City of Maryville v. Farmer

McALLISTER, Circuit Judge

(dissenting).

Joseph Howard Hammontree and. Owen Franklin Hammontree were killed, by electrocution on August 8,1952, while working in the fertilizer manufacturing plant of the Tennessee Farmers Cooperative in Rockford, Tenn. The widow of Joseph Howard Hammontree received, a verdict from the jury in the amount of $33,000 for the use and benefit of his-four children; and the widow of Owen Franklin Hammontree received a verdict in the amount of $29,000 for the use and benefit of herself and her children, upon which judgments were en*463tered. Appellants, City of Maryville, Maryville Electrical System, and Mary-ville Board of Public Utilities, here seek review of the foregoing judgments in this court.

The background of the case and the essential facts are as follows: The plant of the cooperative and all of its mechanical equipment were new. It had been in operation for only two months. The plant building was 100 feet long and 30 feet wide, with a switchroom south of the central portion of the plant and ■separated from it by a partition, but under the same roof. Electricity was furnished by appellants to the Tennessee Farmers Cooperative for use in the manufacture of fertilizer.

The Tennessee Farmers Cooperative utilized the electricity to operate certain mechanical equipment located in the central portion of the plant. This equipment, or machinery, consisted of a mixer, some bagging machines, stationary conveyors and portable conveyors, all requiring, for their operation, three-phase power of 440 volts.

We come now to the discovery that early in the morning of August 8, 1952 there was something wrong with appellants’ power lines. About 3:30 A. M. a rural customer notified the power company that he could not start his milking machinery because of a failure of electrical power. Other similar complaints were received that morning. The company, accordingly, sent out a number of its employees to find what caused the trouble. After several hours of searching fruitlessly for the cause, the men returned to the power company’s plant. At 7:45 A. M. Mr. Koontz, an employee at the fertilizer plant, called the power company to report that they were unable to get any power because of an "outage” or “single phase condition” in the plant, which prevented them from starting a three-phase motor which operated the machinery and the portable conveyor. Within five or ten minutes of this telephone call, a charge of electrical voltage came over appellants’ power lines and into the fertilizer plant, which killed appellees’ decedents.

About an hour after the accident, a power company truck was driven up to the fertilizer plant, and one of the men in the truck told the superintendent of the plant that the power company was having some trouble on the line and that he wished to disconnect the power at the fertilizer plant for some time. The superintendent of the plant told the employee of the power company that there had just been a serious accident and that two men had been electrocuted at the plant; and the superintendent further stated that he didn’t want anything in the plant touched. The employee of the power company replied that he only wanted to disconnect the power, which he did without coming into the plant.

At the time the two men were electrocuted, they were working in the building, moving one of the portable conveyors used in loading trucks. The portable conveyor machinery was operated by means of an electric motor, and inasmuch as it was moved or pushed about by the workmen from time to time throughout the building, it had attached to it an electrical cord which could be plugged into a socket connected with the electric power. As stated above, just before the accident, the two men, who were afterward electrocuted, were pushing the conveyor around the plant. At that time, one end of the electrical cord that carried voltage to the conveyor machinery was plugged into the electric socket in the wall of the plant, and the other end was connected to the conveyor; but the motor had not yet been switched on. The conveyor was on rubber tired wheels. As the two Hammontrees, appellees’ decedents, and another man named King, were pushing the conveyor around to a different position in the plant, “the electricity just hit us,” according to King, who said that he was knocked loose from the conveyor with the initial jolt. The two Hammontrees, as described by witnesses, seemed to “freeze” as they tried *464to pull away from the conveyor; and by the time that the other employees had pulled the switch cutting off the power, both men were dead;' and there is no question that their deaths were caused by electrocution.

All electrical energy used by the Tennessee Cooperative was supplied by appellants’ transmission lines. The wires of appellants were joined to the wires of the Cooperative just outside the south end of the building, and were intended, and understood by all parties, to have a capacity of carrying not more than 440 volts. These wires were encased in conduits and entered the plant through a metal trough. Within the trough, the wires from inside the Cooperative and the wires carrying the electric current from outside, were joined by so-called Kerney connectors. Kerney connectors are metallic devices used in joining heavy gauge electric wires. The Kerney connectors in this case, within the trough, were encased in rubber tape, surrounded by friction tape, which according to undisputed evidence introduced on behalf of appellees, was sufficient to insulate against 9,000 volts.'

After the accident, it was found that the voltage coming from appellants’ wires had burned the rubber tape and friction tape surrounding the Kerney connectors in two places — and at no other place in the trough; that the current had burned, two holes in the metallic trough; and that the metal parts of the Kerney connectors had become welded to the metal trough. Moreover, where the insulated electric cord (which was plugged into the socket in the wall of the fertilizer plant) was attached to the switchbox of the portable conveyor, the undisputed testimony was that the insulation “had been burned up from high voltage,” and a contact probably made between the electric cord and the metal conveyor. There is no evidence that the wires within the fertilizer plant, and within the metal trough, were not sufficiently insulated. In fact, all of the evidence is that the wires .and connectors were insulated .to withstand a current up to 9,000 volts. Appellants’ theory is that the insulation around the Kerney connectors was insufficient. .The proof is all to the contrary.

