Choka v. St. Joseph Railway, Light, Heat & Power Company

• Decision Date: 07 March 1924
• Docket Number: 22701
• Parties: CLARA CHOKA v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY, Appellant
• Court: Missouri Supreme Court

260 S.W. 67

303 Mo. 132

CLARA CHOKA v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY, Appellant

No. 22701

Supreme Court of Missouri

March 7, 1924

Appeal from Buchanan Circuit Court; Hon. L. A. Vories Judge.

Affirmed.

Robert A. Brown and Richard L. Douglas for appellant.

(1) Under all the evidence in the case the poles, cross-arms braces, wires and other appliances pertaining thereto and described in evidence were the sole property of the defendant, and the deceased was without right or authority by invitation, as a licensee or otherwise, to go upon said pole cross-arms or braces, or among said wires, and in going upon one of defendant's braces and among defendant's wires he was a trespasser, and the defendant owed him no duty other than not to willfully or wantonly injure him, and the demurrers should have been sustained. Featherstone v. Railway Co., 174 Mo.App. 669; Hamilton v. Railroad Co., 250 Mo. 714; Wells v. Lusk, 188 Mo.App. 63; Williams v. St. Joseph, 166 Mo.App. 299; Kelly v. Benas, 217 Mo. 9; Butler v. Railway Co., 155 Mo.App. 287; Henry v. Disbrow Mining Co., 144 Mo.App. 350; Hall v. Railroad, 279 Mo. 553; Ervin v. Railroad, 158 Mo.App. 1; Barney v. Railroad, 126 Mo. 372; Goumans v. Railroad, 143 Mo.App. 75; O'Donnell v. Railroad, 197 Mo. 110; Stamford Oil Mill Co. v. Barnes, 103 Tex. 409; Louisville Home Telephone Co. v. Beeler, Admx., 125 Ky. 366; City of Greenville v. Pitts, 102 Tex. 1; Sias v. Railway Co., 179 Mass. 343; Hector v. Boston Electric Light Co., 161 Mass. 558; Graves v. Water Power Co., 44 Wash. 675; Hickok v. Auburn L. & P. Co., 200 N.Y. 464; Cumberland Tel. & Tel. Co. v. Meitins, 116 Ky. 554; Allen v. Railroad, 115 Me. 361. (2) The deceased was an experienced tinner and metal worker, having worked at his trade upon public and private buildings in the city for more than twenty-one years. He knew, and of necessity had to know, the danger incident to coming in contact with electric power wires. He saw and knew the purposes for which defendant's poles, braces, cross-arms, wires and other appliances were being used. He knew of the dangers incident to going among said wires and appliances. He did not request that the power be shut off. Knowing these facts, he not only voluntarily and deliberately went upon defendant's brace or cross-arm and among its wires, and placed himself in such position that it was practically impossible to avoid coming in contact with such wires, but he actually reached out and took hold of or placed his hand or arm upon one of the wires. Under such circumstances he was guilty of the grossest negligence, and the defendant may not be called upon to respond in damages for the inevitable results of such reckless conduct. Hector v. Boston Electric Light Co., 161 Mass. 558; Hickok v. Auburn Light, Heat & P. Co., 200 N.Y. 464; Chartier v. Barie Wool Combing Co., 229 Mass. 153; Allen v. Railroad, 115 Me. 361; Capital Gas & Electric Co. v. Davis, 138 Ky. 628; Junior v. Electric Light Power Co., 127 Mo. 79; Danville Street Car Co. v. Watkins, 97 Va. 713; Druse v. Pacific Power Co., 86 Wash. 519; Frauenthal v. Gaslight Co., 67 Mo.App. 1; Bathe v. Morehouse Stave & Mfg. Co., 199 Mo.App. 127; Edmunson v. Monongahela L. & P. Co., 223 Pa. St. 93; Clark v. Ry. Co., 127 Mo. 197, 213; Weller v. Railroad, 120 Mo. 635; Burge v. Railroad, 244 Mo. 76, 94; Laun v. Railroad, 216 Mo. 563, 578; Brady v. St. Joseph, 167 Mo.App. 423; Woodson v. St. Ry. Co., 224 Mo. 685.

