On September 10, 1973, Paul E. Geisler suffered serious electrical burns while working atop the roof of the Lapalco Shopping Center, then under construction, in Gretna, Louisiana. As a result, his left foot was amputated. Subsequently, he sued Melton Garrett, the owner of the shopping center, and Louisiana Power & Light Co. (hereafter, "LP&L"), owner of the overhead electric power line located at the site of the accident, and, by supplemental pleadings, added other defendants. LP&L denied negligence, pleaded Geisler's contributory negligence and assumption of risk, and filed various third party demands. Prior to trial, Geisler settled with some defendants and, during the first day of trial, entered compromise agreements with all remaining defendants except LP&L, who, thereupon, reserved its right to pro rata reduction by reason of the settlement. The trial lasted four days and resulted in a jury verdict (on special interrogatories), finding negligence on the part of LP&L and contributory negligence on the part of Geisler. Thereupon, Geisler's demand against LP&L was dismissed, as was the petition of intervention filed by his workmen's compensation insurer, Maryland Casualty Co. A motion for new trial was denied, and Geisler devolutively appeals. LP&L answered the appeal to protect its right to pro rata reduction of any judgment rendered against it.
At trial, Geisler testified that he had worked 16 years for Poley's Sheet Metal, Inc., doing "gutter work and downspouts." He had been working at the construction site for about a week prior to the accident and had inspected the premises "to see where the drains were going through the front of the building." On the day of the accident, Geisler arrived at the site around 8:00 a. m. and began installing "L-flashing" (a 10-foot, L-shaped piece of metal which covers the crack formed at the joint between the wall and the side of the building to prevent water seepage to the interior). After lunch, he installed fiberglass "roof jacks" which covered the pipes protruding from the roof to prevent leakage from the pipes. His next job was to install 20-foot gutters. Geisler decided that the best method of getting the gutters from the floor of one of the interior rooms of the building (where they were stored) to the roof was through an air conditioning duct opening. With the assistance of Vernon White, he maneuvered the length of gutter up to the opening. Then, he and White went to the front of the building and climbed a ladder to the roof. Geisler could see six or seven feet of the gutter protruding from the duct opening. He was aware of the proximity of the power lines but contends that he did not realize that they were uninsulated and energized since he saw no warning sign to indicate that there was high voltage in the lines. With his back to the lines, he and White negotiated the first gutter section out of the opening, "hand over hand," and, together, they carried it to the edge of the building. The second gutter section was handled in the same manner. During the maneuvering of the third section of gutter, Geisler suffered electrocution. White was not electrocuted.
On cross-examination, Geisler acknowledged that he was aware that power equipment was being used at the construction site and realized that it was dangerous to allow metal to touch the overhead power lines presumably supplying electricity to the building site. He also acknowledged that from the interior of the building, looking up through the air conditioning duct opening selected for the upward passage of the gutter sections, one could see the power
At no time did he request LP&L to temporarily de-energize the power lines in question.
Vernon White testified that he was not touching the gutter section when the accident occurred. His testimony regarding the events leading up to the accident generally corroborate Geisler's account. Asked during cross-examination if he knew that one who works with sheet metal on a roof top must be on the lookout for overhead power lines, he responded: "Common sense would tell you to look out for that."
John Poley, president of Poley's Sheet Metal, Inc., testified that he had been on the roof prior to the accident and could see the power lines at that time, but did not realize that 13,800 volts ran through them. He was aware that the service connection at the back of the shopping center site was sufficient to operate power tools. He did not request that the lines be de-energized and had, previously, shown Geisler ". . . the pole where he could pick up his service for his drill motor and stuff, and that was in the back of the shopping center."
In Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La., 1976), plaintiff was electrocuted while holding a cable which came in contact with a power line. The Supreme Court applied general principles of negligence to measure the injured party's conduct:
Here, Geisler made the decision to maneuver long pieces of metal guttering in close proximity to power lines. The jury found this conduct to be contributorily negligent. We may not substitute our own factual determinations for well-supported findings by the trier of the fact. Dyson v. Gulf Modular Corp., supra; Canter v. Koehring Co., 283 So.2d 716, 724 (La., 1973).
