Bridges v. Arkansas-Missouri Power Co.

• Decision Date: 08 December 1966
• Docket Number: No. 8568,ARKANSAS-MISSOURI,8568
• Citation: 410 S.W.2d 106
• Parties: Earl Bland BRIDGES, by his next friend, Cecil Bridges, Plaintiff-Appellant. v.POWER COMPANY, a corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 106

410 S.W.2d 106

Earl Bland BRIDGES, by his next friend, Cecil Bridges Plaintiff-Appellant. v. ARKANSAS-MISSOURI POWER COMPANY, a corporation, Defendant-Respondent.

No. 8568.

Springfield Court of Appeals, Missouri.

Dec. 8, 1966.

Dalton, Treasure & Bullard, Kennett, for plaintiff-appellant.

Jones & Stillman, McHaney, Billings & Welman, Kennett, for defendant-respondent.

STONE, Presiding Judge.

For personal injuries from electrical burns and shock sustained during the early afternoon of Friday, October 16, 1964, at Kennett, Missouri, plaintiff Earl Bland Bridges, who was sixteen years and eleven months of age at the time of accident, had judgment for $15,000 upon a unanimous jury verdict. On the after-trial motion of defendant, Arkansas-Missouri Power Company (V.A.M.R. Rule 72.02; V.A.M.S. § 510.290), the trial court set aside the judgment for plaintiff and entered judgment for defendant on the stated ground that 'plaintiff was guilty of contributory negligence as a matter of law.' Although defendant's alternative motion for new trial was not ruled as it should have been (State ex rel. and to Use of Hikcory County v. Davis, Mo., 302 S.W.2d 892, 897--898(8--10); Dawson v. Scherff, Mo., 281 S.W.2d 825, 831(5); Hughes v. St. Louis Nat. League Baseball Club, 359 Mo. 993, 224 S.W.2d 989, 991--992(1--3), 16 A.L.R.2d 904), that omission becomes unimportant on this appeal, where the sole issue presented by plaintiff's-appellant's brief is as to whether or not he was contributorily negligent as a matter of law and the only additional issue raised by defendant's-respondent's brief is as to whether plaintiff made a submissible case of actionable negligence on the part of defendant. ¹ We remind ourselves preliminarily that, in determining both of the aforesaid issues, we must consider the evidence in the light most favorable to plaintiff, must accord to him the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendant's evidence except insofar as it may aid plaintiff's case. Erbes v. Union Electric Co., Mo., 353 S.W.2d 659, 663(1); Chailland v. Smiley, Mo. (banc), 363 S.W.2d 619, 623(1), 5 A.L.R.3d 288.

Plaintiff and his two companions at the time of accident, namely, his brother Jerry Don Bridges and Thomas Burnett, both then fifteen years of age, were high school students. That was plaintiff's second year in the ninth grade; and, at the time of trial on December 21, 1965, he was in his third year in the same grade. The account of plaintiff and his companions concerning their conduct on the day of accident begins with the noon hour recess, during which they ate and played a pinball machine at a bowling alley. Instead of returning to school at 1:00 P.M., the youthful trio 'decided to play hooky' and began (as they put it) a course of 'just walking around' and 'just messing around,' which took them first to a grocery store for 'a soda' and thereafter along a meandering route (concerning which there were conflicts in the testimony) over city streets and then either through an old orchard and a nine-acre cotton patch or along the right of way of a north-south railroad spur track to an oak tree in the 'northeast part' of the City of Kennett at the east end of the cotton patch and near the unfenced west line of the railroad right of way.

This was a large, bushy tree with numerous branches and dense foliage, which stood directly under defendant's north-south three-phase, 33,000 volt, electric transmission line carried overhead on insulators mounted on crossarms at the top of wooden poles 34 6 above the ground. The trunk of the oak tree stood within five feet of one such pole. It being impracticable to insulate lines carrying high voltages, the three overhead wires were uninsulated. In answers to interrogatories received in evidence, defendant stated that in September 1962 'trees were trimmed along the entire (transmission) line by George Woods and his crew' and the oak tree then had been trimmed 'so that all limbs were three feet below or distant from any of the wires of the transmission line'; that there had been aerial patrols of this line 'at monthly intervals (from) May through October of 1962 and 1963'; and that the last inspection of this line prior to the accident had been in May 1964 by J. N. Goldsmith and his line crew. However, defendant's employee Ross (called as a witness for plaintiff), for thirteen years a member of a four-man tree-trimming crew under foreman George Woods (who did not testify), had no recollection of that crew having trimmed the oak tree in September 1962 or at any time prior to plaintiff's accident; and defendant's employee Goldsmith (also called by plaintiff), foreman of a crew 'that maintains and constructs power lines,' did not remember any inspection of that line during 1964.

