
    Alton J. TASSIN, Plaintiff-Appellee, v. LOUISIANA POWER & LIGHT COMPANY, Defendant-Appellant.
    No. 1731.
    Court of Appeal of Louisiana. Third Circuit.
    Oct. 20, 1966.
    Rehearing Denied Nov. 16, 1966.
    Writ Granted Jan. 18, 1967.
    
      Monroe & Lemann, by W. Malcolm Stevenson, New Orleans, for defendant-appellant.
    Laborde, Lafargue & Brouillette, by Harold J. Brouillette, Marksville, for plaintiff-appellee.
   FRUGÉ, Judge.

Plaintiff brought suit in tort for damages. In his petition plaintiff alleged that on or about September 10, 1963, he was injured while performing his duties as manager of the Union Cotton Gin at Marksville, Louisiana ; that at 9:30 p. m. on the night in question, due to the loss of electrical power, the lights in the gin began to flicker and various engines reduced speed, etc.; that he ordered the ginning operation to be stopped, and when that had been done, he attempted to turn off all electrical power in the building at the fuse box; that when he grasped the handle of the fuse box, he received an electrical shock of considerable force which stunned him. He further alleged that he staggered out of the building, and when he arrived outside, defendant’s power cable which served the gin broke and fell to the ground with very bright flashes of light, causing flash burns to his eyes. Plaintiff also alleged that defendant was negligent in failing to provide a safe and adequate electrical power supply, and in failing to warn him of the dangerous condition.

Defendant answered plaintiff’s petition, denying the material allegations thereof, and further alleged plaintiff’s contributory negligence ail'd last clear chance to avoid the accident.

After a trial on the merits, the lower court gave judgment in favor of the plaintiff. From that judgment defendant has appealed suspensively. Plaintiff answered the appeal, seeking an increase in the quantum of damages.

Precisely what caused the series of events or accident here involved is not established by the evidence, which is borne out by the fact that the lower court applied the doctrine of res ipsa loquitur in reaching its decision for the plaintiff. Plaintiff contends the doctrine should apply; defendant contends it should not.

The doctrine of res ipsa loquitur is a rule of evidence peculiar to the law of negligence and is an exception to the general rule that negligence must be affirmatively proved. Talbert v. Tyler, La.App., 121 So.2d 854. The phrase “res ipsa loqui-tur” literally means “the thing speaks for itself”. Thus when an accident occurs, causing injury, and it is shown that the instrumentality which caused the accident is under the control of the defendant and that the accident is such as would not occur in the ordinary course of things if the one having control uses proper care, then the injury is presumed to have been caused by defendant’s negligence and the burden of proof is shifted to the defendant to exculpate himself from fault. Great American Indemnity Company v. Ford, La.App., 122 So.2d 111.

In the recent case of James v. Child’s, Division of Kroger Company, La.App., 166 So.2d 77 (3rd Cir. 1964) we stated that in order for the doctrine to apply there must appear more probability than not that the injury was attributable to a violation of defendant’s duty to plaintiff. The test has been succinctly stated as follows: Do the facts shown suggest the negligence of the defendant, rather than other factors, as the most plausible explanation of the accident?

The doctrine of res ipsa loquitur is particularly applicable where the accident is caused by dangerous instrumentalities, such as high explosives, gas, electricity, etc. Langlinais v. Geophysical Service, Inc., 237 La. 585, 111 So.2d 781 (1959).

An early case applying the doctrine to electric power lines is Hebert v. Lake Charles Ice, Light & Waterworks Company, 111 La. 522, 35 So. 731 (1903). The facts were very similar to those in the present case. There, an electric wire of the defendant electric company fell into the street for some unknown cause. Plaintiff’s husband came in contact with the wire and was killed. The court held the doctrine of res ispa loquitur applicable, stating:

“ * * * where an individual or a corporation owns and operates an electrical light plant generating a high current of electricity, conveying it by means of overhead wires along the streets of a town or city, and it is shown that a traveler upon one of the streets came in contact with one of its wires lying upon the sidewalk and was killed thereby, he being without contributory negligence, the burden of proof is upon it to show that the wire was without negligence on its part (res ipsa loquitur); (citations omitted).
“We are of the opinion that this proposition is conservative and correct. The owners of electrical machinery are in a much better position to know and be informed as to its situation, when such a condition of things takes place, than would be an entire stranger to its affairs, who, being lawfully upon the street, should have been injured by its wires.”

