Schneider v. Southwestern Bell Tel. Co., 30873

• Decision Date: 20 February 1962
• Docket Number: No. 30873,30873
• Citation: 354 S.W.2d 315
• Parties: Harry F. SCHNEIDER, (Plaintiff) Respondent, v. SOUTHWESTERN BELL TELEPHONE COMPANY, (Defendant) Appellant.
• Court: Missouri Court of Appeals

Page 315

354 S.W.2d 315

Harry F. SCHNEIDER, (Plaintiff) Respondent, v. SOUTHWESTERN BELL TELEPHONE COMPANY, (Defendant) Appellant.

No. 30873.

St. Louis Court of Appeals, Missouri.

Feb. 20, 1962.

Rehearing Denied March 19, 1962.

H. P. Tudor, Edward P. Burke, Strubinger, Tudor, Tombrink & Wion, St. Louis, for appellant.

Charles T. Herrmann, James J. Butler, Hough, Herrmann, Nichols, Hormberg & Filippine, Clayton, for respondent.

HARRY A. HALL, Special Judge.

This is an action for personal injuries by plaintiff, Harry F. Schneider, against the defendant, Southwestern Bell Telephone Company, as owner and occupant of the building in which plaintiff was installing air-conditioning equipment. Plaintiff received an electric shock when he started to connect an air-conditioning unit which had been placed on an exposed electric wire. The jury awarded plaintiff $10,000 damages and defendant has appealed, assigning as error (1) the court's failure to sustain its motion for directed verdict; (2) the giving of plaintiff's verdict-directing Instruction No. 6; and (3) the court's failure to sustain defendant's motion for new trial because of the excessiveness of the jury's verdict.

The facts show that defendant undertook to install combination air-conditioning and heating units in its downtown St. Louis building and employed three independent contractors to do separate portions of the work. Plaintiff's employer, Sodemann Heat and Power Company, handled the metal work and piping, including the delivery of the units in the building; E. C. Dorsch Electrical Company did the electrical work; and Woermann Construction Company did the building and carpentry work. Plaintiff and his helper, Charles High, positioned and connected the units, and prior to February 15, 1956, the date of the accident, they had installed between fifty and sixty units, which were made of metal and were connected to copper tubing in the walls, which led to a central cooling and heating system. The unit in question was some 40 inches high, 55 inches long, 10 inches wide, and weighed about 200 pounds. The Woermann Company had previously prepared the walls and cut the baseboards so the units would fit flush with the walls. The Dorsch Company, in doing the electrical work, had placed temporary wiring at various places throughout the building, including room 604, where plaintiff was injured. This wiring ran along the baseboard, and at the openings where the baseboard had been removed it ran along the floor. At the opening in question, the wire looped out on the floor some six inches from the wall.

Room 604 was used by radio technicians employed by A. T. & T. and contained a bank of wet batteries on metal racks placed some three feet from the wall and close to the unit in question. Plaintiff had been warned of the batteries and had covered them with an asbestos sheet, but no warning had been given concerning the wiring. Plaintiff and High connected two units on the south wall the day before the accident, and at that time the unit in question was standing three or four inches from the wall in the same position where it was when plaintiff was injured. Neither saw the temporary wiring in this room prior to the accident, and both stated it was dark where the unit was located. Nor did plaintiff notice the wire at the time he kneeled down on the floor to inspect the connections prior to soldering the coupling.

As he touched the copper connection, he received a shock which threw him against the battery rack and to the floor. His coworker, Charles High, helped him from the room and he was taken to a doctor, who treated him. High inspected the unit immediately after the accident and stated 'the wire was bare for one or one and a half inches and looked like they used scrap to put in there.' It was 'spliced and taped and looked like someone had taken a knife and torn it off and like it was done where the unit had been set down on it.' The unit on testing registered an electrical charge of 110 volts where plaintiff had touched it.

The evidence does not disclose when the unit was placed in room 604, but it was sometime prior to February 14, the day before plaintiff was injured.

