Russell v. City of Idaho Falls

• Decision Date: 24 December 1956
• Docket Number: No. 8431,8431
• Citation: 78 Idaho 466,305 P.2d 740
• Parties: Beatrice P. RUSSELL and Walter C. Musgrave, State Insurance Manager, State of Idaho, Plaintiffs-Appellants, v. CITY OF IDAHO FALLS, a municipal corporation, and Union Pacific Railroad Company, a corporation, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 740

305 P.2d 740

78 Idaho 466

Beatrice P. RUSSELL and Walter C. Musgrave, State Insurance Manager, State of Idaho, Plaintiffs-Appellants, v. CITY OF IDAHO FALLS, a municipal corporation, and Union Pacific Railroad Company, a corporation, Defendants-Respondents.

No. 8431.

Supreme Court of Idaho.

Dec. 24, 1956.

Merrill & Merrill, Pocatello, Glenn A. Coughlan, Boise, L. H. Merrill, Idaho Falls, for appellants.

Albaugh, Bloem, Barnard & Smith, Idaho Falls, for respondent City of Idaho Falls.

L. H. Anderson, E. C. Phoenix and M. R. Smyser, Pocatello, Bryan P. Leverich, Salt Lake City, Utah, for respondent Union Pac. R. Co.

SMITH, Justice.

Respondent Union Pacific Railroad Company hereinafter sometimes is called the Railroad, and respondent City of Idaho Falls, the City.

Appellant Beatrice P. Russell seeks recovery of damages for the death of her husband Charles F. Russell, which occurred August 31, 1954, by electrocution allegedly caused by the negligence of respondents. Appellant Walter C. Musgrave, as Manager of State Insurance Fund, asserts subrogated rights of recovery of the amounts of workmen's compensation benefits the Fund has paid and become obligated to pay, growing out of the death of decedent as a compensation covered employee of Idaho Stockyards Company.

Respondent Railroad maintains certain pens, chutes and other facilities within respondent City for loading, unloading, feeding and caring for livestock, situate in and upon right of way property which respondent Railroad holds under lease from another railroad company. The Railroad, by contract effective May 1, 1943, contracted the operation of said stockyard facilities to Denver Union Stock Yard Company and The Ogden Union Stockyards Company. The contract was renewed each period of two years, and supplements were added thereto from time to time.

Denver Union Stock Yard Company, at its expense, and as its facilities, during the year 1943, constructed on the leased premises a cinder block office building, and, during 1946-1947, a frame metal covered barn building situate in the near vicinity of the office building. The construction included the electric wiring and installations in said buildings.

February 21, 1951, Idaho Stockyards Company, a Utah corporation, a subsidiary of The Ogden Union Stockyards Company and Denver Union Stock Yard Company, was substituted as the contractor in the stockyards operating contract, and was operating the stockyards for the Railroad August 31, 1954, at the time of the accident which resulted in the death of Charles F. Russell.

Idaho Stockyards Company, operating under said contract with the Railroad, loaded, unloaded, watered, fed, rested, and otherwise cared for livestock handled by the Railroad; also cleaned and sanded railroad cars and performed minor repairs and maintenance on the stockyards property.

The Stockyards Company also received livestock trucked in by individuals, feeding and caring for such livestock in the railroad stockyards, preparatory to the livestock being delivered by the Stockyards Company to the adjoining Idaho Livestock Commission Company (an auction company). The Stockyards Company also received from purchasers their livestock bought at the Commission Company in cases where they desired their newly purchased livestock shipped therefrom by rail.

Decedent Russell at the time of his death was an employee of Idaho Stockyards Company.

The City of Idaho Falls owns and operates its electric distribution system. The source of supply of electric current for lighting the stockyard facilities, in use August 31, 1954, was installed by the City about two years after the construction of the office building. The City at that time at the request of the customer Railroad, which pays for all electric current used at the stockyards, installed a transformer on an electric power pole situate on the Railroad's leased right of way property. The City's electric lines connected to the customer Railroad's lines immediately below the transformer, through a meter wired by the Railroad. The lines extended from the transformer to the office building and from there to the metal barn. The City claimed no interest in the lines furnishing current from the transformer pole to the customer Railroad.