A later case in which the doctrine was applied is Ledet v. Lockport Light & Power Company, 15 La.App. 426, 132 So. 272 (1st Cir. 1931), where a high voltage electric line fell, for some unknown reason, and plaintiff’s son was killed on coming in contact therewith. The court held the doctrine of res ipsa loquitur applicable and also that defendant had not sustained its burden of showing some other cause of the accident for which it was not responsible.

With this understanding of the doctrine of res ipsa loquitur, let us examine the facts of the present case. There is no question but that the power line which broke was a service line of the defendant, leading from its pole to the premises of the Union Cotton Gin. This service line was, of course, under the exclusive control of the defendant power company at the time of the accident. In the ordinary course of events, such a wire does not break and fall to the ground unless the party having control thereof has failed to use due care. Under the circumstances, we think it is clear that the doctrine of res ipsa loquitur applied here.

Having determined that the doctrine applies, the burden shifts to the defendant to show that the accident was caused by something for which it is not responsible. In this regard the district judge concluded as follows:

“The court cannot say what went wrong, but something did go wrong. Perhaps the insulation around the wires got old and cracked, causing the short circuit; perhaps the wires overloaded, because of the size of the cable used; perhaps the overload, by reason of the cable’s size, caused undue heating and melting of the insulation; the court does not know. The court, however, does not believe it is the plaintiff’s burden to prove the cause of the mishap.”

The lower court was not satisfied, nor are we, that the defendant established the cause or a cause which exonerated it from fault or negligence.

The record is clear that after the accident occurred certain modifications were made by the defendant power company in the size of the cable and in the size of the KVA transformers. This is an indication that possibly the pre-existing cable and transformer were inadequate for the load required at the plaintiff’s business. If this be the case, the power company must accept the responsibility for the injuries sustained by the plaintiff due to the overload and subsequent breaking of its cable.

The evidence presented by the Louisiana Power & Light Company was insufficient to refute the inference that its negligence was not the most plausible explanation of the accident in view of the high duty of care that accompanies those who exercise exclusive control over dangerous instrumentalities such as electricity.

The next question is the extent of the injuries sustained by the plaintiff as the result of this accident.

Plaintiff was seen by Dr. F. P. Bordelon, Jr., a general practitioner in Marksville, Louisiana, the night of the accident. Dr. Bordelon’s objective findings were excessive teardrops, eyes very red, severe sensitivity to light, and soreness to the right arm, and cramps. From these symptoms and the history given to him by the plaintiff, Dr. Bordelon diagnosed plaintiff’s injuries as flash burns to the eyes and myositis of the right arm. It was this doctor’s testimony that the condition he found would cause the plaintiff great pain. Plaintiff continued to complain of pain to his eyes for five days following the accident. Dr. Bordelon saw the plaintiff on four occasions from September 11 to September 24, and on each occasion found plaintiff to be apprehensive of his eye condition. As of his last visit to Dr. Bordelon, the doctor testified that plaintiff’s vision was still impaired.

On September 25, 1963, plaintiff was examined by Dr. E. D. Wilson, a specialist in ophthalmology. At this time Dr. Wilson could find no eye abnormality. He testified that the eyes heal very rapidly when injuries to the eyes are not of a permanent nature.

Considering plaintiff’s injury, the pain, suffering, apprehension and loss of income attributable to the accident, we cannot say, after a careful review of the entire record, that the lower court committed manifest error in allowing plaintiff recovery of $2,500 for his pain, suffering and medical bills, nor can we find error in the lower court’s award of $2,100 for loss of income the plaintiff suffered as a cotton buyer and trucker while he was disabled.