Appellant's able counsel vigorously contends that LP&L committed reversible error by placing certain federal regulations into evidence. Our review of the record indicates that during the cross-examination of Mr. Poley, counsel for LP&L posed various questions concerning adherence to regulations of the Occupational Safety and Health Administration, particularly those concerned with an employer's duty to request that electrical circuits be de-energized prior to allowing his employees to commence work in close proximity thereof. However, the record also shows that counsel for Geisler posed questions to Mr. Poley regarding fulfillment of his alleged obligations covered by those same regulations. After Poley had answered those questions propounded by plaintiff's counsel, the following took place:
MR. TAGGART: (COUNSEL FOR LP&L)
MR. KLEIN: (PLAINTIFF'S COUNSEL)
Let me reserve my right to introduce sections of that.
Later, when the jury was recessed, plaintiff's counsel objected to the introduction of the OSHA regulations, stating: "I didn't get a chance to object on the record because it was improper to do so in front of a jury." LP&L's counsel observed that Poley was a third party defendant charged with proximately causing the accident by violating OSHA regulations. Since LP&L was seeking contribution from Poley, the regulations were properly material to the merits of the third party demand.
The trial judge refused to withdraw the regulations from the evidence, stating that his instructions to the jury would settle the issue. The jury returned and the trial resumed. After all the witnesses testified, the trial judge instructed the jury:
Any confusion or distraction which may have been created by the introduction of the regulations was cleared up by the trial judge's instruction. Even assuming, arguendo, that it was improper for the jury to have been exposed to the regulations, such exposure was not prejudicial and would constitute harmless error. Furthermore, the objection came too late. In Jack v. Henry, 128 So.2d 62, 70 (La.App. 1st Cir., 1961), where there existed a chronology of trial events similar to those here existent, the court observed:
Appellant contends that the trial judge erred in refusing to instruct the jury regarding "momentary forgetfulness". The trial judge rejected same with the following explanation:
The trial judge made no comment on his refusal to give plaintiff's requested charge regarding LP&L's alleged duty to warn, but, after discussing his reasons for rejecting certain proposed charges from both sides, he asked both counsel whether they had any objections. Counsel for plaintiff
Plaintiff's counsel also objected to the court's refusal to apply comparative negligence. Yet, scattered sentiment favoring the adoption of a comparative negligence doctrine
Finally, appellant asserts that the trial court erred in declining to answer two written questions posed by the jurors during their deliberations:
The judge instructed the jurors to rely on their recollection of his original instructions. In Renz v. Texas and Pacific Railway Co., 138 So.2d 114 (La.App. 3rd Cir., 1962), the court quoted 89 C.J.S. Trial § 475 as follows:
We find that the refusal to further instruct the jury was within the court's discretion and did not constitute reversible error.
The judgment of the 24th Judicial District Court for the Parish of Jefferson is affirmed. All costs of this appeal must be borne by the appellant.
ON APPLICATION FOR REHEARING
Before LEMMON, STOULIG and BEER, JJ.
For such weight as a reviewing court may see fit to accord, we agree with able counsel for applicant that a sensible interpretation of the transcript would support his contention that the actual words spoken by him in making a particular objection were: "Your Honor, I am reserving my rights to object to these entire regulations," rather than the words actually contained in the transcript which are: "Your Honor, I am reserving my rights subject to these entire regulations."
Our opinion remains unaffected thereby, but we believe that counsel should have the opportunity to make such use of this observation as he determines appropriate in such further proceedings as he may see fit to institute.
In this same vein, we note that our "out of hand" rejection of able counsel's articulate and perceptive views regarding the doctrine of comparative negligence should not be interpreted, in any sense, as an intellectual rejection of same. As an intermediate appellate court, we simply do not have the authority to read comparative negligence into the law of the State of Louisiana no matter what the individual or collective views of this panel may be.
With these observations, the application for rehearing must be denied.