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CHARLES DUANE DAVIS, JR. v. SINGING RIVER ELECTRIC POWER ASSOCIATION AND GROVE MANUFACTURING COMPANY

JANUARY 28, 1987

CHARLES DUANE DAVIS, JR.
v.
SINGING RIVER ELECTRIC POWER ASSOCIATION AND GROVE MANUFACTURING COMPANY



BEFORE WALKER, C.J., DAN LEE AND GRIFFIN, JJ.

WALKER, C.J., FOR THE COURT:

The appellant, Charles Duane Davis, initiated this action by Bill of Complaint, as amended, filed in the Circuit Court of Jackson County seeking $2,500,000.00 in compensatory damages alleged to have resulted from injuries sustained in an electrical shock accident. Following trial by jury, judgment was entered in favor of the appellees, Grove Manufacturing Company and Singing River Electric Power Association (hereinafter Grove and Singing River). We find no error in the trial below and affirm.

Davis was employed by Mid-State James Paving Company (hereinafter Mid-State) as a road and shop mechanic. On

 September 24, 1980, the date of the accident, Davis was assigned to the company's North Plant, a temporary asphalt facility established by the company to facilitate construction of Interstate Highway 10. The electrical service to the plant was designed, installed and maintained by Singing River. Davis usually worked at the company's South Plant in Moss Point, Mississippi. The purpose of his assignment on September 24th was to assist Gene Therrell in the repair of a transmission on a front-end loader.

 The men sought a level location at the North Plant to begin their work. The first site selected was rejected due to a low hanging overhead power line. The men then selected an area once occupied by some truck scales which was "clear, flat, and level, and [without] any traffic" [truck].

 Prior to making the repairs it was necessary to use a hydraulic crane, also known as a cherry-picker, to remove several counter weights from the loader prior to pulling its transmission. The crane was designed and manufactured by Grove. Therrell was operating the crane from inside its cab while Davis, located on the ground, was attaching a chain from the crane to the counter weights when the crane made contact with an overhead wire sending approximately 7,600 volts of electricity through Davis' body. As a result of the accident fourteen percent (14%) of Davis' body was severely burned. He was hospitalized for fifteen (15) weeks and returned to work for Mid-State in January of 1981.

 The appellant's Bill of Complaint was couched in terms of strict liability, negligent design and breach of warranty. After reviewing the evidence and hearing all testimony, both expert and lay, the jury entered a verdict in favor of Grove and Singing River, hence this appeal.

 Following trial, the appellant filed a motion for a new trial on the ground that he learned, after trial, that one of the jurors had a son who was represented by counsel for Singing River, and neither the juror or opposite counsel informed the court of this fact during voir dire. Appellant asserts the lower court's denial of his motion for a new trial was error.

 The discretion vested in a trial judge with respect to a motion for a new trial is quite broad. This Court's authority to reverse is limited to those cases wherein the trial judge has abused his discretion. Shelton v. Puckett, 483 So. 2d 354 (Miss. 1986).

 A hearing was had on appellant's motion and the testimony produced at that hearing was that counsel for Singing River had entered an appearance on behalf of the juror's son five (5) months prior to the trial of the case sub judice. Other counsel had been hired by Nationwide Insurance Company to defend the son for his involvement in an automobile collision. The juror's son at the time of this trial was a resident of Washington, D.C. and counsel had not met him until December 22, 1983, after the trial of this case. Furthermore, counsel did not personally know the juror who sat on this case, or that he was related to anyone his firm legally represented or was representing.

 Appellant's argument is unpersuasive as there is no record that the juror was aware of counsel's representation of his son.

 The appellant next argues it was error to introduce into evidence photographs depicting facilities different from that where the accident occurred.

 The first photographs complained of were introduced over objection during cross-examination of the appellant. The photographs depicted the overhead distribution electrical system at the south asphalt facility where Davis routinely worked. The photographs were introduced to establish that Davis had worked under the same conditions at the South Plant as existed at the North Plant and was knowledgeable as to the obvious danger and care required of one working near electrical power lines.

 A plaintiff may not close his eyes to obvious dangers and cannot recover where he possesses facts from which he would be legally charged with the appreciation of the danger. Braswell v. Economy Supply Company, 281 So. 2d 669 (Miss. 1973). The appellant's claim fails as he himself admitted the electrical power service provided by Mississippi Power Company at the South Plant was almost exactly the same as that service provided by Singing River to the North Plant. Davis also admitted he did not look up to see the power ...


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