Clark v. Kansas City Light & Power Co.

• Decision Date: 26 June 1920
• Docket Number: No. 13662.,13662.
• Citation: 223 S.W. 984
• Court: Missouri Court of Appeals
• Parties: CLARK v. KANSAS CITY LIGHT & POWER CO.

223 S.W. 984

CLARK v. KANSAS CITY LIGHT & POWER CO.

No. 13662.

Kansas City Court of Appeals. Missouri.

June 26, 1920.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

"Not to be officially published."

Action by Minnie A. Clark against the Kansas City Light & Power Company. From judgment for plaintiff, defendant appeals. Judgment reversed, and cause remanded.

John H. Lucas and Wm. C. Lucas, both of Kansas City, for appellant.

Watson, Gage & Ess and G. C. Weatherby, all of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff's husband, working as a second-class lineman, was killed on August 15, 1916, through coming in contact with one of defendant's electric wires. She brought this suit and recovered a verdict and judgment in the sum of $3,500, to review which this appeal was taken by defendant.

From Thirty-First street south to Linwood boulevard, in Kansas City, on the property line in the rear of the lots facing east on Agnes street and west on Benton boulevard, the defendant had a line of poles 30 feet high, on which were two primary wires and two secondary wires. (If we understand it correctly, primary wires are wires that carry the high-voltage current out from the power or generating station, and the secondary wires carry the current for distribution and use after it has been reduced or "stepped down" by means of transformers or other electrical apparatus.) On a line with, but between, the above-mentioned poles, the Kansas City Home Telephone Company maintained a line of telephone poles 35 feet high. An agreement had been entered into between these two companies whereby joint use was to be made of the telephone company's line of poles at the place above stated, and a gang of defendant's employés were engaged in placing lines of secondary wires on the top brackets of said telephone poles. The two primary wires on defendant's poles, which were lower, carried a current of 2;300 volts of electricity, exceedingly dangerous and deadly if it escaped from the wire and passed through the human frame having a contact or line of connection with the ground. As the defendant's electric poles alternated with the telephone poles along the above-named property line, the wires running from one of defendant's poles to the other passed the intervening telephone pole, and at the telephone pole where deceased lost his life, as hereinafter related, the two primary wires of defendant passed on the east and west sides of the intervening telephone pole and at a distance of about 8 inches therefrom. They were not fastened to the telephone pole, but went past it swinging loose and sagging in the air on each side, as above stated. They were thus about 5 feet lower than the top of the telephone pole, where the crew of defendant's employés were installing thereon the secondary wires. This telephone pole was about 14 inches in diameter at the ground and tapered to a diameter of about 8 inches at the top. It was located about 300 feet south of Thirty-First street and in the rear of 3125 Benton boulevard. There were a number of other wires attached to this pole which interfered with a lineman climbing the pole to the top. On the east side of said pole were two telephone messenger cables connecting with the cable box, which was on the north side of the pole about 22 feet from the ground. From the small brackets where the secondary wires were attached, two electric light service wires ran from the pole in a westerly direction and one in a southeasterly direction. A half dozen or more telephone service wires radiated from this pole to the south and east, and the telephone cables were about 3½ feet below the defendant's primary wires, which went past the pole on the east and west sides thereof and unattached, as above stated.

The deceased's foreman, Roberson, ordered him to climb this pole and connect up a ground wire with the new secondary wires the crew were engaged in installing. As stated, these new secondary wires were at the top of the pole, and, in order to do what he had been directed to do, it was necessary for deceased to go above the primary wires to the top of the pole.

Deceased had on a body belt and was wearing his climbing spurs. On the outside of the belt around him were a number of tools, and snapped into his body belt was his climbing belt. He wore a pair of leather gloves. In obedience to the order he had received, deceased started up the pole. Plaintiff had no eyewitness to what occurred at the moment deceased was on the pole and received the shock. Defendant's witness Foreman Roberson says that after he told deceased what was wanted done the latter started up the pole and he (Roberson) turned away, going north toward the other pole; that in a moment he heard a kind of "simmering noise" like electricity makes when there is an imperfect contact, and he turned around in time to see deceased strike the ground on the east side of the pole and about 10 feet therefrom.