W. B. Norris and Barney E. Reilly for respondent.

(1) The defendant having maintained a high tension electric wire without proper insulation at a place where mechanics working about the down-spout mentioned in the evidence were likely to come in contact with the wire, was liable for any injury caused by the condition of its wires. There is a distinction between a case where one handles an agency which is of itself dangerous and deadly to human life and a case where the agency in itself is not essentially dangerous and deadly, even as far as licensees or trespassers are concerned. Geisman v. Edison Electric Co., 173 Mo. 654, 674; Ryan v. Transit Co., 190 Mo. 621; Clark v. Railway Co., 234 Mo. 396; Winkelman v. Electric Co., 110 Mo.App. 184; Williams v. Fulton, 177 Mo.App. 177; Williams v. Gas & Electric Co., 274 Mo. 1. (2) The deceased, at the time he received the shock which caused his death, was upon the cross-arm fastened to the Excello Company's building, and to which was attached the defendant's wires, and if, under the terms of his employment, with his master and the Excello Mill Company, he was required to use the cross-arm in loosening the down-spout it then became the duty of the defendant to know that either the employees of the mill company or those who were authorized by the mill company to work in and about the down-spout would be required to come in close proximity to its wires and to use the cross-arm in attending to the duties of their employment, and that from such conditions the duty would arise on the part of the defendant to use every protection which was accessible to insulate its wires at that point and to use the utmost care to keep them so, and for personal injuries resulting therefrom it was liable in damages. Hickman v. Electric Light & Power Co., 226 S.W. 570; Young v. Waters-Pierce Oil Co., 185 Mo. 634; Ratliff v. Mexico Power Co., 203 S.W. 232; Downs v. Telephone Co., 161 Mo.App. 274; Goebel v. Electric Light & Power Co., 188 S.W. 1135; Day v. Light, Power & Ice Co., 136 Mo.App. 274; Hill v. Union Electric Co., 260 Mo. 43; Illingsworth v. Boston Electric Co., 161 Mass. 583, 25 L. R. A. 552; Wagner v. Brooklyn Heights Co., 74 N.Y.S. 809; Sprinkles v. Public Utility Co., 183 S.W. 1072; Von Trebra v. Gaslight Co., 209 Mo. 648. (3) The defendant's liability is not to be determined by the question whether the deceased was a trespasser or not. If the defendant had no reason to expect persons to be where the deceased was at the time he was killed it was not guilty of any negligence toward the deceased, not on the ground that the deceased was a trespasser, but because it breached no duty it owed him. But whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary prudence would recognize that if he did not use ordinary care in his own conduct with regard to these circumstances he might cause injury to the person or property of another, then a duty arises to use ordinary care to avoid such danger. The true doctrine is that a duty of care may by reason of the circumstances be a duty owing from the owner of property to one who is technically a trespasser upon it. Mahaney v. Independence, 183 S.W. 1117; Ennis v. Gray, 34 N.Y.S. 379, 382; Newark Electric Light & Power Co. v. Garden, 78 F. 74.

OPINION

Graves, J.

Plaintiff, Clara Choka, the widow of William Choka, brings this action for damages for the alleged negligent killing of her said husband, by the defendant. Defendant is a light and power company in the city of St. Joseph, and engaged in furnishing light and electric power to other business corporations, and among them the Excello Feed Milling Company. In the furnishing of electric power to this Milling Company defendant had poles upon which were strung wires which carried a high voltage of electric current. Near the northwest corner of the Milling Company's main building was situated a pole of the defendant, and this pole was braced by means of a wooden brace from the pole to the building. On this pole were strung these high tension wires. A fair conception of the situation can be gained by defendant's Exhibit No. 1, here reproduced.

[SEE ILLUSTRATION IN ORIGINAL]

This photograph shows a certain water-spout, and William Choka, then doing some repair work, as a tinner, for the Milling Company, was sent to do some work in and about this water-spout. Whilst so engaged he came in contact with the wires of defendant, and was killed. Defective insulation of the wires is the charge in the petition.

The defendant's answer is as follows:

"The defendant for its second amended answer to plaintiff's petition filed in the above cause admits that it is a corporation; that it maintained wires charged with electricity upon the pole and arms thereof described in plaintiff's petition, and that William Choka, while upon said pole, or the arms thereof, fell across defendant's wires, and that when removed therefrom he was dead, but the defendant denies each and every other allegation in said petition contained.

"The defendant further states that the said William Choka carelessly and negligently placed a ladder against one of the cross-arms on the pole described in plaintiff's petition and that he carelessly and negligently climbed upon said ladder and went upon one of defendant's cross-arms upon said pole and among the wires upon said pole, thereby carelessly, negligently and unnecessarily placing himself in a position where he would be likely to come in contact with said wires; that the said William Choka knew, or in the exercise of ordinary care would have known, that said wires were charged with deadly currents of electricity, and that should he come in contact therewith he would be in danger of sustaining serious and probably fatal injuries; that if the said William Choka did come in contact with one of said wires his own negligence contributed directly to cause his coming in contact therewith and all injuries resulting therefrom.

"The defendant further states that the pole and arms described in evidence were the property of the defendant, and that they were maintained for the purpose of carrying its wires used in the distribution of electric current; that William Choka was not permitted to be upon said pole or cross-arms, or the wires attached thereto; that...