If the Kerney connectors had been so encased in rubber tape, surrounded by friction-.tape, as to be sufficient to insulate against 9,000 volts, then the burning through of such insulation and the resulting welding of the connectors with the metal trough, were obviously caused by a voltage of approximately 9,000 volts. If 9,000 volts were transmitted through appellants’ lines and into the Cooperative plant — which was known by appellants to utilize, with safety, only 440 volts, — there is no question that the death of the two employees by electrocution resulted therefrom.

Was the insulation in question sufficient to insulate against 440 volts, which the wires and motors in the fertilizer plant were intended to carry ?

The State Inspector testified that he examined the insulation after it had been installed, and prior to the accident; that when the line was energized with 440 volts, he had, in order to test the insulation when the current was switched on, placed his hand around the tape that covered the Kerney connectors; that he had felt no current or shock; that if there had been a naked place or a weak point in the insulation of the Kerney connectors, the voltage would have leaked through and he' would have received a shock. The man who had wrapped the insulating rubber and friction tape around the wires and connectors testified that he had wound a minimum of two turns of rubber and two turns of friction tape around the wires and connectors, which in the opinion of all experts of both parties was sufficient to insulate against 9,000 volts. As an expert, the State Inspector testified that the insulation was proper and sufficient for the intended purpose and voltage.

When an official investigation was made subsequent to the accident, the rubber and friction tape envelope that had surrounded the Kerney connectors was removed and thereafter subjected *465to tests of electrical voltage at the laboratories of the University of Tennessee. The tests were made on the insulation, on the opposite side of the portion that had been burned through or charred. According to the testimony introduced by appellees’ expert witness, this opposite side of the insulation envelope was sound, and “had the same number of layers” of rubber and friction tape insulation as “on the side where it was charred.” There was no testimony to the contrary. These tests revealed that it required 9,000 volts to break down the rubber and friction tape insulation on the sound side of the envelope. Other witnesses testified that the insulation was adequate for the voltage to be used by the plant; that the wiring in the plant conformed “to the highest degree of the art;” that it met all of the requirements of the National Code and of the State Code; and this was undisputed. The Chief Electrical Inspector of the State of Tennessee made a four-day inspection of the plant after the accident and testified that there was nothing defective in any way in the wiring within the plant; and he could find nothing within the plant that had caused the death of the two men. No electricity was generated in the plant. Since there were no means, within the plant, of generating voltage, any voltage was bound to come from outside the plant. No electrical power ever entered the plant except through appellants’ transmission lines.

As said before, the theory of appellants appears to be that the Kerney connectors were insufficiently insulated and thereby came in contact with the metal trough, resulting in grounding the electricity; that because of this grounding, the lethal current of 440 volts, which the wires and motor in the fertilizer plant were intended to carry, travelled along the damp floor of the plant. The appellants’ theory further is that current was also coming through the electrical cord attached to the motor of the conveyor machinery; that in some way, the metal part of the conveyor itself became energized with electricity escaping from the cord, or motor, and that the current traveling along the floor and the current energizing the conveyor made a circuit through the bodies of the men who had their hands on the conveyor, in consequence whereof they were electrocuted. This is appellants’ theory. But it is entirely contrary to the proof. The overwhelming weight of the evidence — in fact the undisputed evidence — is that the Kerney connectors were perfectly insulated for 440 volts, which was the specified limit of voltage capacity, and which was so understood by appellants. An insinuating suggestion is made by appellants that the insulation around the Kerney connectors was damaged when the metal trough in which the connectors and wires lay, was bolted to its metal cover, and that the sharp points of the connectors cut the insulation when the trough and cover were clamped over them, thereby causing the current to burn through the rest of the insulation and to fuse with the metal trough, thus grounding the current, and resulting in the death of the two men. However, the evidence is all to the effect that the insulation around the connectors, as found after the accident, would have been sufficient not merely for 440 volts, but for 9,000 volts. Moreover, the metal cover was bolted over the metal trough a month before the accident occurred. If the bolting of the cover to the trough had damaged the insulation of the Kerney connectors, it would have so damaged it at the time it was bolted, rather than a month afterward. There was no evidence that the Kerney connector had pierced the insulation, as a result of the clamping of the metal cover to the metal trough.

During the month subsequent to the time when the cover had been bolted to the metal trough, the portable conveyor had been used and the conveyor machinery had been operated by a current of 440 volts without accident or incident. Just before the accident, the men had been engaged for some time in pushing the conveyor .around the plant. The elec*466trical cord at the time was plugged in a socket in the plant wall, and was attached to the motor of the conveyor machinery; but the current had not been turned on at the motor.