No citation is needed for the proposition that this court will not disturb the lower court’s finding without a showing of manifest error, therefore the judgment of the lower court is affirmed; all costs to be assessed to the appellant.

Affirmed.

HOOD, J., dissents and assigns written reasons.

SAVOY, J., dissents for reasons assigned by HOOD, J.

HOOD, Judge

(dissenting).

I cannot agree with the majority in some of the conclusions which have been reached.

In the first place, I do not think the doctrine of res ipsa loquitur can be applied here. The law relating to the applicability of that doctrine has been correctly stated, but I think my conscientious brothers have completely overlooked an important provision of that rule of law, and that is that the doctrine of res ipsa loquitur is not applicable unless “the facts shown suggest the negligence of the defendant, rather than other factors, as the most plausible explanation of the accident.”

In Pilie v. National Food Stores of Louisiana, Inc., 245 La. 276, 158 So.2d 162, our Supreme Court said:

“Accordingly in answer to plaintiffs’ qirestion of law, the facts and circumstances of this case do not permit the application of the doctrine of res ipsa loqui-tur because from them vue cannot draw the inference that it was National’s negligence, rather than the negligence of others, that caused the cartons to fall.” (Emphasis added.)

Justice Sanders, in a concurring opinion handed down in the same case, observed that: “The circumstances shown do not warrant an inference that it was National’s negligence, rather than the acts of others for which National would not be responsible, that caused the cartons to fall. Hence the record does not provide an evidentiary basis for res ipsa loquitur.” (Emphasis added.)

In Talbert v. Tyler, 121 So.2d 854 (La. App. 2d Cir.1960), a case on which the majority relies, our brothers of the Second Circuit held that the doctrine of res ipsa loquitur was not applicable because it could reasonably be concluded that the accident may have been caused by the negligence of another. The court said:

“Nor may the doctrine be invoked where, from the nature of the facts established by the record, it is reasonable to conclude that the fire may have been caused by the negligence of another or through the instrumentality or agency of another.” (Emphasis added.)

In James v. Childs, Division of Kroger Company, 166 So.2d 77 (La.App. 3d Cir. 1964), also relied on by the majority, after quoting from the Pilie case and Larkin v. State Farm Mutual Automobile Insurance Company, 233 La. 544, 97 So.2d 389, we held that the doctrine of res ipsa loquitur was applicable insofar as one of the defendants, Coca Cola Bottling Company, was concerned because:

“The evidence does not shove the reasonable possibility that there was any ether cause for the bottom of the carton giving way than the neglect of this defendant to provide a carton suitable for the purpose of carrying 6 ‘King Size Cokes.’ ” (Emphasis added.)

In the same case we found that the doctrine was not applicable to the other defendant, Childs, because the inference could not be “reasonably drawn” that the accident resulted solely from the negligence of that defendant.

The majority has cited Hebert v. Lake Charles Ice, Light and Waterworks Co., 111 La. 522, 35 So. 731 (1903), and Ledet v. Lockport Light and Power Co., 15 La.App. 426, 132 So. 272 (1st Cir.1931) as two cases involving electric power lines where the doctrine of res ipsa loquitur was applied. In each case there was a brief general statement of the law relating to the doctrine of “res ipsa loquitur,” but the court then proceeded to ignore that doctrine completely and to base its conclusions on specific findings of negligence on the part of the defendants. In the Hebert case, for instance, the court found that the defendant was negligent in maintaining a high voltage wire “without proper insulation.” In the Ledet case, the court found that the defendant was negligent in failing to equip its electric wires with “an efficient safety device, one that would work, cut off the power and render the wire harmless in case it broke and fell.”

These authorities show, I think, that the doctrine of res ipsa loquitur is not applicable unless the circumstances surrounding the occurrence of the accident will warrant an inference that it was the negligence of the defendant, and not the negligence of others, which caused that accident. As stated in the James case, the doctrine is not applicable if there appears to be a “reasonable possibility” that the accident resulted from some cause other than the negligence of the defendant. In my opinion the circumstances shown in the instant suit do not warrant an inference that the accident resulted from the negligence of the defendant power company.

