Troutman v. International Harvester Co.

• Decision Date: 10 April 1948
• Docket Number: No. 1376.,1376.
• Citation: 83 F. Supp. 501
• Court: U.S. District Court — Western District of Kentucky
• Parties: TROUTMAN v. INTERNATIONAL HARVESTER CO. (STRUCK CONST. CO., third-party defendant).

83 F. Supp. 501

TROUTMAN v. INTERNATIONAL HARVESTER CO. (STRUCK CONST. CO., third-party defendant).

No. 1376.

United States District Court W. D. Kentucky, at Louisville.

April 10, 1948.

Cohen & Fisher and Lawrence S. Grauman, all of Louisville, Ky., for plaintiff.

Hubert T. Willis and Bullitt & Middleton, all of Louisville, Ky., for International Harvester.

Wm. F. Clarke, of Louisville, Ky., for Struck Const. Co.

SHELBOURNE, Chief Judge.

This action is now before this Court upon two motions, both filed by defendant and third party plaintiff, International Harvester Company and third party defendant Struck Construction Company.

The first motion is to set aside the verdict of the Jury and to enter a judgment in favor of the defendant International Harvester Company, a procedure provided by Rule 50(b) of the Federal Rules of Civil Procedure, Title 28 U.S.C.A.

The second motion is to set aside the verdict of the Jury and the judgment entered thereon and to grant a new trial.

The action was filed July 7, 1947 by Nellie I. Troutman, Administratrix of the estate of her deceased husband Phillip A. Troutman, who died June 12, 1947, as the result of injuries received while employed as a carpenter by the Struck Construction Company in the construction of a building comprising part of the plant of the International Harvester Company, located on Crittenden Drive near Louisville, Kentucky.

The complaint, as amended, alleges that decedent was assisting in plumbing a door jamb and was working twenty-six feet above ground when he came in contact with an angle iron charged with a heavy voltage of electricity, which contact caused decedent to fall and receive injuries which immediately caused his death.

The negligence alleged in the complaint, as amended, is (a) failure on the part of the defendant to place a guard around the angle iron charged with electricity (b) failure to place a warning sign to indicate the danger (c) failure to furnish decedent a safe place in which to work.

It is stated that decedent did not know and could not, by ordinary care have known, of the alleged dangerous condition and that defendant did know or could have known the danger, by the exercise of ordinary care, and that defendant failed to warn decedent of the danger incident to doing the work at the place where he was directed by his foreman to go at the time he received his injuries.

A third party complaint was filed by the defendant International Harvester Company against the Struck Construction Company on October 17, 1947, in which it was alleged that the Construction Company was engaged by contract to do certain construction work on the Harvester Company's plant and that under and by virtue of the terms of the contract the former agreed to protect and save harmless the Harvester Company from any and all claims, damages, demands, etc. for injury, including death, to any person including servants and employees of the parties thereto.

Struck Construction Company filed its answer to the third party complaint.

The answer of the Harvester Company to the petition of the plaintiff admitted the capacity of the plaintiff to sue and the corporate entity of the defendant Harvester Company; otherwise denying all the allegations of the petition and by an amended answer filed November 19, 1947, alleged that at the time of his injury, decedent Troutman, by his own negligence so contributed to his injuries and death that but for his negligence, the accident would not have occurred.

By a second amendment filed December 4, 1947, made the additional defense of assumed risk on the part of Troutman; alleged that the risk of electrical shock and fall which was claimed as the cause of his death, were among the risks assumed by the decedent in entering the employment of the Construction Company.

Upon the issues so made by the pleadings, the case came to trial to a Jury on December 15, 1947. The Jury returned a verdict for the plaintiff in the sum of $17,000, for which judgment was entered.

The Harvester Company seasonably filed its motion to set aside the verdict and the judgment entered thereon; to enter judgment for the defendant in accordance with its motion for a directed verdict made at the close of the introduction of all the evidence upon the trial.

In support of its motion, it was alleged that there was no evidence of negligence on the part of defendant International Harvester Company and that the evidence in the case showed conclusively that the injuries sustained by the decedent were the proximate result of his own negligence and that the verdict of the Jury was in direct violation of the instructions of the Court.