What caused the lethal charge of electricity to kill the two men? It came from nothing within the plant. No electricity was generated in the plant. It came from no act that the men had done with respect to the conveyor. If the insulation around the connectors had been damaged by clamping the metal cover upon the metal trough within which the connectors were lodged, the damage to the insulation, as said above, would have occurred long before the accident when the cover had been clamped to the trough — and there was no evidence of any such damage to the insulation. In fact, the evidence was all to the contrary. If the insulation around the Kerney connectors had been pierced when the metal cover had been clamped to the metal trough, the connectors would have burned through the insulation and fused with the metal trough two months before that event actually occurred.

It is true that a witness for appellants stated that there were places in the rubber insulation wrapping where there was no insulation at all, but he testified long after the accident; he was referring to the envelope of insulation that had been removed from the connector; and he pointed out where the tape, at that time, had been pulled apart. He had not seen the insulation, as had the other witnesses, when it was removed from the wires and connectors; and he admitted that the tape might have been pulled apart during the tests or in court during the trial. The tape, where the witness pointed out it had been pulled apart, was not carbonized, which would have been the case if the current had passed through at that point to the metal trough. The witness did admit that a voltage in excess of 440 volts woiild have been required to carbonize or disintegrate two layers of rubber tape and two layers of friction tape, which a number of witnesses, without contradiction, had testified was the insulation covering the connectors and wires at the time it was installed. Obviously the current would have passed through to the metal trough where there was no insulation, rather than were there was insulation to protect against 9,000 volts. Yet, no current appears to have passed through the metal trough at any place except where there was heavy and sufficient insulation. The undisputed testimony and the admitted facts lead to the inescapable conclusion that the tape had not been pulled apart until after it had been removed from the metal trough.

It was also contended by appellants that the fertilizer company was negligent in not having a ground wire attached to the conveyor; and, as an additional safety measure, this should have been done. But it is undisputed that, while such a ground wire would have been effective if the conveyor had been energized by 440 volts, it would have been of no effect and would not have prevented the accident, if a current of 9,000 volts had come over the fertilizer plant’s wires.

In this case we must accept the following undisputed testimony and evidence: the rubber and friction tape insulation around the Kerney connectors was sufficient to insulate against a current of approximately 9,000 volts; the insulation was not pierced through by the Kerney connectors when the metal cover was bolted to the metal trough in which the connectors were lodged; the insulation around the wires lying within the metal trough was insufficient to insulate against approximately 9,000 volts; the voltage that caused the insulation around the connectors to be carbonized, and caused the burning of the two holes in the metal trough and the fusing of the connectors to the trough, was approximately 9,000 volts, instead of 440 volts, which was the intended capacity of the wires within the fertilizer plant. The evidence further clearly discloses that there was nothing defective about the electrical wiring system and apparatus inside the fertilizer plant at the time *467of the accident; that there was no mechanical device within the plant which was power operated, which could have caused the accident; and there was no defect in wiring which could have caused the conveyor itself to be energized with electricity, resulting in the electrocution of appellees’ decedents.

Moreover, a compelling consideration is that the electric wires and the Kerney connectors within the fertilizer plant had been in use for two months. The conveyor had been operated daily during that time, with employees pushing it around in the identical manner as did the two men who were electrocuted while performing the same task. There had been no grounding of current or no burning of insulation during all that time. No accident or incident had occurred to the wires in the plant, to the conveyor, or to the plant employees, until the morning of August 8, 1952. It was on that morning that appellants discovered trouble on their power transmission lines. And it was shortly after the power company found that its lines were defective that death struck swiftly.

In the light of the foregoing, I am of the opinion that appellees made out a case for the application of the doctrine of res ipsa loquitur. The proof of ap-pellees that an excessive and dangerous charge of 9,000 volts was sent through appellants’ power lines and the wires of the fertilizer plant, with the resultant electrocution of the two men, casts upon the defense the burden of an explanation consistent with due care. It is my view that the case should have been submitted to the jury under the rule of res ipsa loquitur.

However, the trial court declined to submit the case under this rule, but instead submitted it on the question of appellants’ negligence.

There was evidence that the reclosers mentioned in the majority opinion should have been gang operated, and that such was the uniform practice in electric utilities; that otherwise, if one line was “taken out” of a three-phase current, “and you leave two of them, it will burn the equipment quickly” and also men, “if they got on the other circuits.” This testimony conveys an ominous impression, but is not sufficiently definite or comprehensible to enable one to conclude from it that it constituted proof of negligence on the part of appellants. Nor did the theory of a surge of electric power, sent over the lines by appellants’ employees, or evidence of a failure of inspection of appellants’ apparatus, warrant a verdict on the ground of negligence. But, of course, it is not surprising that appellees were unable to prove, affirmatively, negligence on the part of the appellants, since the latter have almost exclusive knowledge with respect to how such an accident occurred; and it is only reasonable that the party having the power and opportunity should be required to give such an explanation and to prove that it did not occur through a lack of care on its part.

The case was very close, complicated and difficult and was tried by an able, conscientious and careful judge. In my view, the appellees did not prove, and it probably was beyond their power to prove, that appellants were guilty of negligence; and the judgments based thereon should therefore be set aside. However, appellees had the right to go to the jury under the doctrine of res ipsa loquitur, and the case, in my opinion, should be remanded for a new trial, in accordance with the foregoing.