Public Service Co. of Indiana, Inc. v. Gibbs
| Decision Date | 19 March 1984 |
| Docket Number | No. 2-483A100,2-483A100 |
| Citation | 460 N.E.2d 992 |
| Parties | PUBLIC SERVICE COMPANY OF INDIANA, INC., Defendant-Appellant, v. Joseph E. GIBBS and Elizabeth Gibbs, Plaintiffs-Appellees. |
| Court | Indiana Appellate Court |
H. Roy Martin, Martin, Wharry & Disler, Lebanon, Gregory A. Troxell, Plainfield, Lester N. Bergum, Jr., Robison, Robison, Bergum & Johnson, Frankfort, for defendant-appellant.
Lawrence McTurnan, McTurnan & Meyer, Indianapolis, George G. Ponton, Frankfort, for plaintiff-appellees.
ROBERTSON, Judge (Writing by Designation).
Public Service Company of Indiana, Inc. (PSI) appeals the trial court's judgment awarding $605,498.87 to the plaintiff-appellee, Joseph E. Gibbs (Gibbs), and $15,000 to his wife, Elizabeth. PSI neither challenges the proceedings before the trial court nor the determination that it breached its duty of care, but contends it is entitled to a judgment as a matter of law because of the doctrines of contributory negligence and incurred risk.
We affirm.
PSI concedes it had the burden of proof to establish Gibbs was contributorily negligent or that he incurred the risk of his injuries. Hi-Speed Auto Wash, Inc. v. Simeri, (1976) 169 Ind.App. 116, 346 N.E.2d 607. Thus, PSI is appealing negative judgments in this case. In reviewing negative judgments, this court will only consider the evidence most favorable to the appellee, together with all reasonable inferences to be drawn therefrom. It is only where the evidence leads to but one conclusion and the trial court has reached the opposite result that the decisions will be reversed as being contrary to law. Chaney v. Tingley, (1977) 174 Ind.App. 191, 366 N.E.2d 707.
The facts reveal that Gibbs was the manager of the International Mineral and Chemical Corporation (IMC) fertilizer plant in Forest, Indiana. Gibbs suffered severe electrical shock when one of the bins of a fertilizer hopper truck he was operating came into contact with a 7200 volt uninsulated power line on April 23, 1979. The accident took place during the ten day period of spring planting in which seventy-five percent of IMC's annual business transactions occur. Gibbs is permanently disabled as a result of the accident.
Gibbs was operating a Mobility hopper truck when the accident occurred. The truck consists of a hopper unit, manufactured by Mobility, attached to the flat bed of a Ford truck. The hopper unit has two large fertilizer bins. The truck with the hoppers unelevated is approximately twelve feet high. To operate the truck, it is first necessary to fill the hopper with fertilizer and then pull beside a fertilizer spreader truck, which is referred to as a flagship. At this time, the operator would get out of the truck and lower two outriggers or stabilizers, which are iron supports extending from the left side of the truck bed to prevent the vehicle from tipping when the hoppers are unloading. One of the hoppers would then be hydraulicly raised and the fertilizer is dumped into the flagship. In its elevated position, the top of the hopper box tilts upward at a slight angle.
The accident took place at the IMC fertilizer plant. PSI owns and maintains primary electrical distribution lines which are parallel to the county line road. The road runs to the northeast out of Forest and fronts the eastern edge of the IMC property. The electricity is carried by an open delta system which consists of three lines. The two outside lines are energized or "hot" and carry 7200 volts each. The middle line is not energized. These lines run generally in a northwesterly to southeasterly direction into a transformer on IMC's property. Various service lines run from the transformer to the buildings on the plant. The high voltage lines pass over the rectangular scales which IMC uses to weigh trucks. The power lines are attached to a thirty-five feet high utility pole to the east and to a pole forty feet high to the west. The poles are two hundred sixty-eight feet apart, even though the specifications for the job call for a span of two hundred fifty feet. The wires are attached to cross-arms which are twenty-seven feet, six inches in height on the east pole and thirty-one feet, six inches on the west pole. The minimum vertical height for a span of this distance is twenty feet, eleven inches and it is imposed by the National Electrical Safety Code. The parties stipulated that the code is applicable to PSI.
The accident occurred on April 23, 1979, at approximately 5:30 p.m. at a point about thirty feet southeast of the scales. James Richter was operating the flagship that day. He had been called on a two-way radio and told to return in order to save time. When Richter returned, Gibbs pulled beside him in the hopper truck. The hopper truck was facing east and the flagship was headed west such that the left sides of the vehicles were opposite each other. The flagship was approximately two feet further north than the hopper truck. The large flotation tires of the flagship allowed only six inches of space at the point where Gibbs would operate the hopper controls.
After briefly conversing with Richter, Gibbs got out of his vehicle and walked to the left front of the flatbed where the operating controls for the hopper were located. Gibbs testified that he looked up and could not see anything. Other employees testified that one could not see above the hopper. There was also testimony that an operator would look away to avoid having fertilizer dust get into his eyes. Gibbs lowered the stabilizers and began to raise the front hopper in order to dump its contents. When the hopper was near or at its maximum height, it came into contact with its northern primary line. The evidence established the maximum height of the hopper truck to be twenty feet, one and one half inches, but it contained a ladder which could increase its height by one inch. The importance of the ladder is insignificant because testimony established contact was made about eight to ten inches below the highest point of the hopper. The trial court also found that no arcing had taken place but that actual contact had occurred.
On April 27, 1978, approximately one year prior to the accident, IMC called PSI to lower the lines...
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