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 Compаny (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 thе res ipsa loquitur doctrine.
In a res ipsa loquitur case the plaintiff has the burden of proving each factual ingredient necessary for a prima facie case including the burden of establishing that defendant was negligent. McCloskey v. Koplar,
On the night of his death Shafer had been instructed by his foreman to perform the uncomplicated job of lacing telеphone cable in the key indicator room of the Beau *112 mont 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 stcpladder 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 thе 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 contact 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 wаs 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 diagnosеd 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 defеndant; (c) the defendant possesses superior knowledge or means of information as to the cause of the occurrence. McCloskey v. Koplar,
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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,
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 suрplied 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 thе 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 рoints 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 сonditions 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 contact therewith, and then infer that there was present more than 130 volts because Shafer was killed.
The facts, and the reasonable inferences therefrom, most favоrable to plaintiff and which are supported by the evidence are that Shafer was on a stepladder engaged in lacing telephone cable in an area nearby to exposed fuses which had a potential of 130 volts DC, and which under proper conditions can kill a person coming in contact therewith; while so engaged in lacing cable, in some unexplained manner and for some unknown reason, he cаme into contact with the exposed fuses, as evidenced by the fact that some were “smashed and pushed over”; while in contact with the fuses he was or became in contact with something providing a “ground” (presumably the grounded metal shade of the fluorescent light) ; and as a result thereof 130 volts DC passed through his body from the fuses to whatever served as the “ground” and this electric charge was capable of and did cause his dеath.
The crucial element of the res ipsa loquitur doctrine material here is the hap
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pening of an occurrence, which in itself arid without explanation, speaks for itself of negligence. The occurrence or “thing” which speaks of negligence (see Shain, Res Ipsa Loquitur, Presumption and Burden of Proof) is not the injury nor the act or omission of the defendant, nor is it the instrumentality. It is the unusual occurrence of the instrumentality in the causal chain of events which connects the injury to the act or omission of the defendant. For example, in Gordon v. Muehling Packing Company,
Plaintiff contends the unusual occurrence in this case was that Shafer was shocked and killed, but the mere fact, and nothing more, that a person was injured is not sufficient to bring the res ipsa loquitur doctrine into action. Noce v. St. Louis-San Francisco Railway Co.,
In this case the fuse panel, the instrumеntality causing the injury, did not operate in an unusual or unexpected way. There was no movement or operation contrary to its usual, normal and expected operation. It is true that when Shafer came in contact with the fuses he was shocked because the fuse panel had 130 volt potential, but it was supposed to have a 130 volt potential, and plaintiff’s evidence shows that 130 volts can kill a person coming intо contact therewith which is what happened in this case. In Pauley v. Baltimore & Ohio R. Co., Mo.App.,
Bell also contends that it was entitled to a directed verdict because the evidence established that Shafer was an employee of an independent contractor doing work under contract on Bell’s premises in the usual course of Bell’s telephone business within the meaning of Section 287.040 RSMo 1949, V.A.M.S. The record shows that workmen’s compensation benefits by reasоn of the death of Shafer have been paid by Western Electric Company. We shall not set out the terms of the statute, but the essential elements necessary to establish that Shafer was a “statutory employee” are that the work was being done under contract on Bell’s premises, and that it was “an operation of the usual business” which Bell there carries on. Baker v. Iowa-Missouri Walnut Log Co., Inc., Mo.App.,
The work of Shafer was being done on-Bell’s premises. Although it is clear that Shafer was an employee of Western Electric Company which frequently does work under contract for Bell, the evidence does not disclose the Work, of which cable lacing apparently wás a part, to be done by Western Electric Company under the contract. We cannot determine that the work being done under contract by Western Electric Company, as distinguished from the specific act being done by Shafer, was an operation of the usual business carried on by Bell on the premises.
Bell, in effect, contends that Shafer was lacing cable, that the evidence shows that Bell employees frequently lace cable, and thereforе Shafer’s work was an operation of the usual business which is carried on by Bell on the premises. We do not believe, at least in this case, that this is the proper test. For example, assuming that Bell employees frequently and normally solder wire connections, we doubt that the employees of a contractor engaged by Bell to install an electrical burglar alarm system on the premises would be “statutory employees” bеcause in their work they solder wire connections. In State ex rel. Long-Hall Laundry and Dry Cleaning-Company v. Bland,
Bell also' contends the trial court erred in refusing to give two instructions submitting the defense that Shafer was a statutory employee. Both of these instructions hypothesized only the specific act of lacing "cable as constitutifig an’ operation of the usual business which Bell carried on *116 in the premises and therefore were properly refused.
In plaintiff’s appeal from the judgment in favor of A. T. & T. the only action of the trial court complained of is the refusal to give the following instruction: “The court instructs' the jttry that if you find and believe from thе evidence that the defendant, Southwestern Bell Telephone Company and the defendant, American Telephone and Telegraph Company were at all times herein mentioned associated together and engaged in the operation of the Beaumont Telephone Exchange ■ for the purpose of transmitting telephone messages, and that each of them received revenue therefor аnd if you further find and believe that each of them owned, controlled .and operated telephone equipment in said exchange in conjunction with each other for the operation of such business, then, the court futher instructs you that if you find for the plaintiff and against the defendant Southwestern Bell Telephone Company under instruction No. 1, then, and in that event your verdict must be in favor of the plaintiff and against both defendants.”
Plaintiff contends that Bell and A. T. & T. were еngaged in a joint adventure, and that each member of a joint adventure “is responsible for the negligent acts of another if within the scope and object of the joint undertaking.” State ex rel. McCrory v. Bland,
A “joint adventure,” as a legal concept, is of comparative recent origin, Neville v. D’Oench,
The purpose of a verdict-directing instruction is to make clear to the jury the essential fact issues it must decide, and therefore the instruction must present the facts essential in law to support the verdict. Ferguson v. Betterton,
Plaintiff was not entitled to a res ipsa loquitur submission of her cause against Bell, .but since there are circumstances- shown by the record from which inferences of speсific negligence on the part of Bell might be drawn (see Cudney
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v. Midcontinent Airlines, Inc.,
PER CURIAM.
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
All concur.