Ralph M. Denneau is appealing from a jury verdict which found against him on his complaint for damages. He was rising in a "bucket" connected to a boom used to clean street lighting fixtures when the "bucket" struck a seventy-two hundred (7200) volt power line. Severe electrical burns covered most of his body. Ralph M. Denneau was an employee of the N.G. Gilbert Company. He filed an action for damages against Indiana and Michigan Electric Company.
N.G. Gilbert Company had a contract with Indiana and Michigan Electric Company which provided that N.G. Gilbert was to change light bulbs and clean globes on street lighting equipment in Ossian, Indiana. A truck equipped with a boom was used to raise the "bucket" into the air and up to the street lighting equipment. Controls within the "bucket" enabled Ralph M. Denneau to raise and lower the "bucket" when in close proximity to the street lighting equipment. On May 21, 1965, Ralph M. Denneau was lifting himself in the "bucket" up to a light fixture at pole No. 531 so that he could clean the globe. The "bucket" came into contact with a seventy-two hundred (7200) volt power line. Ralph M. Denneau suffered severe burns over most of his body. He brought an action for damages against Indiana and Michigan Electric Company. The jury's verdict was for Indiana and Michigan Electric Company. Ralph M. Denneau appeals.
Ralph M. Denneau contends that the court erred in refusing to give his Instruction Number Five (5). His Instruction Number Five (5) was:
Ralph M. Denneau contends that this instruction would have placed before the jury the non-delegable duty of providing him with a safe place to work. To support this contention, the appellant relies on Stevens v. United Gas and Electric Co.
Evidence was produced which would warrant the giving of an instruction conveying this principle of law. We find that Final Instruction Number Thirteen (13) substantially covers the general rule of law urged by Denneau and as stated in Stevens, supra, and in Hoosier Cardinal Corp., supra. Final Instruction Number Thirteen (13) is as follows:
The court's Final Instruction Number Thirteen (13) is an exact copy of Ralph M. Denneau's Tendered Instruction Number Four (4). The trial court has no duty to repeat instructions with similar meanings. The error, if any, is harmless. Trent v. Rodgers (1952), 123 Ind.App. 139, 104 N.E.2d 759.
The second error urged by Ralph M. Denneau is the refusal to give his Tendered Instructions Numbers Six (6) and Eight (8). They are:
Ralph M. Denneau complains in his brief that: "By refusing to give either one of said instructions, the court literally took the `heart' out of the appellant's case and practically directed a verdict against him." We agree with this sentiment and assessment. We do not agree that the trial court's refusal of Instructions Numbers Six and Eight was error.
The English incipiency of the non-delegable duty doctrine has permeated many state jurisdictions within the United States. It has permeated the jurisdiction of Indiana.
Indiana and Michigan Electric Company entered into a contract with N.G. Gilbert Company to change the light bulbs and clean the globes on street lights in Ossian, Indiana. The nondelegability of this work assignment depends upon two considerations. First, is it foreseeable from the very nature of the work that it will be inherently dangerous? Secondly, is it foreseeable from the very nature of the work to be performed that a high degree of danger and exposure to injury will be present even when reasonable precautionary measures are taken? We are not concerned with the non-delegable duty to provide a safe place to work as we were in our discussion of error one. Instrumentalities used in performing the work and the physical location of the work were considered then. Now, the nature of the work and the work to be performed are primary considerations. Looney v. Prest-O-Lite Co., supra; See also 23 A.L.R. 1085-1110. Ralph M. Denneau relies heavily upon Stewart v. Huff, supra, and Pierce v. United States, 142 F.Supp. 721 (Eastern Dist. Tenn. 1955). There are five (5) exceptions to the general rule that a contractee is not liable to an independent contractor's servants for injuries:
Only exceptions one and four are to be considered in the following discussion. Ralph M. Denneau has conceded that these are the only two applicable exceptions.
Exception Number One: Is the nature of changing light bulbs and cleaning the globes on street lighting fixtures inherently dangerous? Our examination of the record reveals that even the evidence most favorable to the appellant, Ralph M. Denneau, reinforces the inference that if proper precautions were taken there would be little risk of injury. Therefore, evidence was not offered which would raise a reasonable inference that Ralph M. Denneau was engaged in an inherently dangerous pursuit of employment. See 23 A.L.R. 1085-1110.