In any event, the record is clear that, at the time of plaintiff's accident, the top of the oak tree had grown into defendant's transmission line. That was developed in defendant's cross-examination of plaintiff's first witness, one Estes who had taken photographs of the oak tree on the day of accident, when the witness was asked 'could you see them (the wires) in the top of the tree' and answered 'yes, sir.' Later in the trial, defendant's employee Ross testified that, when his crew cut down the oak tree on November 9, 1964 (twenty-four days after plaintiff's accident), he had to trim the top of the tree before he could fell it because the branches were 'up between the lines.' When asked specifically 'what limbs, if any, were touching the wires,' Ross said 'just in the center of the tree.' Branches then were touching 'the outside wires' and, although not then in contact with the center wire of the three-wire transmission line, were in position to have been blown into that wire also.

The lowest limbs of the oak tree were not less than six feet above the ground--plaintiff's companion Burnett said 'between six and seven feet' and witness Estes thought 'approximately eight to ten feet.' But whatever the precise height of the lowest limbs may have been, plaintiff had (so he said) climbed into this tree 'about twelve times' during the Spring and Summer of 1964, accompanied on five or six of those occasions by his brother Jerry Don and sometimes by three other youths all of whom were identified by name but none of whom were called as witnesses. There is no suggestion that any of those previous excursions into the tree had been other than uneventful.

On the occasion under review, plaintiff's companion Burnett, then 5 7 to 5 8 tall, jumped and grabbed a limb with one hand and plaintiff boosted him into the tree. The record is subject to different inferences as to whether plaintiff's brother Jerry Don, then about 5 7 tall, climbed into the tree unassisted or was boosted into it; but we find no contradiction of plaintiff's testimony that he, then about 5 10 ' tall and 125 pounds in weight, climbed into the tree without assistance. Whatever the order of their ascension into the tree may have been (as to which there were testimonial discrepancies), the youths agreed that plaintiff climbed to a point where his head was six feet from the top of it, that the Burnett youth was 'about middleways' in the tree, and that plaintiff's brother Jerry Don 'wasn't very high.' None of the youths had any purpose in climbing the tree. As plaintiff himself aptly described their conduct, they were 'just messing around, passing the time away.' At the moment of tragedy, plaintiff was 'setting on a branch' climbed to a point where his head was six half standing' with 'his back up against a limb and his feet on one of the lower branches' (so the Burnett youth recollected) or 'sort of leaning back on a limb' (so plaintiff's brother thought). Whichever description of plaintiff's position may have been the most accurate, there was no evidence that any of the youths were, at the time, doing anything other than talking. After they had been in the oak tree about three minutes, plaintiff and his companions heard a 'loud humming sound * * * and that's when the electricity hit us.' All of the youths were rendered unconscious. Plaintiff fell to the ground and did not regain consciousness until he 'come to in the emergency room' at the Dunklin County Memorial Hospital. Plaintiff's brother Jerry Don 'woke up * * * laying on the ground' with plaintiff 'laying beside me.' Young Burnett 'woke up sort of dazed' with some unidentified man 'trying to help me get out of the tree.'

There being no complaint that the verdict was excessive, it will suffice to record that plaintiff sustained severe burns and injuries, including a scalp laceration requiring ten sutures, a fourth degree burn of the right shoulder which became grossly infected with a large gangrenous area about eleven inches by ten inches in size 'that had the appearance of charred beefsteak,' and another fourth degree burn on the right leg with another gangrenous area some eight inches by five inches in size; that, when moved to a St. Louis hospital two days after the accident and placed under the care of a plastic surgeon, plaintiff was 'an acutely ill boy * * * dull and lethargic, nauseated, unable to take fluids,' so that 'it was necessary to give him fluids intravenously for a good many days'; and that, in the interim before his discharge from the hospital on December 11, 1964, he underwent nine operations under general anesthesia, each of which involved both debridement and skin grafting. Fortunately, the results were beyond the surgeon's expectations and the only permanent condition other than scars and sensitivity in the grafted areas, is what the attending physician in Kennett described as 'possibly a ten per cent loss of strength in the injured (right) arm.'

Was plaintiff guilty of contributory negligence as a matter of law? Instant defendant's argument on the issue of contributory negligence emphasizes additional...