truck-mounted crane with a 40 foot boom. Decedent worked for Crees as a laborer and equipment operator. On August 29, 1969, in late afternoon, Crees was in the process of pouring cement in an intersection area that was inaccessible by truck. A large concrete bucket was attached to the crane cable, and the crane was used to lift the concrete across a slab that was too fresh to accommodate the weight of trucks.

The intersection and procedure being employed were described by several witnesses. The completed slab was the northernmost slab in an east-west street. It was about 15 feet wide. Concrete was being laid in the northeast corner of the intersection in an area called a radius. Ipalco's electric lines crossed the intersection from north to south several feet to the east of the north-south curb line. The top wire, a bare wire about 33 feet above the ground, carried 7200 volts of electricity, and three lines below carried 120 volts. The crane was positioned south of the completed slab, east of the intersection's north-south centerline. The concrete truck was to the west.

The procedure was that the bucket would be filled at the cement truck and then lifted about four feet above the ground across the slab to the radius in a southwest to northeast arc. Decedent was in charge of signalling the crane operator as well as dumping the bucket. When the bucket reached the place it was to be dumped the crane operator would stop the boom but the bucket would keep swinging in about a ten foot arc in a pendulum motion. Decedent and Mr. Crees would steady the bucket and then decedent would operate a trip lever to dump it. Others worked on the fresh concrete with shovels and finishing tools.

Decedent occasionally rode on the bucket. In the instance involved he had done so. Mr. Crees had hold of the bucket and let go when it got to the point it was to be dumped. It started its pendulum motion. Decedent stepped off and proceeded to steady it. While he was steadying the bucket, the boom or cable picked up a charge from the 7200 volt line, and he was electrocuted.

One eyewitness thought the cable touched the wire. Another said it was within six to eight inches of the wire when he saw it. Others, including the crane operator, asserted it never came closer than three to four feet of the wire. All agreed the boom extended above the wire.

After the accident the work was completed with the crane in the same position. However the bucket was not swung as far northeast. It was lifted north across the slab and dumped. About 15 men with shovels moved the concrete the rest of the way to the northeast.

Mr. Crees testified Ipalco had a man on the job almost all the time. He said poles too close to the street were relocated and gas lines were lowered. Several other witnesses confirmed the frequent presence of Ipalco employees. Mr. Crees and several of his employees including the crane operator testified they were aware of the presence of the lines and the danger of electricity but did not know any of them carried high voltage.

Mr. Crees confirmed the testimony of witnesses Wise and Hesling that the role of Garden on the project was limited to assuring the work was done according to design. He said Garden did not supervise his men but could shut down the job at any time the work was not being done as designed.

Phillip Ehm, manager of gas and electric systems for Ipalco, testified the electrical installation conformed to the minimum requirements of the National Electric Safety Code. The 33 foot elevation of the 7200 volt line substantially exceeded the 20 foot elevation requirement of the code. He said mechanical insulation on lines of that voltage is impractical so they are isolated by elevation instead. Mr. Ehm and Clarke Bennett, a consulting engineer, said electricity from a 7200 volt line could not arc more than four-tenths of an inch.

Mr. Ehm testified he did not know Crees was going to use the crane in the intersection, but would have given appropriate advice had he known of its use there. He would have told Crees how to ground the crane. He also testified the line could have been de-energized just south of the intersection, and service to about 30 to 50 homes would have been affected.

Seven main questions are raised by the appeal: (1) Did the contract between the City and Crees establish a submissible duty owed decedent by the City and Garden? (2) Should testimony have been received that precautions would have been taken by Crees if warned of the danger? (3) Should additional negligence specifications have been submitted against the City? (4) Should additional negligence specifications have been submitted against Ipalco? (5) Should certain of plaintiff's requested instructions have been given? (6) Were plaintiff's exceptions to trial court's instructions erroneously overruled? (7) Were the special interrogatories submitted to the jury proper?

I. The contract between City and Crees. Plaintiff sought to introduce the contract between the City and Crees into evidence to establish a duty owed her decedent thereunder which she alleged was negligently breached by the City and Garden as agent for the City. By motion in limine the City and Garden obtained a ruling from trial court excluding the contract from evidence and holding it did not establish the duty asserted. Plaintiff admits her cause of action against Garden depended on establishment of that duty under the contract. Thus, if trial court was correct in holding the duty did not exist under the contract, then the court was also correct in sustaining the directed verdict for Garden.

Plaintiff argues this case is like Giarrantano v. Weitz Co., Inc., 259 Iowa 1292, 147 N.W.2d 824 (1967). In that case we recognized the well settled rule that when a contract imposes a duty upon a person, the neglect of such duty is a tort, and an action ex delicto will lie. Id. 259 Iowa at 1305, 147 N.W.2d at 832. We also found the contract between a general contractor and a subcontractor in that case imposed a responsibility on the general contractor for the safety of employees of the subcontractor. We agree with plaintiff that such duty may be imposed by contract, but we agree with trial court that such duty was not imposed by the contract in this...

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