Shafer v. Southwestern Bell Tel. Co.

• Decision Date: 12 November 1956
• Docket Number: No. 2,No. 45016,45016,2
• Citation: 295 S.W.2d 109
• Parties: Edith Joyce SHAFER, Administratrix of the Estate of Henry Raymond Shafer, Deceased, Appellant-Respondent, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation, Appellant, and American Telephone and Telegraph Company, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 109

295 S.W.2d 109

Edith Joyce SHAFER, Administratrix of the Estate of Henry

Raymond Shafer, Deceased, Appellant-Respondent, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation, Appellant, and American Telephone and Telegraph Company, a Corporation, Respondent.

No. 45016.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1956.

Glennon T. Moran, St. Louis, George J. Moran, Moran & Beatty, Granite City, Ill., of counsel, for plaintiff-appellant.

John S. Divilbiss, John Mohler, Donald H. Sharp, St. Louis, for appellant, South-western Bell Tel. Co.

Dearing & Richeson, Will B. Dearing, Hillsboro, for respondent American Tel. & Tel. Co.

STOCKARD, Commissioner.

On the 14th day of July, 1952, Henry Raymond Shafer, then twenty-two years of age, met his death by electrocution. At the time he was an employee of Western Electric Company, a contractor engaged by Southwestern Bell Telephone Company (hereafter referred to as 'Bell'), and was working in the Beaumont exchange building in St. Louis, Missouri.

This suit for wrongful death was brought against Bell and also against American Telephone and Telegraph Company (hereafter referred to as 'A. T. & T.'). Plaintiff invoked the res ipsa loquitur doctrine. The principal allegation in the petition as to liability was that the defendants 'negligently and carelessly suffered, allowed and permitted the said Henry Raymond Shafer to become electrocuted by coming into bodily contact with said telephone equipment, and as a direct result thereof the said Henry Raymond Shafer died.' The jury returned a verdict in favor of plaintiff and against Bell in the amount of $15,000, but the verdict was against plaintiff and in favor of A. T. & T. Bell has appealed from the judgment against it, and plaintiff has appealed from the judgment in favor of A. T. & T.

Bell contends that the trial court erred in overruling its motion for a directed verdict and that plaintiff's verdict-directing instructions were erroneous. The substance of these contentions is that plaintiff failed to make a submissible case under the res ipsa loquitur doctrine.

In a res ipsa loquitur case the plaintiff has the burden of proving each factual ingredient necessary for a primafacie case including the burden of establishing that defendant was negligent. McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641; Frazier v. Ford Motor Co., Mo.Sup., 276 S.W.2d 95. However, in determining the sufficiency of the evidence to sustain the trial court's judgment for plaintiff and against Bell we must consider plaintiff's evidence as true, and also Bell's evidence wherein it aids plaintiff's case, and give plaintiff the benefit of every legitimate inference. Caswell v. St. Louis Public Service Co., Mo.Sup., 262 S.W.2d 40. 'A factor bearing on the quantum of proof to make a submissible res ipsa case on defendant's negligence is the duty owed the plaintiff [in this case Shafer] by the defendant.' Frazier v. Ford Motor Co., supra .

On the night of his death Shafer had been instructed by his foreman to perform the uncomplicated job of lacing telephone cable in the key indicator room of the Beaumont exchange building owned by Bell. The telephone cables were on a rack near the ceiling of the room about 14 feet above the floor. Shafer used a wooden stepladder to reach them. Nearby was a fuse panel owned by Bell extending from the floor to the ceiling which contained fuses for individual telephone circuits. About 15 inches in front of the fuse panel and attached to the ceiling was a fluorescent light fixture with a metal shade which was properly grounded. Near the floor the circuits in the fuse panel carried direct current of 24 and 48 volts, and beginning about ten feet above the floor the circuits carried direct current of 130 volts. There was nothing about Shafer's work which required him to contact the fuse panel or any other equipment carrying electricity. All fuses on the panel would give an electrical shock to one touching them who was 'grounded,' the severity of the shock depending on the voltage and the effectiveness of the contacts made with the fuses and the 'ground.' The night of July 14, 1952, was warm, and a sweaty condition causes one to be more susceptible to electric shock in the event of a contract with an electrically charged wire or appliance because sweat is a good conductor of electricity.

