# Eagleburger v. Emerson Electric Co. > Missouri Court of Appeals · June 29, 1990 · 794 S.W.2d 210 URL: https://www.frixlaw.com/law-library/cases/9773191 ## Case - **Full name:** Diane EAGLEBURGER, Et Al., Respondents, v. EMERSON ELECTRIC CO., Appellant - **Court:** Missouri Court of Appeals - **Decided:** June 29, 1990 - **Citations:** 794 S.W.2d 210; 1990 Mo. App. LEXIS 992; 1990 WL 88959 - **Precedential status:** Published - **Opinion:** Concurrence by Parrish - **Judges:** Crow, Shrum, Wasserstrom, Hogan, Parrish, Maus, Flanigan, Prewitt - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9773191 ## How later opinions describe it (automated extraction) - concluding a decision on ANSI standards’ relevance “was a determination to be made by the trial court” even though “there was substantial evidence by plaintiffs that the ANSI 35 standards applied . . . and substantial evidence by [the defendant] that they did not” - holding that point relied on that "does not identify any specific evidence that was excluded" preserves nothing for review ## Opinion text PARRISH, Judge, concurring. I concur in the majority opinion. In so doing, however, I offer the following observations regarding (1) the issue relating to “prior occurrences” of electrical accidents involving aluminum ladders as were summarized by plaintiffs’ Exhibit 54-A; (2) the sufficiency of the plaintiffs’ modification of MAI 25.04 as to any effect it had on the contributory fault instruction given on be *242 half of defendant; and (3) the testimony adduced, over defendant’s objection, regarding the actions which the decedent, Gene Eagleburger, customarily took, due to his illiteracy, when he had written materials relating to his job. Issue of Prior Occurrences There was no issue in this case as to the cause of Gene Eagleburger’s death. The simplicity of the facts in this case, in my opinion, makes unnecessary the showing of greater similarities between the occurrence which produced the death of Gene Eagle-burger and the prior occurrences in evidence which were summarized by plaintiffs’ Exhibit 54-A. The force that caused Gene Eaglebur-ger’s death was electrical current which flowed from a power line to the aluminum ladder, or hoist, which had been sold by defendant Emerson Electric Co. and which was being raised by Gene Eagleburger with the assistance of Jack Eagleburger (who was also killed in the accident which produced this litigation) and John Eagle-burger. Defendant acknowledges that the electricity that flowed through the ladder, or hoist, caused Gene’s death. The dispute between the parties is over the question of whether the ladder, or hoist, was an unreasonably dangerous product, not over whether Gene Eagleburger died as a result of electrocution. Plaintiffs’ expert witness contended that the ladder, or hoist, was unreasonably dangerous as manufactured and sold because (1) it was unwieldy for the reason that it was constructed so as to permit it to be raised to a height of 44 feet as a single unit; (2) it exceeded the length that the National Electric Safety Code recommended for such devices utilized in the vicinity of high voltage electrical conductors; (3) the device had no insulating materials or links to guard against foreseeable conduction of electrical currents; and (4) the device contained no appropriate warnings of the inherent dangers produced by its use near high voltage electrical conductors. The evidence must be viewed in the light most favorable to those theories of submission, and plaintiffs are accorded all reasonable inferences springing from the evidence so viewed which aid their theories of submission. Wallander v. Hicks, 526 S.W.2d 848, 850 (Mo.App.1975). Evidence was presented that permitted the jury to find that substantially more physical strength was necessary to extend the ladder, or hoist, beyond the 30 feet which plaintiffs’ expert suggested as a limitation on length than was necessary to extend the device up to 30 feet. Two men, according to the evidence adduced, could extend the device, with significant control over it, for 30 feet, but not for the 40-plus feet to which the device in question could be raised. Beyond a 30 foot extension, the device became unwieldy and difficult for two men to handle. The potential unwieldiness of the ladder, or hoist, in my opinion, was an appropriate basis upon which a jury could find that the device was unreasonably dangerous, as manufactured and sold, to use around electrical lines. For that reason, it is my belief that the fact that aluminum will conduct electricity was a proper issue in this case and that the admission of plaintiffs’ Exhibit 54-A was proper to demonstrate the dangerousness of a ladder, or hoist, which would extend to the length of the one in question. On that basis, I believe that the admission of plaintiffs’ Exhibit 54-A into evidence was not an abuse of the trial court’s discretion. Modification of MAI 25.04 I do not believe that plaintiffs’ modification of MAI 25.04 had the effect of virtually eliminating the defense of contributory fault in this case. Instruction 7, plaintiffs’ verdict-director, after hypothesizing that plaintiffs should recover if the alleged defective condition of the ladder, or hoist, (the product) “directly caused or directly contributed to cause the death of Gene Eagleburger,” went on to say “unless you believe plaintiffs are not entitled to recover by reason of Instruction *243 No. 8.” Instruction 8 hypothesized certain conduct of Gene Eagleburger and told the jury its verdict must be for Emerson if the jury believed “such conduct directly caused or directly contributed to cause any damage plaintiffs may have sustained.” Reading the two instructions together, in my opinion, all the jury would have had to find in order to return a verdict for defendant was that Gene Eagleburger’s conduct directly caused or directly contributed to cause any damage that plaintiffs sustained. Effect of' Decedent’s Illiteracy Regarding Written Directions or Warnings The evidence adduced infers that Gene Eagleburger had a habit, due to his illiteracy, of taking written instructions relating to his job to his wife for her to read to him. This apparently was a general habit. The evidence presented did not go to any direct issue related to Gene’s culpability in this case, but was used to attempt to rebut defendant’s assertion that, had there been written operating instructions for the ladder, or hoist, those instructions would have been of no use to Gene. Evidence of “habit” can be admissible. Hawkins v. Whittenberg, 587 S.W.2d 358, 363 (Mo.App.1979), citing other cases. The authorities cited in Hawkins afford a trial judge considerable discretion regarding the admissibility of such evidence. It is also not unusual for courts to determine that, if erroneously admitted, such evidence is not prejudicial. Id.; Hodges v. Hill, 175 Mo.App. 441 , 161 S.W. 633 (1913). In this case, the admission of this evidence was, in my opinion, within the sound discretion of the trial judge. I further believe, considering the entire record, that even if, in this instance, the trial judge abused his discretion, it did not prejudice the jury. I concur in the majority opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9773191. Public record. Not legal advice.