Schley v. Structural Metals, Inc.

• Decision Date: 20 December 1979
• Docket Number: No. 5958,5958
• Citation: 595 S.W.2d 572
• Parties: W. G. SCHLEY et al., Appellants, v. STRUCTURAL METALS, INCORPORATED, Appellee.
• Court: Texas Court of Appeals

Page 572

595 S.W.2d 572

14 A.L.R.4th 890

W. G. SCHLEY et al., Appellants, v. STRUCTURAL METALS, INCORPORATED, Appellee.

No. 5958.

Court of Civil Appeals of Texas, Waco.

Dec. 20, 1979.

Rehearing Denied March 6, 1980.

Stephen F. Lazor, Richard E. Tinsman, Tinsman & Houser, Inc., San Antonio, for appellants.

Hubert W. Green, John T. Reynolds, Green & Kaufman, Inc., San Antonio, for appellee.

HALL, Justice.

Appellee Structural Metals, Inc. (SMI) owns and operates a steel mill near the City of Seguin in Guadalupe County. Scrap metal is melted in electric furnaces and then cooled into ingots which are formed at the mill into saleable products. The mill is in continuous operation.

The electric furnaces are housed in a building known as the "melt shop." The furnaces generate dust and other air pollutants which must be extracted from the melt shop. This is handled by a pollution control system known as "baghouses," which are metal buildings located outside the melt shop. The air from the melt shop is pulled into the baghouses through large steel pipes where the pollutants are filtered out and collected.

In 1973, SMI contracted with Commercial Contracting Company of San Antonio, Inc. (Commercial) for the construction of an additional baghouse to its pollution control system to be known as "C-baghouse." At the time in question in this lawsuit, C-baghouse was under construction by Commercial. It is undisputed that Commercial was an independent contractor on this project.

Under their contract, SMI furnished the plans and specifications and materials for the construction of C-baghouse, and Commercial furnished the labor. SMI also supplied Commercial the use of certain equipment for moving the materials to a fabrication location known as the "monorail" and for removal of the materials from the monorail to the C-baghouse site, and a crane for lifting the heavy fabricated metal pieces into place at the C-baghouse. Eventually in the construction it became necessary for SMI to provide Commercial with a larger crane with a longer boom than was on the original smaller crane provided, in order to lift fabricated materials onto the top of C-baghouse. To fill this need, SMI leased a hydraulic Drott crane from Plains Machinery Company. The Drott crane had been purchased by Plains Machinery from the manufacturer, J. I. Case Company. The Drott crane was delivered to SMI's plant by Plains Machinery on December 3, 1973. After inspection by representatives of SMI and Commercial, the Drott crane was placed near the C-baghouse for use there.

The electricity for SMI's operations is furnished by Guadalupe Valley Electric Cooperative, Inc. (GVEC) by two sets of overhead transmission lines. Each set carries 69,000 volts of electricity. Both sets of lines are energized, but one is a "standby line" in the event the other becomes inoperable. One set approaches SMI's premises from the northeast (the east lines); the other approaches from the northwest (the west lines). Soon after entering SMI's premises, the sets of lines are attached to separate poles. Those poles are 220 feet apart. The east lines then travel overhead in a southwesterly direction 395 feet to a second pole located near the northeast corner of an electrical substation located on SMI's plant premises. The west lines travel overhead 380 feet in a southeasterly direction to a second pole located near the northwest corner of the electrical substation. The poles near the substation are 95 feet apart. From those poles, the lines run directly into the substation. From the substation, the electric lines serving SMI's plant are underground.

In their travels between the poles, both sets of lines cross over a 21-foot-wide paved road on SMI's premises. The road runs east and west along the north side of the main grounds of SMI's mill. The center of the road is 165 feet south of the north pole supporting the east lines, and is 230 feet north of the south pole supporting those lines; and it is 180 feet south of the north pole supporting the west lines, and 200 feet north of the south pole supporting those lines. The east and west lines are 165 feet apart at the points where they cross the center of the paved road. At the time in question in this case there were no signs along the road warning of the overhead lines, no aerial markers on the line, and no barrier guards on either side of the lines where they crossed the road. However, there were no objects between the road and the lines to obstruct a view of the lines from the road. On the morning of December 3, 1973, W. G. Schley and Clifford Diebel, using the Drott crane, began moving several sections of large steel pipe to the monorail from an area near the road east of the east lines. Their route to the monorail was west along the road, and it carried them under the east lines and the west lines. Each section of pipe they intended to move was forty feet long, six feet in diameter and weighed 7,800 pounds. The pipe had been furnished by SMI for Commercial's use in construction of C-baghouse; and it had been placed at its location near the road east of the east lines upon the instructions of SMI's supervisor at the time of its delivery to the plant.