Ralph M. Denneau's interpretation of exception Number Four is that the employer owes a non-delegable duty to the servants of the independent contractor if he has engaged the servant in work which will, in the natural course of events, produce injuries, unless proper precautions are taken. In support of this interpretation he relies on Pierce v. United States, supra. Exception Number Four (4) has one very important limitation to its application. The nature of the performance of the work assigned to the servant which has caused the injury must be foreseeable by the contractee at the time of making the contract. (Our emphasis.) Scott Construction Co. v. Cobb (1928), 86 Ind.App. 699, 707, 159 N.E. 763; See also 23 A.L.R. 1016.
Foreseeability is an essential element in exceptions one and four. This element is missing in both Instructions Numbers Six (6) and Eight (8). Therefore, these Instructions contain incorrect statements of the law. The trial court did not commit reversible error by refusing them.
The third error urged by Ralph M. Denneau is that the court erred in giving Indiana
The objection to this instruction is that it: "* * * overlooks the law of non-delegable duty." In our discussion of the second error, refusing to give Instruction Number Six (6) and Instruction Number Eight (8), we found a void in the record of any evidence which establishes the non-delegable duty referred to in this objection. At the time of entering into the contract to perform the work, there is no evidence that Indiana and Michigan Electric Company could foresee that N.G. Gilbert Company would not exercise the proper precautions to avoid injury to its servants. N.G. Gilbert Company is obviously the third party to which this instruction refers.
No control over the conduct of the work to be performed was exercised by the Indiana and Michigan Electric Company after executing the contract. Showing some control over the work to be done may have excluded the instruction. We find no showing of control. Marion Shoe Co. v. Eppley (1914), 181 Ind. 219, 104 N.E. 65; Reilly v. Chicago & N.W.R.R. Co. (1904), 122 Iowa 525, 98 N.W. 464; Callan v. Pugh (1900), 54 App.Div. 545, 66 N.Y. Supp. 1118; 44 A.L.R. 950.
The trial court did not commit reversible error by giving Indiana and Michigan Electric Company's Instruction Number Thirteen (13).
Errors Numbers Four (4) and Five (5) will be considered together since they both involve the application of IC 1971, 22-11-4-4; Ind. Ann. Stat. § 20-304 (Burns 1964). [Dangerous Occupation Act.]
Ralph M. Denneau contends that Instruction Number Two (2), tendered by the Indiana and Michigan Electric Company, was improperly given. This instruction reads as follows:
A part of Ralph M. Denneau's objection to this instruction is:
If the dangerous occupation act does apply, Error Number Five (5) urged by Ralph M. Denneau would also be error. In this portion of his argument, Ralph M. Denneau contends that it was error to refuse his Instruction Number Twelve (12), which reads as follows:
In Jakob v. Gary Railways, Inc. (1947), 118 Ind.App. 13, 16, 70 N.E.2d 753, 754, this court said:
No error was committed by the trial court. IC 1971, 22-11-4-4; Ind. Ann. Stat. § 20-304 (Burns 1964) is inapplicable.
Ralph M. Denneau further urges that even if said statute does not apply, the instruction is still erroneous for these reasons:
Reason one above goes to the question of providing a safe place to work and the jury was instructed on this subject matter. There is nothing in the instruction which relieves the Indiana and Michigan Electric Company of this duty. The second and third reasons above are founded upon sematic shadings and verbal niceties which this court will not invoke to reverse unless it is apparent that the jury was mislead. Mishler v. Chicago, South Bend & Northern Indiana Railroad Co. (1919), 188 Ind. 189, 122 N.E. 657; Hendrix v. Harbelis (1967), 248 Ind. 619, 230 N.E.2d 315; Perry v. Goss (1970), Ind., 255 N.E.2d 923, 20 Ind.Dec. 433.
Will isolation compensate for noninsulation of power lines? We hold that the trial court's conclusion is correct. Capitol Airways, Inc., supra. There must be no evidence on the issue of isolation for the instruction to be erroneous. There is evidence that the Indiana and Michigan Electric Company had violated no safety standards and had adequately spaced the wires. Further evidence was presented that the industry, as a whole, did not insulate wires of this voltage. Competent evidence was presented to justify the giving of the instruction. Therefore, we find no error.
We have carefully examined Errors Six (6), Seven (7), Eight (8) and Nine (9) urged by Ralph M. Denneau. We find no reversible error in any of them. Therefore, "* * * we will not extend this opinion by a discussion of these several contentions in detail, as no good purpose would be served thereby. * * *" Ranier v. Stephanoff (1924), 81 Ind.App. 166, 141 N.E. 523.
The judgment of the trial court should be and the same hereby is affirmed.
HOFFMAN, C.J., and WHITE and SHARP, JJ., concur.