Brown v. Consolidated Light, Power & Ice Co.

• Citation: 137 Mo. App. 718,109 S.W. 1032
• Court: Court of Appeal of Missouri (US)
• Decision Date: 06 April 1908
• Parties: BROWN v. CONSOLIDATED LIGHT, POWER & ICE CO.

109 S.W. 1032

137 Mo. App. 718

BROWN v. CONSOLIDATED LIGHT, POWER & ICE CO.

Kansas City Court of Appeals. Missouri.

April 6, 1908.

Rehearing Denied May 4, 1908.

1. ELECTRICITY—CHARGED DEFECTIVE WIRES— DEATH—EVIDENCE.

In an action for death of plaintiff's husband from an electric shock derived from a broken telephone wire overhanging the sidewalk, evidence held to warrant a finding that the telephone wire received the deadly current from defendant's defective electric light wire.

2. SAME—NEGLIGENCE—CARE REQUIRED—CONSTRUCTION OF LINES.

Where prior to an electric storm defendant's electric light wires and certain telephone wires underneath were both in first-class condition, and contact could be brought about only by some disaster of a nature not to be anticipated or averted by human skill and foresight, defendant was not negligent in the construction and maintenance of its line prior to the storm, though required to exercise the highest degree of care with reference thereto.

3. SAME—DEATH OF PEDESTRIAN—BURDEN OF PROOF—RES IPSA LOQUITUR.

In an action for death of plaintiff's husband by coming in contact with a broken telephone wire heavily charged with electricity from defendant's electric light wire, and hanging about five feet above the sidewalk, proof of such facts was sufficient to require defendant to show that it was free from negligence under the doctrine res ipsa loquitur.

4. NEGLIGENCE—RES IPSA LOQUITUR.

The burden of establishing the ultimate fact of negligence rests on the plaintiff to the end of the case, and the sole function of the doctrine res ipsa loquitur in a case to which it applies is to raise a prima facie presumption of negligence from a given state of facts which will become conclusive if not rebutted by opposing evidence.

5. ELECTRICITY—DEFECTIVE WIRES—DEATH OF PEDESTRIAN—NEGLIGENCE.

Where defendant electric company maintaining highly charged electric light wires through a city street, with knowledge of the occurrence of an electrical storm and of the likelihood of damage to its poles and wires by lightning, made no tests of its line after 8:30 o'clock p. m. while the storm was in progress, but closed its offices, and intestate was killed between 5 and 6 o'clock a. m. on the succeeding morning by coming in contact with a broken telephone wire hanging just above the sidewalk and heavily charged with electricity from defendant's defective electric light wire, defendant was negligent in failing to make a proper inspection.

6. SAME—PLEADING—ISSUES AND PROOF.

Where, in an action against an electric company for causing intestate's death by a heavily charged wire permitted to hang over the sidewalk, the petition alleged that defendant negligently suffered the wire of a street railway company to be and remained on the street, charged with a voltage of electricity from defendant's wire sufficient to cause death to any person coming in contact therewith from 10 o'clock p. m. until 6 o'clock a. m. on the succeeding day, it was sufficient to notify defendant to prepare to meet the issue of negligence in failing to test its line between 8:30 o'clock on the preceding night and the hour of intestate's death.

7. SAME—CARE REQUIRED.

Where an electric company's line was damaged by a storm so that a telephone wire was burned off and hung heavily charged with electricity over the sidewalk, defendant was entitled to a reasonable opportunity to discover and locate the defect, and then to an additional reasonable time within which, while employing the greatest diligence, to recapture and render harmless the truant current.

8. SAME—INSTRUCTIONS.

Where, in an action for death of a pedestrian by coming in contact with a heavily charged telephone wire hanging over the sidewalk, which received the electric current from defendant's defective electric light wire, the evidence warranted a finding of defendant's negligence in failing to discover and remedy the defect within a reasonable time after the storm, which was alleged to have caused it, an instruction directing a verdict for defendant if defendant's construction was in proper condition when the storm began and the damage was caused by an act of God or other cause beyond defendant's control, notwithstanding sufficient time had elapsed between the infliction of the damage and intestate's death for defendant, in the exercise of ordinary care, to have discovered the damage and removed the danger, was erroneous.