Schley and Diebel were employees of Commercial. Diebel was operating the crane from inside its cab. Schley was on the ground and was acting as flagman for Diebel. Schley was Diebel's foreman, and he had helped train Diebel to operate cranes. Schley's duties as flagman were to direct Diebel's movement of the crane by hand signals, and to watch for obstructions which might interfere with the movement of the crane and the pipe down the road. Schley and Diebel completed delivery of one section of pipe to the monorail, and returned for another. Because of the length of the pipe and the location of debris along the road, it was necessary for them to angle the pipe lengthwise with the road. Also, because of its size and weight, the pipe was unwieldy and difficult to move with the crane. Schley and Diebel sought to stabilize it by placing it against the crane. Dalton H. Brandt, a pipefitter for Commercial working under Schley's supervision, apparently saw that Schley and Diebel were having difficulty positioning the second section of pipe for removal down the road, and came to their aid. He arrived just as Schley and Diebel were ready to begin moving the pipe, and he began pushing against the pipe with both hands. Schley was pushing against the pipe with one hand. After the crane had moved "not very far" down the road, "just a few feet or a few yards," the boom of the crane either struck the bottom wire of the east lines, or the boom came sufficiently close to it for electricity to arc from the wire to the boom. Although Diebel, being in the cab of the crane, was not injured, Schley and Brandt suffered severe electrical shock and burns to their bodies. Brandt died enroute to the hospital. Schley survived, but his injuries required the amputation of his left arm at the shoulder and the amputation of both his lower limbs between the ankles and the knees.

Schley filed suit against SMI and J. I. Case for his damages. Gladys Brandt, the widow of Dalton H. Brandt, filed suit individually and as executrix of Mr. Brandt's estate for damages against SMI, J. I. Case, and Plains Machinery. In both cases, SMI filed third-party actions against J. I. Case, Plains Machinery, and GVEC. The cases were consolidated for trial.

Trial of the consolidated case began before a jury on October 31, 1977. Prior to selection of the jury, plaintiffs settled their respective actions against J. I. Case and Plains Machinery, and took nonsuits as to those defendants. In those settlements, Schley received $285,000.00 and Mrs. Brandt received $110,000.00. On November 16, 1977, after plaintiffs had rested their case and SMI's motion for instructed verdict had been overruled, SMI took nonsuits on its actions against J. I. Case, Plains Machinery, and GVEC. The trial then proceeded on plaintiffs' suits against SMI.

Both sets of electric transmission lines were constructed by GVEC for SMI in the late 1950's under a written contract. Although SMI provided the easements across its property for the lines and the electric substation, it is undisputed in the record that the lines and the substation were owned, controlled, and maintained by GVEC. It is also undisputed that after the lines were installed by GVEC the paved road under the lines upon which the accident in question occurred was built by Structural Metals without first consulting GVEC; that at the place of its involvement with the crane boom the bottom line of the east lines was 28.4 feet above the road; and that five, six, or seven years prior to this accident, probably in 1968, the same place on this line was struck by a device known as an "A-frame" while the A-frame was being hauled along the road on a truck. No one was injured in the A-frame incident.

There is proof that SMI had a rigidly enforced rule against the use of cranes for transporting materials down the paved road beneath the lines or anywhere on its premises without the permission of its supervisors; but there was other evidence that the employees of Commercial were not apprised of the rule, that the rule was not in fact enforced by SMI, and that SMI's employees and employees of independent contractors on the premises frequently used cranes and other equipment for transporting materials along the road under the lines.

GVEC's representative testified that the line in question was 3/8 in diameter. However, a piece of line introduced in evidence by SMI and represented by it to be a part of the line involved in the accident is 1/2 in diameter. It is made of seven tightly wound strands of aluminum cable. The strands are not painted, but the outside of the line ranges in color from grey to light brown from weathering.

Disputed issues in the case concerned the visibility of the east and west lines; knowledge...