Defendant contends that plaintiff failed to make a submissible case in that the evidence did not show that defendant had actual or constructive notice superior to plaintiff, or actual knowledge of the unsafe condition, or that defendant had negligently permitted bare temporary wiring at random on the floor in room 604.

The law is well settled that defendant, as owner and occupant of its building, has the duty to exercise ordinary care and diligence to have its building in a reasonably safe condition for the use of an employee of an independent contractor who occupies the position of a business invitee. Where such employee is engaged in working on defendant's premises, the owner has a nondelegable duty to warn him of any condition unknown to him that was not safe or could not be made safe. In McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo., 323 S.W.2d 788, l. c. 794, where plaintiff, an employee of an independent paint contractor, was injured when he came in contact with an exposed 440 volt electric conduit while plainting the McDonnell building, the court said:

'McDonnell did have a nondelegable duty to Hartman's employee, Arbuckle, with respect to the condition of its premises where he was to work and certainly to warn him of any condition there, unknown to him, that was not safe or could not be made safe. ('The servant working on his master's premises is a business visitor and entitled to the protection of one,' Prosser, 374-376; and this obligation extends to the servants of an independent contractor working on the premises, Prosser, 374, note 6.)'

Ryan v. St. Louis Transit Co., 190 Mo. 621, 89 S.W. 865, 2 L.R.A.,N.S., 777; Szofran v. Century Electric Co., Mo.App., 255 S.W.2d 443.

Our courts have described electricity 'as one of the most dangerous agencies ever discovered by human science.' See Geismann v. Missouri-Edison Electric Co., 173 Mo. 654, 73 S.W. l. c. 659, 661, where, in holding the defendant light company liable for the death of a sign man who was shocked when a support wire of a street sign he was removing from a building fell across defendant's electric line which had worn and faulty insulation, the court said:

'* * * and, owing to that fact, it was the duty of the electric light company to use every protection which was accessible to insulate its wires at all points where people have the right to go, and to use the utmost care to keep them so; and for personal injuries to a person in a place where he has a right to be, without negligence upon his part contributing directly thereto, it is liable in damages. * * *

'It was not necessary, in order to plaintiff's recovery, to prove that at the exact point where the contact occurred the insulation was off the wire. If the defective insulation caused the injury without fault on the part of plaintiff, as he had the right to be where he was at the time of the injury, that was sufficient.'

In Ryan v. St. Louis Transit Co., supra, deceased, a pipe fitter employed by an independent contractor, was installing water pipe in defendant's building beneath several overhead electrical wires on which the insulation was deteriorated when he received an electric shock. The court held: '* * * the duty devolved upon the defendant of keeping the electrical wires near which the deceased was required to work in the performance of his duty in installing the oil pipes, so insulated and protected as to be safe for the deceased to work in their vicinity.'

Defendant employed Dorsch to install temporary wiring throughout the building, which was placed along the baseboard and ran on the floor across the openings where the baseboard had been removed for the cooling units. Unless secured, the wire could loop out away from the wall where it was subject to being stepped upon or otherwise damaged and the insulation broken. It extended some six inches out from the wall and was spliced and taped and looked as though scrap end had been used, and it was exposed for an inch or inch and one-half. Defendant's duty under the law to provide a safe place to work cannot be avoided by employing independent contractors, since such duty is one that cannot be delegated.

Plaintiff was where he had a right to be and was proceeding to connect this unit exactly the same as he had connected some fifty to sixty units during the five months of his employment. If, as charged, the defendant permitted partially bare temporary wiring to be placed on the floor where plaintiff was required to be in the performance of his duties, it was negligent. The evidence of plaintiff supported this contention, and we rule plaintiff made a submissible case.

Defendant claims error in plaintiff's verdict-directing Instruction No. 6 for (a) failure to negative its defenses of assumption of risk and negligence of fellow servant; (b) wrongfully placing a duty on defendant constantly to...