The reasons urged in the motion for a new trial were eleven in number, as follows:

1. The verdict is contrary to law.

2. There was no substantial evidence that the injury or death of decedent was the proximate result of any negligence of the International Harvester Company.

3. That the evidence conclusively showed that the death of decedent was the proximate result of his own negligence.

4. Error of the Court in permitting plaintiff to introduce certain evidence over defendants' objections.

5. Error of the Court in refusing to admit certain evidence offered by defendant.

6. Error of the Court in refusing to direct a verdict for the defendant.

7. Error of the Court in instructing the Jury that it was the duty of the Harvester Company to furnish decedent a reasonably safe place in which to work.

8. That the verdict is excessive.

9. That the verdict was against the weight of the evidence, both with respect to the absence of negligence on the part of the Harvester Company and with respect to the contributory negligence of decedent.

10. Newly discovered evidence.

11. Because the verdict of the Jury was arrived at by each member writing down on a piece of paper the amount which he or she believed the verdict should be and divided the total by twelve, which last named amount became the verdict of the Jury.

Both counsel for the Harvester Company and for Struck Construction Company vigorously and ably contend that the motion filed pursuant to Rule 50(b) of the Rules should be sustained.

In support of the motion for a new trial they have limited their discussion to four of the eleven reasons assigned in the motion — that is —(1) The quotient verdict, (2) Newly discovered evidence, (3) The verdict was contrary to the evidence, and lastly, the Jury verdict was contrary to the instructions.

The decedent, Troutman, at the time of his death was forty-seven years old and had been employed by the Construction Company as a carpenter, largely in the construction of wooden forms in which the concrete was poured for foundations at the plant of the Harvester Company. The buildings were of steel construction and in the particular building where the accident occurred it was discovered that a door jamb was out of plumb and there had been some controversy between the steel construction workers and Struck's foreman as to whether the door jamb being out of plumb was the fault of Struck or the steel constructors.

Admittedly, before the building was completed, there had been installed equipment consisting of rails supported by angle irons which were charged with 440 volts of electricity. Upon these rails, there was operated an overhead crane. There is some dispute in the testimony as to whether warning signs were attached to the rails.

The witness Lee Lewis testified that no signs were up when the accident occurred.

George Hite, member of the carpentry crew, testified that when Troutman was directed to climb up the steel frame work at the end of the building to the top of the door jamb to be plumbed, that he said to Troutman "It is hot as hell up there Dutch." The witness E. W. Shilt, an employee of the Steel Contractor, Homer Rosser, Superintendent in charge of the steel construction and Robert Nalley, all warned Troutman either before he left the ground to climb up the frame work of the building or while he was up there that "those rails are hot; they will reach out and grab you." The evidence is that by the term "hot", they were referring to the charge of electricity in the rails and angle irons.

The testimony is not clear as to exactly how Troutman came in contact with the current of electricity, as no one seems to have been observing him at the exact moment of his contact, but it is undisputed that he did come in contact with the angle iron or rail and was knocked from a point from twenty to twenty-six feet high to the ground, sustaining injuries which caused his death.

Counsel for the parties agree that under the rule of Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, the law, as announced by the Kentucky Court of Appeals, controls. See also Detroit, Toledo & Ironton Railroad Company v. Yeley, 6 Cir., 165 F.2d 375.

It therefore may be stated that the defenses of contributory negligence and assumed risk under the Kentucky law are, each, complete defenses.

In the case of Porter et al. v. Cornett, 306 Ky. 25, 29, 206 S.W.2d 83, 85, the Court of Appeals said: "The doctrine of `assumption of risk' historically arose under the general law of master and servant, and has for the most part been deemed a matter of contract. In negligence cases the same concept has been generally accepted as contributory negligence. In their legal effect, the two doctrines are identical. They deny the right of recovery where the injured person with knowledge of a dangerous situation voluntarily places himself in a position where he takes the chance of being hurt. * * *"

Quoting from the case of Sutherland v. Davis, 286 Ky. 743, 151 S.W.2d 1021, the Court continued — "The assumption of risk of a danger amounts to contributory negligence so as to bar recovery when the injured person is aware of the conditions which create the danger and in addition thereto appreciates in his own mind the danger attendant upon...