48 P. 927 (Kan.App. 1897), 446, The Leavenworth Coal Company v. Ratchford
|Citation:||48 P. 927, 5 Kan.App. 150|
|Opinion Judge:||MAHAN, P. J.|
|Party Name:||THE LEAVENWORTH COAL COMPANY v. JOHN RATCHFORD|
|Attorney:||Hook & Atwood, for plaintiff in error. C. F. W. Dassler and Lucien Baker, for defendant in error.|
|Case Date:||April 30, 1897|
|Court:||Court of Appeals of Kansas|
April 30, 1897.
Error from Leavenworth District Court. Hon. Robert Crozier, Judge. Affirmed.
This was an action for damages for injuries suffered by the defendant in error from contact with a broken electric-light wire belonging to the plant operated by the plaintiff in error in the city of Leavenworth. As gleaned from the evidence, the facts were, that, during the early hours of the morning of May 7, 1889, a storm of rain, wind, thunder and lightning occurred, which raged till about four o'clock A. M.; that about 6 A. M. the defendant in error discovered that one of the plaintiff in error's wires had broken and that one end of it had fallen upon a stable or shed at the rear of his premises and was emitting sparks and blazing, to the apparent danger of his buildings. Seizing a base-ball bat he went out and sought to remove the wire, and, in doing so, as it fell to the ground unexpectedly, he in some manner came in contact with it and was severely shocked, thrown down and apparently killed; that as a result he suffered much pain and was permanently crippled; that the plaintiff in error was operating a line of over forty miles, and employed, besides a superintendent and a lineman, two engineers, one of whom had charge of the plant from 7 A. M. till 7 P. M., and the other from 7 P. M. till 7 A. M.; that about five o'clock that morning, the night engineer discovered something was wrong with the operation of the plant and called the superintendent by telephone, and after three calls, that official came and perceived that something was wrong, but could not locate the trouble -- except that it was out on the line and not in the plant itself; that the superintendent spent a half or three-quarters of an hour in his investigations, when a boy arrived and informed him of the accident to the defendant in error, whereupon the plant was shut down and the superintendent repaired to the scene of the accident; that the plaintiff in error had in use a magneto bell, the latest and most improved device for ascertaining whether the circuits were complete and whether any wires were broken or grounded, but, although the superintendent had it at hand and had often used it before, its use was not resorted to on this occasion; that the plant could have been suspended, this test applied and operations resumed in three minutes, but, as expert electricians testified, under the conditions prevailing at the time, the test would not have disclosed the break but would have indicated an unbroken circuit.
The defendant in error had a verdict for twelve hundred dollars, upon which judgment was entered, and a number of special questions were answered by the jury. The plaintiff in error's motion for a new trial having been overruled, it excepted, and brought this proceeding in error. The errors assigned fully appear in the opinion.
[5 Kan.App. 153]
Counsel for plaintiff in error make in their brief eleven assignments of error. The first is, that the jury erred in finding that the failure to use the magneto bell contributed to the accident. The special findings of the jury upon that question are as follows:
"Is the magneto bell the best or most approved device for the purpose of ascertaining whether an electric current is broken or not?" A. "Yes."
"Did the defendant have such magneto bell in its power house when the electricity was being generated at the time of the injury complained of?" A. "Yes."
"If, when it was discovered in the power house that something was wrong, the machinery had been shut down, or the electric current shut off, and the magneto bell had been used for testing whether the outside circuit was complete on which the broken wire was, would such test have shown that the circuit was complete?" A. "We do not know."
"Would such test as mentioned in the last question have indicated that the wire was broken?" A. "We do not know."
40. "Do you find that the negligence of the defendant was the proximate cause of the injury?" A. "Yes."
43. "If you answer question forty 'Yes,' then state whether such negligence consisted in not using the magneto bell and testing...
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