Weakley v. Fischbach & Moore, Inc.

• Decision Date: 21 July 1975
• Docket Number: No. 74-1499,74-1499
• Citation: 515 F.2d 1260
• Parties: Earl WEAKLEY et al., Plaintiff-Appellee, v. FISCHBACH & MOORE, INC., et al., Defendants-Third Party Plaintiffs-Appellants, v. GOODYEAR TIRE AND RUBBER COMPANY, Third Party Defendant-Appellee, Standard Fire Insurance Company, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1260

515 F.2d 1260

Earl WEAKLEY et al., Plaintiff-Appellee, v. FISCHBACH & MOORE, INC., et al., Defendants-Third Party Plaintiffs-Appellants, v. GOODYEAR TIRE AND RUBBER COMPANY, Third Party Defendant-Appellee, Standard Fire Insurance Company, Intervenor-Appellee.

No. 74-1499.

United States Court of Appeals Fifth Circuit.

July 21, 1975.

Herbert Boyland, Blake C. Erskine, Longview, Tex., for defendants-third party plaintiffs-appellants.

Charles F. Potter, Tyler, Tex., for Earl Weakley and Aetna Casualty.

Otto A. Ritter, Longview, Tex., for Goodyear Tire.

Appeal from the United States District Court for the Eastern District of Texas.

Before WISDOM and DYER, Circuit Judges, and CHRISTENBERRY, District Judge.

WISDOM, Circuit Judge:

This diversity suit arises out of an electrical explosion at the Kelly-Springfield Tire Company plant in Tyler, Texas. On November 6, 1970, Earl Weakley had called together Thomas McKay, Charles Baker, and Martin Kennedy for a demonstration of an "isolator switch". At the time, they believed there was no current passing through the switch. Unhappily they were wrong. When Weakley moved the switch, he caused a 2300 volt current to arc, burning him over nearly half his body and burning McKay, Baker, and Kennedy less seriously. The four sued Cutler-Hammer, Inc., the manufacturer of the electrical equipment, alleging that it had designed unreasonably dangerous equipment and was liable in negligence and strict liability in tort. They also sued Fischbach and Moore, Inc., the electrical contractor that installed the equipment, charging it with negligence in failing to install required safety door switches. The defendants impleaded Goodyear Tire and Rubber Company, Kelly-Springfield's parent company, for negligence in the design of the equipment. ¹ The jury, in a general verdict accompanied by answers to interrogatories, held against Fischbach and Moore both in the main action and on its third party claim against Goodyear. Fischbach and Moore appeals. We affirm.

I

The equipment involved is a part of an electrical system designed to receive, channel, and regulate electrical power supplied to a group of ten rubber mills. 138,000 volts, furnished by the local power company, enter the plant at the Main Power Sub-Station where they are stepped down by a transformer to 2300 volts. The 2300 volt charge is carried by either the "working" or the "emergency" cable to the "incoming line cubicle" where it is routed through the "isolator switch" to the "motor controllers" and thence to the 400 horsepower motors that drive the mills. This circuit, though charged by the power source, carries no current if no mill motor is running. A current is made when any mill motor is started and is broken when all motors are shut down.

The isolator switch links the incoming power cables with the line feeding power to the motor controllers. It may be set to receive incoming power from the working cable or from the emergency cable or, in the neutral position, to isolate the motor controllers from the incoming power, preventing any current from reaching them. It is, however, what is known in the trade jargon as a "no load break switch". It has no interrupting rating and cannot be used to break an electrical current. When the circuit carries the 2300 volt current, that is when any mill motor is running, the isolator switch is "under load". Moving the switch from one position to another while it is under load is likely to generate an electrical arc. Anyone using the switch must therefore first shut down the mills motors to break the current and must make certain that no motor can be reactivated while the switch is being moved.

Two sets of devices, particularly, are designed for that purpose. One is the set of disconnect buttons and switches on the individual motor controllers located next to the incoming line cubicle. So long as these are in the disconnect position, the mill motors cannot operate. The other is the set of safety door switches mounted inside the door of the incoming line cubicle. The safety door switches are an integral part of the control wiring of the motor controllers. They close the circuit, allowing the motors to function. When the door to the incoming line cubicle is opened, each switch opens the control circuit of its corresponding motor controller, depriving the motors of electrical power and interrupting the current flowing through the isolator switch. So long as the door remains open, the mill motor cannot operate and there can be no current flowing through the circuit and the isolator switch. These switches thus assure that no one can have access to, much less operate, the isolator switch while it is under load. Because these switches operate to break the electrical power and shut down the mills, opening the incoming line cubicle door when the plant is in operation disrupts production. The isolator switch, therefore, is usually handled only on weekends or at other times when the mills are shut down.