Defendant's witness Ida Scott, a negress hanging out clothes in the adjoining back yard, was the only eyewitness to what occurred on the pole. She looked at deceased as he went up the east side of the pole. He "got between two wires that seemed to pass on each side of the pole." His head was "up in the little wires." He reached out and "all at once he jumped that way (indicating) and just as he jumped he went right down." "When I seen him he had just got up there and reached out, and then he just tumbled right off. It looked like he lost his holt or something. I don't know what he was aiming to do, but it looked like he grabbed at something but didn't get it and he fell backwards." On cross-examination she said there was a little shed or building they put tools in about a foot or so east of the pole; that she saw him going up the pole and his feet were above the cable wire and his head was up among the little wires; that she then stooped to pick up a piece of laundry, and when she arose he was between the black wire and the pole and reached out as if in an effort to reach something and "he fell right back and struck the building and went down."

Plaintiff's witness McCuan, an electrician who was working near, did not see deceased start to fall, but saw him "right after he fell." He said he saw the primary wire on the east side of the pole shaking, and that deceased fell on the east side of the pole about 8 feet therefrom. All efforts to revive him, either with the pulmotor or otherwise, were unavailing. He was 35 years old, a man of medium size, weighed 140 pounds, and was about 5 feet 10 inches high. According to plaintiff's evidence there was not over an 8-inch clearance between the side of the post and the primary wire on either side. According to defendant's evidence the clearance was 18 inches or more. There was a burn on one of deceased's arms and one on the calf of one of his legs—a narrow burn having the peculiar appearance of a burn made by electricity at the points of contact in the 1 course of its escape from a wire to the ground.

There was evidence to the effect that the insulation on the primary wires, at the points where they passed the pole deceased climbed, was worn and defective, being off the wires for about a foot. There was evidence that, if a man whose body was grounded came in contact with a wire carrying 2,300 volts, a deadly current would pass through his body. Defendant's witness the foreman testified that it would not always do so, but that whether it did so would depend on circumstances; that he would never get a serious shock from the secondary wires unless he took hold of both bare wires at the same time and was grounded. The defendant read in evidence the testimony of the foreman given at the coroner's inquest, and it appears from this that the foreman there testified that whether deceased would have been killed, even if the primary wires were insulated, would depend upon the man; if his clothing was dry he would not; but that, if one were working in wet clothes, sometimes such a current would reach out after him, but that, if the wire had been properly insulated, deceased would have had more protection. The foreman testified at the inquest that there "seemed to be a little bit of the insulation gone," but whether it was worn clear through he did not know; they were afterwards taken down by his men and he did not examine the wires. At the trial he testified the wires "were in good shape, as far as I seen"; that as far as he could see the insulation was "in good fair condition for wires that had been hanging in the air. They were weather beaten, of course, but they were in fair condition — You might say in good condition." When confronted with his statement at the coroner's inquest that a little of the insulation had seemed to be gone, he answered, "Well, it is down there in print and what can you make of it?" The record discloses that the primary wires were afterwards taken down, but they were `not offered in evidence, and the reason they were not taken down before the work of transferring the wires from defendant's line of poles was so as not to interrupt the service to patrons in that neighborhood while the work was being done. It was also in evidence that it was the foreman's duty to inspect the wires for defective insulation, in protection of the men working under him. Defendant had evidence that deceased was on this pole the day before, and it is claimed that the foreman, in the immediate presence and hearing of deceased, warned the men against the primary wires. But there is no evidence that he inspected the wires or that he told deceased or any one else they were defectively insulated. The only warning he claims to have given deceased is contained in these words: "I told him to be careful with those wires; they were hot; those primary wires."

Plaintiff began working for defendant in February, 1913, as a ground man. He had no previous experience in electrical work. In May, 1916, he was made...