9. SAME—REMOVAL OF DANGEROUS WIRES.

Where a telephone wire belonging to a railway company was burned off and hung heavily charged with electricity from defendant's electric light wire, about five feet from the sidewalk, defendant electric company was entitled to cut such telephone wire and remove it, if that was the quickest and most practical method of abating the danger.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by Annie Brown against the Consolidated Light, Power & Ice Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

John A. Eaton, for appellant. George V. Farris and H. W. Currey, for respondent.

JOHNSON, J.

Plaintiff, the widow of Bertie Edgar Brown, deceased, alleges that her husband's death occurred while he was walking on the sidewalk on a public street in Webb City, and was the result of contact with a fallen telephone wire, which the negligence of defendant had caused to become charged with a deadly current of electricity and to remain where it had fallen to the street to menace the safety of pedestrians. Verdict and judgment were for plaintiff in the sum of $4,000, and the cause is here on the appeal of defendant.

At about 5:15 o'clock in the morning of September 3, 1906, Mr. Brown started from his home in Webb City to go to a butcher shop on the east side of Allen street between Vine and Arch streets. He walked south on the sidewalk on the east side of Allen street a paved thoroughfare, and had reached a point about 25 feet away from the shop when death overtook him. No one saw him receive his death stroke, but in a few moments thereafter a passerby found him lying on the sidewalk unconscious and gasping for breath, and in another moment he was dead. A seared wound across the left side of his face showed that he had just received a violent burn which the surroundings disclosed had been inflicted by electricity of high potentiality. The Southwest Missouri Electric Railway Company was operating an electric street railroad along Allen street, and in connection therewith maintained a private telephone system. A line of poles set near the east line of the street served the double purpose of carrying the wires which supported the trolley wire for the railroad and the two telephone wires, which, constituting a metallic circuit, formed the necessary connection between the switchboard at the central office and the telephone instruments maintained at stations along the line. This telephone line crossed at right angles Arch and Vine streets, which ran east and west, and the wires were set about 2 feet apart and about 25 feet above the sidewalk. Defendant was engaged in the business of furnishing electric light and power for public and private use in Webb City, and the method it employed for transmitting currents of electricity was through overhead wires strung along the public streets. One of its lines ran along the south side of Vine street, and at the southeast corner of the intersection of that street with Allen street a pole 45 feet high supported an arc light suspended from the end of an arm which projected to the center of the square formed by the intersection of the streets. The wires which fed this lamp were carried on a cross-arm attached to the pole, and crossed Allen street at a height of from 10 to 15 feet above the telephone wires. They were insulated, each carried a current of more than 500 volts, and, so far as the direct evidence discloses, they were properly attached to the cross-arm and were in a condition of good repair on the evening preceding the accident. The telephone pole which supported at the north end the section of the telephone wires crossed by defendant's said light wires was about 25 feet north of defendant's pole described, and the pole at the south end of that section was near the butcher shop, approximately 150 feet south of Vine street, and perhaps 20 feet south of the point where Mr. Brown fell. Five or 6 feet north of the latter point was a dead shade tree. It was discovered that during the night preceding the accident a fire had occurred in the top of defendant's pole at the place where the crossarm was attached, that the insulation had been burned off of the light wires, and that the cross-arm had been burned in two. This had caused the light wires to drop down to the telephone wires with the result that the west one of the latter wires had been burned until it had parted and had fallen to the street, and one of the light wires rested on the east telephone wire with no insulation between them at the point of contact. The south end of the broken telephone wire remained attached to the pole near the butcher shop. Between that pole and the dead tree where it was caught in falling it looped down to a height of not more than 5 feet above the sidewalk, and the loose end of the wire depended from the north side of the tree to the street, where it lay sputtering electric fire. Under normal conditions the current carried on this wire was about 20 volts—not enough to endanger the safety of a person who might come in contact with it. It is evident from the conditions described by the witnesses that this wire which, beyond question, caused the death of Mr. Brown, was charged at the time with a foreign current of sufficient power instantly to kill a person. From the position of his body it appears that Mr. Brown passed safely by the tree, but accidently came in contact with the wire where it was looped. That he failed to discover its presence in...