The evidence shows that defendant entered into a contract with Union Cotton Gin in 1957 to supply electrical power to that gin up to a maximum capacity of 30 kilowatts. Pursuant to that contract, defendant installed two transformers and a service line leading from one of its poles to the gin, the transformers and service line having a capacity of more than the maximum demand called for in the contract. The cotton gin was operated for six years thereafter without any difficulty insofar as the supply of electrical power was concerned. In June, 1963, the owners of the cotton gin employed their own electricians to rewire the gin and to install additional motors and electrical equipment, all of which had the result of greatly increasing the amount of electrical power used by that establishment. The electrical work on the gin was completed about September 1, 1963.

Plaintiff was serving as manager of the cotton gin on September 10, 1963. At about 9:30 p. m. on that date he noticed some irregularity in the operation of the motors in the gin, and he proceeded to turn off the main electrical switch. When he did so he received a severe shock which temporarily stunned him. He then went outside the building, and at that time the service line leading from one of defendant’s poles to the cotton gin broke, and there occurred some electrical flashes which he contends caused injury to his eyes.

The defendant power company was notified of this incident shortly after it occurred, and one of its servicemen immediately went to the scene and installed a new and larger service line. The operation of the gin was resumed the following day. On September 12, defendant checked the meter at the gin and found that there had been a substantial increase in the amount of power which was being used. Because of this great increase in the demand for electrical power, defendant replaced the two original transformers with three others, the three new transformers having a greater capacity for supplying electrical current than did the two original ones. Since that time no further difficulty has been encountered insofar as the supply of electrical current to the cotton gin is concerned.

The transformers and the service line leading from defendant’s pole to the cotton gin were under the control of the defendant power company. But, all of the electrical wiring, motors and fixtures in the cotton gin, including the main switch, were owned by and were under the control of the owners of the gin.

Although defendant had contracted to provide electrical power up to a maximum demand of 30 kilowatts, the average demand of the cotton gin for electrical power was slightly greater than that. The records show that prior to the time the rewiring of the gin was completed on September 1, 1963, the greatest demand which had ever been made by the cotton gin for electrical power was 46 kilowatts. The gin was not operating while the electrical repairs were being made in 1963, but it began operating as soon as they were completed, and due to the additional electrical motors and equipment which had been installed, its use of electricity was increased considerably when operations were resumed on September 1, 1963. The meter reading shows that during the fifteen-day period which ended on September 12, 1963, and which included the day of the accident, there was an average demand at the cotton gin of 68 kilowatts, or an average of almost one and one-half times the greatest demand which had ever been made before.

Prior to the date on which the accident occurred, the defendant power company had not been informed that the cotton gin intended to increase its use of electrical power. It had no knowledge of the fact that there would be or had been such an increase until it checked the meter two days after the accident, and it discovered at that time that there had been a substantial increase in the use of power during the preceding fifteen-day period.

There is nothing in the evidence which suggests that there was any defect in the transformers supplied by defendant. The only part of the defendant’s equipment which failed was the supply line leading to the gin, which line broke and burned. The only possible explanations which have been offered as to why this occurred are: (1) That the line was so defective that it simply broke and burned; (2) that shortly before the accident happened the cotton gin placed on the line a heavier load than it was capable of carrying; or (3) that there was some defect in the wiring inside the gin, evidenced by the severe shock which plaintiff received when he touched the switch in that establishment, and that this defective wiring caused the line to become suddenly overloaded and to burn. The evidence shows that the defendant inspected this line on August 19, 1963, just a few days before this accident occurred, and found it to be in good condition. It also shows that the service line was adequate to carry considerably more electric power than the maximum amount called for by the contract or the maximum amount which the cotton gin had ever used before, that defendant was ready and willing at all times to increase the size of its transformers or service lines at any time it was informed or became aware of the fact that such an increase was needed, and that defendant knew nothing of the cotton gin’s intent to increase its demand prior to or at the time of the accident.

