Byerly v. Consolidated Light, Power & Ice Co.

• Decision Date: 06 April 1908
• Citation: 130 Mo. App. 593,109 S.W. 1065
• Court: Missouri Court of Appeals
• Parties: BYERLY v. CONSOLIDATED LIGHT, POWER & ICE CO.

109 S.W. 1065

130 Mo. App. 593

BYERLY v. CONSOLIDATED LIGHT, POWER & ICE CO.

Kansas City Court of Appeals. Missouri.

April 6, 1908.

Rehearing Denied May 4, 1908.

1. ELECTRICITY—ELECTRIC COMPANY—DUTY TO GUARD WIRES.

A company engaged in transmitting electricity owes the highest degree of care, to persons rightly on property crossed by its wires, to prevent the escape of electricity therefrom; and knowing that the premises of a mining company, crossed by its wires, are a place of industrial activity, where men are employed, and that an ever-increasing pile of tailings, on which employés of the mining company were frequently going, had approached dangerously close to the wires, it was the duty of the electric company to insulate or elevate the wires.

2. SAME—JOINT TORT-FEASORS.

An electric company is none the less liable for death from contact with its electric wire, negligently left low and uninsulated where it crossed the premises of a mining company, though the negligence of the mining company, employer of deceased, in not providing a safe place to work, co-operated with the negligence of the electric company in causing the death.

3. SAME—CAUSE OF DEATH—EVIDENCE.

Evidence in an action for death held insufficient to go to the jury on the question of its having been caused by negligence of an electric company, in leaving unguarded an electric wire, near which deceased was found, it being equally consistent with death having been produced otherwise than by the electricity, and making the cause a matter of conjecture.

Appeal from Circuit Court, Jasper County.

Action by Ella Byerly against the Consolidated Light, Power & Ice Company. Judgment for defendant and plaintiff appeals. Affirmed.

Sapp & Cheeseman and H. W. Currey, for appellant. John A. Eaton, Dudley W. Eaton, and E. H. McVey, for respondent.

JOHNSON, J.

Plaintiff, the widow of Willard E. Byerly, deceased, alleges in her petition that the death of her husband was caused by the negligence of defendant in maintaining wires carrying electric currents of high power in dangerous proximity to the place where her husband was required to work. At the conclusion of the introduction of plaintiff's evidence, the court gave the jury an instruction peremptorily directing a verdict for defendant, whereupon plaintiff took a nonsuit with leave to move to set the same aside, and, in due course of procedure, brought the case here by appeal.

At the time of his death, which occurred in the morning of August 4, 1906, Byerly was working at mill No. 5 of the Mercantile Mining Company, situated near Webb City but outside of its corporate limits. The production of lead and zinc from ore was the object of the operations conducted at the mill, and Byerly was employed to work at the "sludge table" an appliance for the separation of fine ore from sand. Water runs from the table continually and the operators are likely while at work to have their clothing moistened. A large tailings elevator was operated in connection with the mill. Its function was to carry off the refuse or tailings from the mill and deposit them in a pile. The spout from which the tailings (mixed with water) were discharged onto the pile was about 125 feet from the sludge table and in plain view therefrom. When the pile, which was situated on the mill premises, grew to the height of the spout, a mill trough or flume was put in to carry the tailings away from the spout for deposit and, as necessity demanded, the length of the flume was extended from time to time. By this process, the pile had reached a length of, perhaps, 150 feet. Its highest point was at the end under the spout where it had attained a height of about 45 feet. From that point, it gradually sloped to the ground. The flume ran along the crest, and therefore sloped downward from the spout to the place of discharge. Occasionally the flume became choked by the stoppage and accumulation of refuse, and it was one of Byerly's duties to keep it clear. To do this, it was necessary for him to ascend the pile to the place where the flume was choked, and to remove the obstruction with a scoop shovel. The mill had been in operation about four months and Byerly had been employed during that time in the capacity described. Defendant was engaged in the business of generating and supplying electricity for use in various mining mills and plants in that vicinity. Its product was distributed from its power house by means of wires carried on poles. One of its lines carrying four wires was built across the premises of the Mercantile Mining Company. The wires were strung about 25 feet above the ground and were uninsulated. When built, the line entirely cleared the tailings pile, but in time as the pile grew and extended in length, deposits were made under the line until on the day of the occurrence in question, the lowest wire was not more than 5 feet above the crest of the pile underneath. About a week before, defendant, at the request of the mining company, had elevated the wires by raising the height of one of the poles in that section some 8 or 10 feet, but in the meantime the pile had grown to the height stated. The nature and conditions of the right given by the mining company to defendant to build and maintain the line over its premises are not disclosed and we have no means of knowing which one of the parties was burdened with the duty of preventing interference between the expanding refuse pile and the wires. All we know is that the line was there, presumably by permission of some sort from the mining company, and that the wires were raised by defendant at the request of the mining company, but we do not know whether the latter work was done at the expense of defendant and in performance of a contractual obligation imposed on it by the terms of the grant, or was done at the charge of the mining company. No one witnessed the death of Byerly. He was observed to leave the sludge table and ascend the tailings pile for the purpose of clearing the flume. An hour afterward, the engineer of the mill saw him lying on the pile, went to him, and found him dead. He was lying directly under the wires, partly on one side and partly on his face, his head pointing up hill, his mouth filled with wet tailings. Across his forehead, extending from the hair to one eye, was a gash cut to the bone. There was no other mark of violence on his person. His hat of felt was wet, and bore a discolored spot on the front. There is no evidence that hat or clothing were wet when he ascended the pile or that the discoloration mentioned was produced by scorching. Rigor mortis set in early and continued long. Brown spots appeared on...