There were no witnesses to the occurrence which resulted in the death of Shafer. About ten minutes before he was electrocuted a fellow employee of Western Electric Company spoke to him while he was at the top of the ladder. A short time later another employee heard a moan and the sound of someone falling. Shafer was found on the floor at the bottom of the ladder. First aid was administered but he died before reaching the hospital.

The chief pathologist for the coroner testified that Shafer had three traverse burns on his right shoulder, a superficial laceration of the outer surface of the right foot, a subcutaneous and intradermal hemorrhage over the left scapula, and burns superficially along the right arm near the shoulder. He diagnosed the cause of death as electrocution. Based upon his examination he was of the opinion that the electric current probably entered Shafer's body at the right shoulder and that the point of exit was in the region of the left scapula.

While Shafer was still on the floor receiving first aid an employee of Bell received a call that something was wrong in the key indicator room. Upon arriving there he found a yellow light burning which indicated 'fuse alarm trouble.' A number of fuses in the 130-volt area of the panel were 'smashed and pushed to one side.' He straightened those he could and replaced the others. In doing this he touched the bare fuses without ill effect, but he was not grounded. No other trouble of any kind was located and no improperly functioning equipment was found. The following morning tests were made, and it was found that the potential between the fuses in the upper portion of the panel and the grounded shade of the fluorescent light fixture was exactly 130 volts, and no unusual or abnormal condition was found.

In general the res ipsa loquitur doctrine does not apply except when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) the defendant possesses superior knowledge or means of information as to the cause of the occurrence. McCloskey v. Koplar, 329 Mo. 527, 533, 46 S.W.2d 557, 559, 92 A.L.R. 641. It is admitted that the fuse panel was under the management and control of Bell. Neither plaintiff nor Bell have much knowledge as to the cause of the occurrence in this case, but we are of the opinion that for the purpose of the res ipsa loquitur doctrine Bell possessed superior means of information as to the cause. This leaves only the question of whether condition '(a)' above is met.

Notwithstanding statements in a few cases indicating the contrary, plaintiff in a res ipsa loquitur case is not required to present evidence overthrowing every reasonable theory of nonliability on the part of the defendant, Warner v. Terminal Railroad Association of St. Louis, 363 Mo. 1082, 257 S.W.2d 75; and to invoke the doctrine it is not requisite that plaintiff's case be such as to exclude every hypothesis but that of defendant's negligence. Cruce v. Gulf, Mobile & Ohio Railroad Co., 358 Mo. 589, 216 S.W.2d 78. However, the attendant facts must raise a reasonable inference of defendant's negligence. Maxie v. Gulf, Mobile & Ohio Railroad Co., 358 Mo. 1100, 219 S.W.2d 322, 10 A.L.R.2d 1273. The doctrine cannot be invoked where the existence of negligence is wholly a matter of conjecture and the circumstances from which negligence may be inferred are not proved but must themselves be presumed. Charlton v. Lovelace, 351 Mo. 364, 173 S.W.2d 13; Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509, 512.

Plaintiff's announced theory was that ordinarily 130 volts 'would not be harmful and decedent was killed by an excessive amount of electric current.' However, not only does the evidence not support this, plaintiff's evidence establishes the contrary. The electric current at the fuse panel was direct current (commonly referred to as 'DC') and was supplied to the panel from batteries owned and maintained by A. T. & T. and located in the basement of the building. Plaintiff's position is that 130 volts DC are not ordinarily fatal to one coming into contact therewith, and, therefore, the fuse panel necessarily had to have an excessive amount of electric current because Shafer was killed by the electric charge. Plaintiff places considerable reliance on the testimony of her witness, who was the head repairman of Bell, who testified that he always had been of the opinion that '130 volt DC potential was not hazardous.' But he qualified this by saying that this was based 'on personal experience,' and when asked if 'for one to be killed, it would be necessary that many more than 130 volts would have been up there at the time,' he answered: 'I have no way of knowing, since a number of things would enter into it, chiefly the points of contact, or the path of current through the body--in my opinion.' This testimony does not tend to support a conclusion either way, but plaintiff's witness, Dr. John J. Conner, chief pathologist of the coroner's office, testified that he had examined other electrocution cases where people had come into contact with 130 volts or less, and he then stated unequivocally that 130 volts or even less under proper conditions can cause death. In order for the jury to find that there was more than 130 volts on the fuse panel it would first have to find, contrary to the evidence of the plaintiff and with no evidence to the contrary, that 130 volts would not kill a person who came into...