The City grounded the neutral of the transformer to a ground rod driven at the base of the pole, but did not test such ground at any time prior to Russell's death. There was a ground rod situate at the office building. No ground was provided at the metal barn although the National Electric Code, which the Railroad claims to have followed and the City had adopted, required all metal buildings to be grounded and fused.

The electric switch mechanism at the metal barn was contained in a four-inch metal box attached onto the wall, with the electric conduit extending from above into the switch-box. Two electric toggle switches inside the metal box were attached to the box by screws, and a plastic wall-type switch-box cover was attached by four screws,--two attached to each switch.

August 12, 1954, an electric storm occurred in Idaho Falls and vicinity, which allegedly caused damage to the transformer, indicated by the lights in the stockyards becoming dim. The City's electricians were cognizant of damage even though the lights burned brightly when the transformer was re-fused.

Sometime prior to August 31, 1954, the Railroad's employees piled pieces of metal scrap equipment against the northeast corner of the metal barn and adjacent to a post of wood set in concrete about a foot distant from such corner of the barn. When Russell and one Jorgensen, both employees of Idaho Stockyards Company, came to work about 8:00 a.m., the morning of August 31, 1954, the wood post was on fire. They got a water hose and, by sprinkling water on and around the post, put out the fire. They then opened the metal barn door without experiencing any electric shock.

During the next two hours Russell and Jorgensen cared for and fed some considerable number of sheep. Those sheep had been trucked in by individual owners to the Stockyards Company preparatory to delivery of the sheep to the nearby Idaho Livestock Commission Company. The two men after working about two hours feeding the sheep, went to the office of their employer; after about five minutes Russell left and went out to the barn. A few minutes later a man came to the office stating that a man was lying out by the barn. Jorgensen went out and found Russell in a sitting position against the northeast corner of the metal barn and but a few inches from the post which again was on fire, smouldering. Russell had been electrocuted.

The City upon being notified immediately sent electricians to the scene of the accident; they replaced the transformer with a new one.

The City upon testing the old transformer at its shop found that 1400 volts of electricity would go through the secondary coils on the neutral line, although the maximum should not have exceeded 220 volts. The City then caused the defective transformer to be dismantled. This dismantling revealed a short circuit between the primary and secondary coils of the transformer, being a clean puncture from the first turn of the primary coil, to the ninth turn of the secondary coil. The fact that the short was from the first turn of the primary coil indicated its cause to be due to a condition of over-voltage, attributed to lightning during the storm of August 12, 1954. The fact that the lights connected in the circuit became dim, was a warning that something was wrong in the transformer which re-fusing would not correct.

The trial court at the close of the evidence denied respondent City's motion for a directed verdict. The trial court pursuant to respondent Railroad's motion for a directed verdict, instructed the jury to return a verdict in favor of the Railroad for the reason that the Railroad was shown to be the statutory employer of decedent Russell. The case, as to respondent City was submitted to the jury. The jury thereupon returned a verdict in favor of respondents, and judgment was rendered accordingly. Appellants have appealed from the judgment.

Appellants, by grouping of their nineteen assignments, urge error committed by the trial court in particulars hereinafter set forth:

First: Appellants assign error of the trial court in granting the motion for a directed verdict in favor of respondent Railroad.

The trial court, by Instruction No. 22, instructed the jury to the effect that under the provisions of the workmen's compensation law, applied to the facts in the case, the Railroad was shown to be the statutory employer of Russell and not a third party tort feasor; that the Railroad could not be held liable in the action and that the jury return a verdict in its favor.

The portions of the contract, deemed pertinent here, between the Railroad and the Stockyards Company effective May 1, 1943, recite the requirement of the Railroad, in connection with its transportation of livestock, to water, unload, feed, rest and load livestock from time to time; that it has provided stockyards facilities at Idaho Falls for such purposes and that the Contractor (Stockyards Companies) represents its ability to operate the stockyards to the satisfaction of the Railroad.

The Railroad, under such contract, agrees to maintain, repair and renew the stockyards facilities, maintain existing electric wire lines and furnish all electric current for illumination, and all water in connection with the operation, of such facilities. The Contractor agrees to furnish feed, and to unload, water, feed, rest, care for and reload shipments of livestock in transit; load shipments of livestock originating at Idaho Falls, unload shipments destined thereto and keep records, the Contractor to be paid for the feed furnished and for its services by the Railroad.

The contract, in addition to the care of livestock in which the Railroad has a shipping or...