Brubaker v. Kansas City Electric Light Co.

• Decision Date: 04 May 1908
• Citation: 110 S.W. 12,130 Mo.App. 439
• Parties: LAWRENCE BRUBAKER, by next friend, Respondent, v. KANSAS CITY ELECTRIC LIGHT COMPANY, Appellant
• Court: Kansas Court of Appeals

110 S.W. 12

130 Mo.App. 439

LAWRENCE BRUBAKER, by next friend, Respondent, v. KANSAS CITY ELECTRIC LIGHT COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 4, 1908

Appeal from Jackson Circuit Court.--Hon. Henry L. McCune, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Boyle Guthrie, Howell & Smith for appellant.

(1) Did plaintiff prove that defendant owned or maintained the wires in question, and if so was that issue fairly submitted to the jury? (2) The issue submitted in plaintiff's instruction was not the issue made in his petition. (3) There was no evidence of knowledge or notice of this wire by defendant. (4) What was the proximate cause of the accident? Luehrman v. Laclede Gas Light Co., 127 Mo.App. 213 104 S.W. 1128. (5) Was the plaintiff guilty of contributory negligence?

Joseph G. Littick and George W. Littick for respondent.

(1) Persons who for their own private gain or profit, send the dangerous agency, electricity, out into the streets and alleys of a city, are bound to use the utmost care in preventing the escape from the wires of the electrical current to the injury of others. Geissman v. Electric Co., 173 Mo. 678; Winkelman v. Electric Light Co., 110 Mo.App. 184; Girarandi v. Electric Imp Co., 107 Cal. 124; Haynes v. Gas Co., 114 N.C. 211; McLaughlin v. Electric Light Co., 100 Ky. 173; Perham v. Electric Co., 33 Ore. 451; 1 Thompson on Negligence (2 Ed.), sec. 797; Electric Co. v. Simpson, 21 Colo. 371; Coal Co. v. Ratchford, 5 Kan.App. 150; Frauenthal v. Light Co., 61 Mo.App. 8; Larson v. Railway, 56 Ill.App. 263, 267. (2) Such persons are bound to the utmost care in inspecting the wires carrying the electrical current and to remove or remedy any defect thereon, no matter how created or by whose fault or act. Geissman v. Electric Co., 173 Mo. 678; Winkelman v. Light Co., 110 Mo.App. 184; Griffin v. Light Co., 164 Mass. 492; Mitchell v. Light Co., 45 So. Car. 146; Cook v. Electric Co., 9 Houston (Del.) 309; Light Co. v. Orr, 59 Ark. 215; Coal Co. v. Ratchford, 5 Kan.App. 150; Railway v. Owings, 97 Ga. 663, 666; 1 Thompson on Negligence (2 Ed.), sec. 892; Turton v. Electric Co., 185 Pa. St. 409; Larson v. Railway, 56 Ill.App. 267; Haynes v. Gas Co., 114 N.C. 211; Railway v. Shelton, 89 Tenn, 423; Illingsworth v. Light Co., 161 Mass. 583. (3) These duties it owes to all persons who are injured at places where they are entitled as of right to be for purposes of business or pleasure. Geissman v. Electric Co., 173 Mo. 674; Ennis v. Gray, 87 Hun 359; Griffin v. Electric Light Co., 164 Mass. 492; Perham v. Electric Co., 33 Ore. 477; McLaughlin v. Electric Light Co., 100 Ky. 173; Railway v. Owings, 97 Ga. 666; Overall v. Electric Light Co., 47 S.W. 442; Girarandi v. Electric Imp. Co., 107 Cal. 120. (4) A defendant who has failed to exercise ordinary care will not be excused by the fact that the injury in its manner of occurrence could not reasonably have been anticipated. It is sufficient if the injury is the natural result of some act or omission of the defendant's, which the defendant could reasonably anticipate would probably cause some injury. Hoepper v. Hotel Co., 142 Mo. 378; Miller v. Railway, 90 Mo. 394; Graney v. Railway, 140 Mo. 98; Smith v. Railroad, Law Reports, 6 Common Pleas, 20; Dixon v. Scott, 181 Ill. 116; 21 Am. and Eng. Ency. of Law (2 Ed.), p. 488. (5) A defendant whose negligent acts or omissions have directly contributed to plaintiff's injury will not be excused by the fact that other causes for which he was not responsible have also contributed proximately to the injury in such a manner that but for them the injury would not have happened. Love v. Manufacturing Co., 160 Mo. 626; Bassett v. St. Joseph, 53 Mo. 300; Musick v. Dold Packing Co., 58 Mo.App. 322; Brennan v. St. Louis, 92 Mo. 482; Hull v. Kansas City, 54 Mo. 598; Waller v. Railroad, 59 Mo.App. 426; Meade v. Railroad, 68 Mo.App. 101; McDermott v. Railroad, 87 Mo. 301; Ring v. Cohoes, 77 N.Y. 83.

