Ballard v. Kansas City Power & Light Co.

• Citation: 298 S.W. 131,221 Mo.App. 1116
• Parties: JOE BALLARD, RESPONDENT, v. KANSAS CITY POWER & LIGHT COMPANY, APPELLANT. [*]
• Decision Date: 06 June 1927
• Court: Court of Appeals of Kansas

298 S.W. 131

221 Mo.App. 1116

JOE BALLARD, RESPONDENT, v. KANSAS CITY POWER & LIGHT COMPANY, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

June 6, 1927

Appeal from the Circuit Court of Jackson County.--Hon. E. E Porterfield, Judge.

Judgment affirmed.

Johnson Lucas & Graves, William C. Lucas and Ludwick Graves for appellant.

Clif Langsdale for respondent.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action in damages for personal injury. Defendant is a corporation engaged in the business of manufacturing and distributing electrical current in Kansas City, Missouri, and in furtherance of such business and in connection therewith, owns and maintains underground wires, cables, conduits and other apparatus. Plaintiff was employed by defendant as a cable splicer.

October 22, 1922, the date of the alleged injury, plaintiff was engaged in splicing cables in a chamber eighty-four inches below the surface of the pavement at the intersection of Eleventh and Oak streets in the city of Kansas City, Mo. In said chamber were cables and other apparatus maintained by defendant, the said chamber being entered through a manhole thirty inches in diameter which, when no one is operating therein, was covered by a heavy iron top or lid flush with the surface of the pavement, to avoid interference with travel thereover. On the occasion in question said lid was removed and plaintiff and a fellow workman were at the bottom of said chamber, engaged in joining cables. In this work, they used a heated substance technically known as "Ozite," a compound which resembles tar and which when heated to a high temperature becomes thin and liquid. On the surface of the street at the time was a man, also in the employ of defendant, who was known as a cable splicer's helper. Eleventh street runs east and west and Oak street north and south, the two streets intersecting at right angles. Oak street at the point of the alleged injury is thirty-four feet wide and Eleventh street is thirty-five feet wide from curb to curb. The manhole, or surface opening to the chamber involved herein, was in the intersection of the two streets mentioned, and was about nine feet west of the east curb line of Oak street extended, and about four and one-half feet north of the south curb line of Eleventh street extended.

As a part of the equipment used by defendant in the operation in which plaintiff was engaged is a small cart on, or in, which the necessary tools and supplies are kept for use. On the occasion in question such a cart was caused by defendant to be brought to the location. This cart is described as having a body three feet, two and one-eighth inches in width by three feet, eight inches in length, with projecting handles two feet, four inches in length, thus making the cart over all six feet in length and three feet, two and one-eighth inches in width. The height of the body was about fifty-two inches and the cart handles twenty-one and one-half inches above the surface of the street.

The cart was placed about four and one-half feet south of the south edge of the manhole and parallel with Eleventh street, with the handles extending toward the west. The rear, or east end of the cart was six and one-half feet from the east curb of Oak street and twenty-one feet, six inches east of the west curb of Oak street. It appears there was placed around the manhole a rectangular guard consisting of four upright posts and two sets of cross-bars of three-fourths inch iron pipe, one twelve inches above the street surface and the other thirty-three inches above the surface, the guard setting square with the compass. Extending upward from the post at the northwest corner of the guard was a red flag used as a warning signal, five feet, three inches above the street level. For the purpose of heating the Ozite compound, defendant used a small kerosene furnace on the top of which was placed an ordinary kitchen kettle containing the compound. The furnace and the kettle, with the handle of the latter down, were twenty-one inches from the street surface, and with the handle up the kettle was higher than the under surface of the cart handles, so that in the event the cart handles were moved north, the handle of the kettle would thereby be struck. The furnace with the kettle thereon was placed southwest of the manhole and within radiating range of the cart handles, so that, if the cart handles were moved north the north one would strike the handle of the kettle.

On the day of the injury, while plaintiff was in the manhole chamber and the cart and kettle on the street surface, a man named Bond driving a Ford car north on Oak street attempting to pass the cart handles through the twenty-one and one-half foot space on the west, when the driver of another Ford car, passing Bond on the left and from the rear, collided with the left rear wheel of Bond's car and pushed it to the east, causing Bond's car to strike the handles of the cart and knock them to the northeast and they, in turn, knocked the kettle from the furnace causing it to roll a distance of about eighteen inches to two feet, spilling the heated contents thereof on the pavement, into the manhole and onto plaintiff, severely burning and injuring him.

There was testimony in defendant's behalf to the effect that the surface of the street at the point of the accident sloped slightly to the south, while plaintiff's testimony is that the surface was practically level. The fact that the accident happened is undisputed and the character of the street surface is of no great moment excepting insofar as it may apply to the question of defendant's negligence in putting the furnace and kettle where they were placed. The petition alleges and the proof shows that the intersection in question was in the business portion of the city, over which a great deal of vehicle travel passed.

The petition charges negligence in that defendant failed to furnish plaintiff a safe place in which to work, in this: That the location of the cart, furnace and kettle was such that a vehicle might strike them and cause the liquid compound to fall upon plaintiff; that such situation was wanting in ordinary care on the part of defendant; (2) failure to use ordinary care to guard the kettle and hot compound from being upset by a passing vehicle; (3) that the location of the kettle, furnace and cart was too close to the opening of the manhole; and this was wanting in ordinary care; (4) that defendant negligently ordered and directed plaintiff to go into the manhole under the conditions then existing; and that such order was wanting in ordinary care. The petition alleges that as a result of the negligence charged plaintiff was badly burned and gives in detail the results thereof. But as defendant does not attack the amount of the verdict, the details of the injuries as pleaded need not be here set out. The answer is a general denial.

The cause was tried to a jury resulting in a verdict and judgment for plaintiff in the sum of $ 7000. Motions for a new trial and in arrest of judgment were ineffectual and defendant has appealed. No material dispute has arisen between the parties as to the facts, the controversy being based upon the application of the law to the facts.

Under its assignments of error defendant charges the trial court erred in refusing to sustain defendant's objection to the introduction of any evidence at the beginning of the trial and in refusing to sustain a demurrer at the conclusion of plaintiff's evidence; in refusing to give a peremptory instruction in the nature of a demurrer at the close of all the evidence; that, under the pleadings and the evidence plaintiff is not entitled to recover because, under the allegations of the petition and the evidence submitted, there was no act of negligence pleaded or proved; that the accident to plaintiff was not such as could reasonably have been anticipated by defendant; that the proximate cause of the injury was not from any negligent act, or negligent failure to act on the part of the defendant; but that the proximate cause of the injury was the negligent act, or acts, of...