Tellis v. Union Elec. Co.
| Decision Date | 17 February 1976 |
| Docket Number | No. 36749,36749 |
| Citation | 536 S.W.2d 742 |
| Parties | Eva S. TELLIS, Plaintiff-Respondent, v. UNION ELECTRIC COMPANY, a corporation, Defendant-Appellant. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Keefe, Schlafly, Griesedieck & Ferrell, William H. Ferrell, Martin J. Toft, St. Louis, for defendant-appellant.
Klamen, Summers & Compton, Robert Summers, Daniel S. Hapke, Jr., Maureen Swihart, Clayton, for plaintiff-respondent.
A jury awarded plaintiff, Eva S. Tellis, $50,000 damages against defendant, Union Electric Company (Union Electric), a corporation, for the wrongful death of her husband, Joseph Tellis, who was electrocuted when the boom on a truck being operated by him came into contact with an overhead uninsulated electric wire. Union Electric appeals from the court's entry of judgment on the verdict.
Union Electric contends that the trial court erred in that (1) plaintiff failed to make a submissible case because the evidence failed to establish foreseeability, (2) the evidence showed the decedent to be contributorily negligent as a matter of law; and (3) the plaintiff's verdict director was erroneous. Since we hold that plaintiff's decedent was contributorily negligent as a matter of law, we reverse and remand with instructions to the trial court to enter judgment for defendant without any discussion of point number three.
In considering the question of negligence and contributory negligence, we view the evidence from the standpoint favorable to plaintiff, give plaintiff the benefit of all reasonable inferences therefrom, give plaintiff the benefit of any of defendant's evidence favorable to plaintiff and not contrary to the fundamental theory of her case, and disregard defendant's evidence unfavorable to plaintiff. Donovan v. Union Elec. Co., 454 S.W.2d 623(1) (Mo.App.1970).
From the evidence the jury could have reasonably found the plaintiff's decedent, Joseph Tellis, age 52, drove and operated a boom type truck for an independent contractor, who sold and supplied concrete and brick products. On the morning of July 17, 1972, decedent delivered three to five pallets of blocks to the residence of Richard Chapman, who lived on Park Court in Maryland Heights, Missouri. The blocks were to be used for the construction of a swimming pool.
Since Park Court was a circular street and there was no driveway or roadway to the back of the Chapman home, access to the rear could only be made by driving through a ball field or park which was to the north of Chapman's rear fence. Marvin Wyatt, an employee of Chapman, gave decedent directions on how to get to the rear of the Chapman home.
The swimming pool excavation was between the fence and the back of the Chapman home. At the northern edge of the swimming hole excavation were two electric lines; one, an uninsulated primary line, twenty-five feet above ground, carrying 7200 volts, the other, a parallel secondary line, eighteen feet above ground, carrying 240 volts. The span between the two poles by which the wires were suspended was one hundred eighty feet. Both lines exceeded the height standards for overhead electric distribution lines established by the National Electric Safety Code.
The mast, to which the boom was attached, extended from the bed of the truck to a point twelve feet, four inches above the ground. The boom was eighteen feet long.
The maximum height of the boom above ground level was twenty-seven feet, six inches. On the top preliminary line was a burn mark at a point eighteen feet, ten inches above the ground--three feet, ten inches above the code minimum standards. A twelve inch burn mark was on the top right hand side of the tip of the boom.
From the exhibits offered by both parties, in plain view was a large transformer on the pole suspended by the two wires located at the northeast corner of the Chapman's fence line. Tellis' boom came into contact with the primary line at a point sixty-seven feet, six inches west of the transformer.
On the morning in question, the decedent first attempted to deliver a pallet of blocks into the excavation by inserting the boom between the rear fence and the parallel secondary wire. Because Tellis was unable to successfully complete this maneuver, Chapman removed the rear fence. After the removal of the fence, the decedent, with the boom almost in a horizontal position successfully placed the pallet of blocks into the excavation. The next load, however, was to be placed on top of the first. In attempting to place the second pallet of blocks the decedent placed the boom between the primary (top) line and the secondary (lower) line. During this maneuver, the boom came into contact with the top line, which resulted in Tellis' death. Neither Chapman nor Wyatt saw what caused the contact.
Chapman testified that not only did decedent, prior to making a delivery of the blocks, look at the wires but also that he told decedent about the wires and warned him to stay away from them and to be 'awfully careful of them.'
Both Chapman and Wyatt testified that four to six times, during the first and second deliveries of pallets of blocks, the boom swayed three to four feet. Each time Tellis corrected the swaying, but every two to three minutes the swaying would recur. Neither, however, was able to testify as to what happened on the third and fatal delivery. Both agreed that when the injury occurred the boom was in contact with the higher primary wire.
Our first concern is whether plaintiff made a submissible case of primary negligence against Union Electric.
In Donovan v. Union Elec., 454 S.W.2d 623, 626 (Mo.App.1970), citing with approval Foote v. Scott-New Madrid-Mississippi Elec. Co-op., 359 S.W.2d 40, 43 (Mo.App.1962), we held that an electric company is not an insurer of the safety of persons and its liability is determinable upon principles of negligence. In this regard, Union Electric is obligated to exercise the highest degree of care either to insulate its transmission lines adequately or to isolate them effectively wherever it reasonably may be anticipated that others may lawfully come into close proximity to its lines and thereby may be subjected to a reasonable likelihood of injury. Erbes v. Union Elec. Co., 353 S.W.2d 659 (Mo.1962). In short, the law requires Union Electric to use the highest degree of care to prevent injury which it could reasonably anticipate.
While anticipation, or foreseeability, of harm because of acts or omissions of Union Electric is an essential element in determining liability, Gladden v. Missouri Public Service Co., 277 S.W.2d 510 (Mo.1965), it is unnecessary that Union Electric anticipate either the exact injury or the exact manner in which the injury occur. Lebow v. Missouri Public Svc. Co., 270 S.W.2d 713 (Mo.1954).
In Foote, we held that test to establish the element of foreseeability by a defendant is whether the jury could have fairly found that, in the exercise of the highest degree of care, a defendant could have reasonably anticipated that some injury was likely to have occurred to one lawfully near its transmission line. In Hamilton v. Laclede Elec. Co-op., 294 S.W.2d 11, 14 (Mo.1965), the court held, however, that even where the highest degree of care is demanded of an electric utility company, it is only bound to guard against those occurrences which can be reasonably anticipated by the utmost foresight.
From our review of the evidence, we hold that plaintiff's evidence did establish a case of primary negligence against Union Electric. The evidence that influenced our conclusion is that the area where decedent met his untimely death was a populous residential area; that the electrical wire which caused the decedent's death was uninsulated and carried 7200 volts of electricity; that Union Electric knew that the Chapman residence was in a residential and populous area; that Union Electric knew that boom trucks, prior to 17 July 1972, were used in residential areas for building and remodeling purposes; that Union Electric knew of three similar accidents in the Maryland Heights area; and that Union Electric's reliance upon Majors v. Ozark Power & Water Co., 205 Mo.App. 337, 222 S.W. 501 (1920) and the Foote and Donovan cases is misplaced.
In Majors, which was not a boom contact case, plaintiff's husband who was standing near the stump of the tree when it fell, walked voluntarily toward the top of the tree lying in the street and somehow came into contact with the live wires that had been broken as the tree fell. One of the bases for the court's decision, sustaining the directed verdict for the utility company, was that it was not reasonably foreseeable that a healthy shade tree located in a...
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