Winkelman v. Kansas City Electric Light Co.

• Decision Date: 06 February 1905
• Parties: WINKELMAN v. KANSAS CITY ELECTRIC LIGHT CO.
• Court: Missouri Court of Appeals

85 S.W. 99

110 Mo. App. 184

WINKELMAN v. KANSAS CITY ELECTRIC LIGHT CO.

Kansas City Court of Appeals. Missouri.

February 6, 1905.

ELECTRICITY — WIRES — DEFECTIVE INSULATION — INJURIES — CARE REQUIRED — PRESUMPTION OF NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — PETITION.

1. An electric light company is bound to use the "utmost degree of care" in keeping its wires properly insulated, to protect persons liable to come in contact therewith.

2. Where an injury results from contact with an electric light wire by its imperfect insulation, it is conclusively presumed that the owner of the wire was guilty of negligence.

3. A person injured by coming in contact with an electric light wire left improperly insulated cannot recover against the owner of the wire, if guilty of contributory negligence.

4. Where, in an action for injuries to a person by coming in contact with a defectively insulated electric light wire, the petition alleged a sufficient cause of action at common law, independent of a city ordinance pleaded, the petition was sufficient to support the action as developed by the evidence, regardless of the ordinance.

Appeal from Circuit Court, Jackson County.

Action by Lee Winkelman against the Kansas City Electric Light Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Boyle, Guthrie & Davison, for appellant. I. N. Watson and D. W. Brown, for respondent.

ELLISON, J.

Plaintiff instituted his action against defendant for damages resulting to him by reason of coming in contact with one of defendant's electric wires. The judgment was for plaintiff in the trial court. It appears that plaintiff was on what is known as a swinging scaffold hung down beside the brick wall of a building, and was engaged, with a trowel and mortar, in repointing the wall. The defendant's wires were stretched on poles along near the wall, and were about 20 feet from the ground. Plaintiff came in contact with one of the wires, and received such a shock as to render him unconscious. He was also burned about the hand, arm, shoulder, and hip.

1. It is urged that the following instruction was erroneous in not restricting defendant's duty to use every "reasonable" precaution which was accessible, the point being that by omitting the word "reasonable" the court held defendant too strictly, viz.: "The court instructs the jury that if you find that at the time and place in question the plaintiff was in a place where his business required him to be, and where he had a right to be, and if the defendant knew, or by the exercise of ordinary care would have known, that persons were liable to come in contact with its wire or wires in the performance of their duties, if you find persons were liable to come in contact with said wire or wires in the performance of their duties, then it was its duty to use every precaution which was accessible to insulate its wire or wires at that point, and at all points where the plaintiff would have the right to go to attend to his business, and to use the utmost care to keep them so, and for personal injuries, if any, resulting from its failure in that regard, it is liable in damages." There are various degrees of care required in different jurisdictions with reference to the various dangerous appliances and methods now in use. In some courts it is held, even as to such exceedingly dangerous appliances as electricity, that "ordinary care" or "reasonable care" is what is required, while in others an extraordinary degree of care is required — that is to say, something more than mere reasonable care. The case of Geismann v. Missouri Electric Co., 173 Mo. 654, 678, 73 S. W. 654, undoubtedly puts this state with the latter class, for it is there expressly said that the law requires more than keeping the wires reasonably safe. But in consideration of the extended discussion of the Geismann Case, and the conflicting views which counsel have taken of it, and the binding obligation on this court of what is there said, we will state our understanding of the rule there laid down. The particular part of the opinion...