OPINION

JOHNSON, J.

--Plaintiff, a minor, brought suit by his next friend to recover damages resulting from personal injuries which he alleges were caused by the negligence of defendant. Verdict and judgment were for plaintiff in the sum of one thousand dollars. Defendant contends for a reversal of the judgment on the ground that its demurrer to the evidence should have been sustained, and first we shall consider the questions involved in that contention.

The injury occurred on the afternoon of August 23, 1905, in a public alley between Seventh and Eighth streets in Kansas City. Plaintiff, a boy nine years old, while at play in the alley near its intersection with Prospect avenue, grasped the end of a wire which was hanging loose from an overhead electric wire and received a shock of electricity of sufficient force to produce immediate unconsciousness and to inflict severe physical injuries, the nature and extent of which need not be considered since no suggestion is made of an excessive verdict.

Defendant, a corporation doing business in Kansas City, manufactures and supplies electricity for domestic and industrial uses and distributes it over the city by means of wires strung on poles. One of its lines ran along the alley where plaintiff was playing. Near that point the wires passed among the branches of a tree at a height from the ground of about twenty feet. Witnesses testified that during a period of two months or more before the date of injury, they observed that one of the wires had come into contact with a limb of the tree and as a result of chafing caused by the swaying of the limb, had been stripped of its insulation for the space of five or six inches. A deep burn in the wood and occasional appearances of fire at the point of contact demonstrated that some of the fluid was being deflected from the wire to the tree. Further, they noted that someone had attached one end of a piece of wire to the wire described, at the place where it was bare and had permitted the other end of the wire thus attached to hang loose. The free end reached almost to the ground. This swinging wire was insulated except for a short space at each end where the insulation had been worn or stripped off. It was from its loose end that plaintiff received the injurious shock.

The petition contains the allegation that "defendant knew or could have known by the exercise of reasonable care and caution of the dangerous condition of the obstruction of said wire so placed or attached to its overhead line, conveying said dangerous and deadly current of electricity, in time to have averted said accident, but carelessly, recklessly and wrongfully suffered and permitted said wire to remain attached to its overhead line, and suspended therefrom in said public place, so imperfectly, insufficiently and improperly insulated, and become charged with said dangerous and deadly current of electricity, to hang and trail over, in, upon and along the public place at said point, and plaintiff while in the lawful use of said public place, at said point, and while in the exercise of due care and caution, came in contact with said wire," etc. The answer filed contains a general denial and a plea of contributory negligence.

First, defendant argues that its request for a peremptory instruction should have been granted because of the failure of plaintiff to show by substantial evidence that defendant owned the wire from which the injuring current escaped to the suspended wire. The general denial put in issue all of the constitutive facts of the cause of action pleaded, among them the fact that the wire in question was the property of defendant, or, at least, was being used by defendant in the transmission of the electric current that inflicted the injury and the burden was on plaintiff to establish by proof the existence of that fact. Defendant was not required to prove a negative, and its failure to offer any evidence on the issue did not relieve plaintiff of his burden. It has been held that where a defendant suffers a cause to be tried on the assumption that he is the owner of the instrumentality from which the plaintiff received his injury, slight evidence of the fact of such ownership will suffice to support a verdict in favor of plaintiff. [Oyler v. Railway, 113 Mo.App. 375.] But in the present case, counsel for defendant, in the examination of plaintiff's witnesses, clearly evinced a purpose of contesting the issue and, therefore, cannot be said to have conceded, in effect, the fact of defendant's ownership of the wire or of the damaging current. In the absence of such implied concession, the rule stated in the Oyler case is without application and plaintiff should be held to the burden of treating the fact as one of the issues to go to the triers of fact. Turning to the record, we find before us evidence adduced by plaintiff of sufficient evidentiary strength to take the issue to the jury under the rule just stated. One of the witnesses examined on the subject testified, in part, as follows:

"Q. What kind of a wire was this that projected down to the ground? A. Why, it seemed to be one wire ran down as far as I noticed. Q. Where was it attached at the top? A. Why, it was attached to the electric wire. Q. Attached to the electric wire? A. Yes, sir. Q. What electric wire? A. The Kansas City Electric Light Company's wire. Q. Now is that the main wire that passes from post to post? A. Yes, sir. Q. Now, was it attached to one of those wires? A. It was attached to one of them wires, yes, sir."

The foregoing is from the examination in chief. On cross-examination, the witness testified:

"Q. You say these are the Kansas City Electric Light Company's wires? You simply understood that to be the fact? You don't know that to be the fact, as a...