Plaintiff’s own testimony shows that on the day the accident occurred, there was a serious defect in the electrical wiring of the cotton gin, since plaintiff received a severe shock when he attempted to pull a switch. This defect in the wiring could have caused the service line to be suddenly overloaded and to break. The defendant, of course, had nothing to do with the wiring in the gin, and it cannot be held responsible for the defect which caused the plaintiff to receive a severe shock when he attempted to pull a switch in the gin.

I think the evidence shows beyond any question that there was no defect in a,ny of the transformers or in the service line which ran from defendant’s post to the cotton gin. The evidence also establishes clearly that the sole and only cause of the break in the line was either the obvious defect in the wiring of the gin, or the sudden and substantial increase in the demand of the gin for electric power. The defendant had no control over the defective wiring, and it was not informed and had no knowledge of the fact that the gin intended to increase its demands of electric power. The most likely and probable cause of the accident was the negligence of the cotton gin in failing to rewire its building properly or in failing to inform the defendant of the fact that it would greatly increase its demand for electric power.

Since the circumstances surrounding the occurrence of this accident do not warrant an inference that it was caused by defendant’s negligence, rather than the acts of the operators of the cotton gin, I feel that the doctrine of res ipsa loquitur cannot be applied here.

Even if the doctrine of res ipsa loquitur should be applied, I think that the evidence produced by the defendant more than amply meets the burden of proof which is shifted to it, and it completely absolves the defendant from any negligence.

I also disagree with the majority in their conclusion that the eye injury which plaintiff sustained was the result of the breaking and burning of the service line. Plaintiff was at least 26 feet from the wire when it burned, and the flashes occurred only momentarily. Only a few hours before the accident occurred, however, plaintiff had been in the immediate vicinity of some welding which was being done in the cotton gin. He, in fact, assisted the welder by holding some of the iron which was being welded, and while doing so he was within three feet of the welding arc. He did not wear goggles or any other device to protect his eyes from the damaging light of the welding arc. tie was warned by an employee of the gin that he would injure his eyes if he remained in such close proximity to the welding without some protection to his eyes, but he did not heed this warning. Neither of the two doctors who treated plaintiff had ever seen a flash burn caused by the burning of an electrical wire, but both have seen and treated many cases where such burns occurred from welding arcs. The medical testimony shows that after receiving a flash burn, the injured person ordinarily does not realize that he has sustained such an injury until several hours after it has occurred. In this case, plaintiff first noticed that he had an eye injury at 2:00 a. m. the following day, which fact is consistent with the position taken by defendant that the injury resulted from the welding procedure and not from the burning of the service line.

In my opinion, the evidence clearly preponderates that the flash burn which plaintiff sustained resulted from his close proximity to the welding arc, and not from the burning of the service line. The defendant, of course, had no control over and was not in any way connected with the welding work which was being done at the cotton gin that day.

Finally, if we should assume that defendant was negligent and that plaintiff did sustain a flash burn as a result of the breaking of the service line leading to the cotton gin, then I feel that the award is excessive. Plaintiff’s treating physician referred him to an eye specialist who examined plaintiff on September 25, 1963, fifteen days after the accident occurred. This specialist testified that at that time plaintiff had completely recovered from any injury which he may have received fifteen days earlier, that he had 20/20 vision at that time, and that there was no residual injury or disability from the accident. He further testified that such injury “usually will heal in less than five days.” He received only a minimum amount of medical treatment, and that was simply for the electric shock which he received. .As I have already pointed out, the electric shock was not caused by any negligence of the defendant. In my opinion an award of $2500 for pain, suffering and medical bills is excessive, and is all out of proportion to awards made in other similar cases.

The evidence does not show any loss of income at all, and thus I cannot consent to an award for that claimed item of damages.

For the reasons assigned, I respectfully dissent.

On Application for Rehearing.

En Banc. Rehearing denied.

HOOD, J., and SAVOY, J., are of the opinion that a rehearing should be granted.  