The day of the accident seemed to Weakley, it appears, a good time to demonstate the isolator switch to recently hired electricians. Kelly-Springfield personnel were then gearing up the plant to resume production after a long strike, and the mills, Weakley remarked at the time, were still shut down. Walking toward the switch Weakley and the others passed the mills and saw none in operation. Reaching the incoming line cubicle, they looked down the banks of motor controllers, checking the pilot lights to see if any mills were running. Having confirmed his belief that the mills were still "down", Weakley opened the door to the cubicle and heard a bump, a noise like that made when a mill controller turns on or off virtually the same sound in either event. There were other controllers in the area on a separate electrical system that might have made the sound, but Weakley nonetheless rechecked the pilot lights. He remarked that he must have "dropped a mill off the line" and, having already done so, he might as well proceed with the demonstration. For about five minutes he explained the function and use of the isolator switch. He indicated the door switches and explained that they deenergized the mill motors when the door was opened and prevented them from being reactivated until the door was closed. Concluding his explanation, he moved the switch, and the explosion occurred.

Investigation after the accident revealed that there were only eight, not ten, safety door switches. For mills 11 and 12, jumper wires had been used in place of door switches to close the circuit. Thus, when Weakley opened the door to the incoming line cubicle, there were no switches to prevent mills 11 and 12 from being activated in the midst of the demonstration or to deenergize them if, in spite of the pilot lights, they had already gone into operation before Weakley opened the door.

This electrical system had been designed by Goodyear technicians, subject to approval by Kelly-Springfield. The original plan called for only eight mills, so that when Cutler-Hammer shipped the incoming line cubicle, it contained only four two-way switches, enough to accommodate the mills then contemplated. When, later that year, a decision was made to expand the plant by adding mills 11 and 12, Cutler-Hammer shipped no additional door switches. There is no evidence that any were ordered. There is no dispute, however, that the final design required that two additional switches be added and that it was the duty of Fischbach and Moore to procure and install them.

II

The appellant's principal contention is that there was insufficient evidence to support the jury's finding, necessary to the verdict, that Fischbach and Moore had failed to install door switches for mills 11 and 12 and had, in their stead, installed the jumper wires. We conclude, to the contrary, that the evidence, though circumstantial, was nonetheless sufficient under the Boeing standard to defeat the appellant's motions for directed verdict and judgment notwithstanding verdict. Boeing Company v. Shipman, 5 Cir. 1969,411 F.2d 365 (en banc). ²

Investigation after the accident revealed four two way switches of the type originally installed when the first eight mills were completed. The jumper wires found were of the same type of wire used by Fischbach and Moore to install related equipment, a type not normally used by Kelly-Springfield. Their discoloration, a general indicator of age, was the same as that of other wires used in the original installation in 1962. There was at the same time, no physical evidence that additional switches had ever been installed for mills 11 and 12. The original bracket had been designed to hold only four double switches and was still in place at the time of the accident. To mount an additional two-way switch would have required an additional bracket. No additional bracket was found, nor were there any screw holes where such a bracket might once have been mounted. There was testimony that if Fischbach and Moore had installed additional switches for mills 11 and 12, wires would have been run from the terminal block near the bottom of the cubicle to the switches near its top, and that, if the switch had been subsequently removed, these additional wires would likely have been jumpered together near the original location of the removed switch. No such wires were found after the accident.

Fischbach and Moore relied principally on the testimony of its employee M. B. Cooper, who had superintended the installation of electrical equipment associated with mills 11 and 12. He testified by deposition that a Mr. Kirksey had installed and tested door switches for mills 11 and 12 under his supervision. Although no one could directly contradict this testimony, no one corroborated it. Cooper conceded that Kirksey, who did not testify, had no recollection of installing or testing the switches. Cooper's own testimony was uncertain. He could not, in his first...