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AUGUST 24, 1988




Jeff C. Anderson, as legal representative of George B. Anderson, deceased, appeals from a judgment of the circuit court of Leflore County against Hensley-Schmidt, an engineering firm with offices in Jackson. Because of the error of the circuit court in granting a contributory negligence instruction, we reverse.


 On October 19, 1979, George B. Anderson and Boyd Lewis

 Kilpatrick were manual laborers employed by Georgia Electric Company of Albany, Georgia (Georgia Electric), an electrical contractor. On August 2, 1979, Georgia Electric was the successful bidder for relocation and installation of traffic signal devices, which in turn was part of a revitalization of the downtown business district of the City of Greenwood (Greenwood). The city had its own electric utility, Greenwood Utilities (Utility), which operated under Miss. Code Ann. 21-27-11 - 13.

 Prior to the construction of this project, Greenwood, on September 25, 1978, entered into a contract with Hensley-Schmidt, Inc., for consulting and supervisory services for the entire project. Hensley-Schmidt engaged in traffic engineering, civil engineering, sanitary and waste disposal, water systems, and road designs. The contract between Greenwood and Hensley-Schmidt obligated the latter to exercise some safety control in the project construction. The Mississippi Standard Specifications for Road and Bridge Construction, 1976 Edition (sometimes called the "Red Book"), which was incorporated by reference into the contract between Greenwood and Georgia Electric, authorized the Engineer to suspend work due to failure to correct unsafe work conditions. The Engineer was the city engineer of Greenwood (Frank Jones) or his duly authorized representative, in this case Hensley-Schmidt. *fn1

 On October 19 one task of the Georgia Electric crew was to install a 35 foot concrete pole at the southwest corner of the intersection of Fulton and Henry Streets in Greenwood. The pole was to be inserted in a hole six feet in depth, leaving the pole 29 feet high when erected. Georgia Electric had a truck and trailer equipped to emplace light poles.

 Barry Hall was Georgia Electric's project manager. Charles Goodbar was superintendent for the job crew. Keith Lott was the inspector for Hensley-Schmidt.

 Shortly after 1:00 p.m. Hall and Lott were at this site discussing the project. Hall said that he was going to Memphis, and, accordingly left instructions with Goodbar not to erect the pole until the Utility was contacted to cover a high voltage line which would be only a foot and seven inches from the pole when it was erected.

 Goodbar sent a local laborer, David Lacy, to the Utility's office to contact Billy W. (Bill) Roberson, superintendent of the Utility, to cover the lines with insulation. Prior to this Greenwood, the Utility, Georgia Electric and Hensley-Schmidt representatives had all conferred

 and it was understood and agreed that the Utility would, when requested, take the necessary precautions to protect the Georgia Electric crew when poles were erected at a dangerous proximity to the high voltage lines. All recognized the extreme danger involved in these tasks, and the absolute necessity of taking proper precautions.

 While the crew was waiting, Goodbar told Lott that a sewer line may have been broken when the hole was dug, and upon inspection Lott found this to be true. He told Greenwood to wait until Roberson arrived and they could ask him about the sewer line. Goodbar and Lott then left the site momentarily to go to the local bus station to pick up payroll checks, as well as go to the local laundry. Upon returning they found Roberson, who had looked at the damaged sewer line, and who in turn had called Greenwood sewer department to inspect the sewer line. Roberson then said that he had to leave for a few minutes.

 Lott also had an appointment in Yazoo City that afternoon, and at 1:45 told Goodbar that he was going to his apartment and pack his clothes, and would be back at the intersection before he left for Yazoo City.

 Lott testified that when he returned he found Roberson had returned, and also Jones, the city engineer, as well as C. D. Caraway, an engineer with the state highway department. They were all gathered at the intersection. *fn2 While this group was assembled ...

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