Clary v. United Telephone Co.

Decision Date20 April 1984
Docket NumberNos. 13236,13348,s. 13236
Citation670 S.W.2d 936
PartiesDonald D. CLARY and Evelyn Clary, Plaintiffs-Appellants, v. UNITED TELEPHONE COMPANY and Missouri Public Service Company, Defendants-Respondents.
CourtMissouri Court of Appeals

William H. McDonald, James B. Condry, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, for plaintiffs-appellants.

Thomas N. Sterchi, Timothy S. Frets, Baker & Sterchi, Kansas City, for defendant-respondent United Telephone Co.

Thomas W. Wagstaff, Allan V. Hallquist, Cecelia G. Baty, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, for defendant-respondent Missouri Public Service Co.

MAUS, Presiding Judge.

By this action, plaintiffs Donald D. Clary (Clary) and Evelyn Clary, his wife, seek to recover for personal injuries received by Clary by reason of electrical shock. The injuries occurred while Clary was helping Frank Rice load and move hay purchased from James H. Raffurty (Raffurty) and James P. Raffurty. The injuries were received when Clary was on top of the load of hay and the tractor trailer was in the process of going through a gate or gap under telephone lines and electrical distribution lines. The telephone lines were the property of United Telephone Company (United). The electrical distribution lines were the property of Missouri Public Service Company (MPS). Rice, the Raffurtys, United and MPS are the defendants in this action. Upon the basis of contributory negligence, the trial court sustained motions for summary judgment in favor of United and MPS against Donald D. Clary and then against Evelyn Clary. Those orders were made final for the purpose of appeal. Rule 81.06. Each plaintiff has appealed. The appeals have been consolidated.

The plaintiffs have filed a motion to reverse those judgments upon the basis of Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983). That case adopted the concept of comparative negligence and apparently abolished the defense of contributory negligence. A consideration of the resulting status of the doctrine of contributory negligence and the related doctrine of proximate cause which are inexorably intertwined in this appeal is not necessary. In general, the effect of that case was withheld until after January 31, 1984. Gustafson v. Benda, supra. The summary judgments in question were entered long before that date. The renditions of those summary judgments where trials within the meaning of Gustafson. Bell v. Garcia, 639 S.W.2d 185 (Mo.App.1982). There are no circumstances calling for the earlier application of Gustafson. See Hudson v. Carr, 668 S.W.2d 68, Mo. banc 1984. The plaintiffs' motion is overruled. Their appeals will be considered upon the basis of the law prior to Gustafson.

The plaintiffs alleged numerous acts of negligence on the part of United and MPS. These acts included failure to maintain their lines at a proper height above the ground. For the purpose of these appeals, United and MPS each concede there was evidentiary material before the court to establish each was negligent. However, they contend that the evidentiary material establishes that Clary was contributorily negligent as a matter of law.

The rules for considering whether or not the evidentiary material supports the summary judgments are well established. Parmer v. Bean, 636 S.W.2d 691 (Mo.App.1982). It is appropriate to observe the burden was upon United and MPS to show by unassailable proof they were entitled to the summary judgments as a matter of law. In determining if they have met that burden, this court must consider the evidentiary material in a light most favorable to the plaintiffs and accord them the benefit of any doubt. Cahill v. Sho-Me Power Corp., 656 S.W.2d 327 (Mo.App.1983).

This court is, and the trial court was, faced with evidentiary material in excess of 900 pages. The deposition of Clary comprises 442 pages. He was separately examined by four different lawyers, principally by counsel for the respondents. He was subjected to intolerable, repetitive and argumentative questioning. Those 442 pages contain many garrulous, confusing and in part conflicting answers. It is difficult to sift the evidentiary material to glean the facts upon the basis of which this court must determine the plaintiffs' appeals. The briefs have not done so.

As noted, all factual issues arising from conflicting evidence in that mass of material must be resolved in favor of the plaintiffs. Cahill v. Sho-Me Power Corp., supra. To determine this appeal upon the required basis, with the advantage of time not afforded the trial court, this court has carefully and laboriously analyzed the voluminous record. Under the applicable rules of review, a summary of the determinative facts is as follows.

Rice arranged to buy a tractor trailer load of hay from the Raffurtys. Upon a trade-work basis, Clary agreed to help him. On the day in question, Rice, with Clary along, drove his tractor-trailer unit to the Raffurtys' farm to pick up the hay.

At the farm, the normal access to the barn where the hay was stored was by a lane. However, the lane was too narrow and crooked for use by the tractor trailer. The only access for the tractor trailer was through a gate or gap under the lines of United and MPS. Those lines were on the same poles. The two telephone wires were mounted on the poles approximately 12 feet above the ground. Those lines sagged considerably between the poles. United had been asked to raise those lines, but failed to do so. The energized electrical wire and neutral wire of MPS were mounted on opposite ends of a 4-foot crossarm, approximately 16 feet above the ground.

Upon arriving at the Raffurty house, Rice and Clary were met by Raffurty and his son. Raffurty, with Clary as a passenger, drove his pickup to the barn by the route of the lane. Rice, accompanied and directed by the son, drove the tractor trailer along the route that passed under the lines in question. The telephone lines sagged so low they had to be lifted by a two-by-four over the exhaust stack.

When the hay was loaded, there was a general discussion among Clary, Rice and the two Raffurtys that in leaving the premises, the tractor trailer would encounter difficulty in passing under electric and telephone lines. The first was a single electric service line extending between two barns. The second would be the telephone and electric lines described above. It was agreed that Clary would remain on top of the hay to assist in the tractor trailer clearing these lines. When the tractor trailer reached the service electric line, that line caught on a corner of the hay. Clary, by means of a board, lifted the electric line. He stepped over it and then walked it to the rear of the trailer.

The tractor trailer then moved to the vicinity of the telephone and electric lines. It stopped with the cab approximately under those lines. The motor of the diesel tractor was left running. From the top of the load, Clary sighted the electric lines and saw they would clear the load by approximately 3 feet. There was then a general discussion concerning the telephone lines. It was agreed those lines had to be cut or in some fashion supported so the tractor trailer could pass underneath them. An understanding was reached that Raffurty would raise the telephone lines so that Clary could grasp them. It was impossible to raise those lines by a two-by-four for the hay to clear them because the board was not long enough and the lines were too heavy to be so supported. After the lines were raised and grasped by Clary, he would attempt to walk and stretch the lines so they could be dropped off the back of the load. As Clary testified, that would be "a heck of a stretch" but he would try to do so. If he was unable to do so, the tractor trailer would have to move in order for the load to clear the telephone lines. But, it was understood it was not to be moved until it was determined that it could be done with safety for Clary. If Clary could not so stretch the lines, the tractor trailer was to be moved only when Clary had signaled.

Clary, on his knees, leaned down from the front of the top of the load. From this position, he was able to grasp the telephone lines when they were raised on the board by Raffurty. He lifted them, straightened and started walking backwards. When walking backwards, approaching the rear of the load, it occurred to Clary that he must step over the telephone lines. As he was doing so, without any signal from or notice to Clary, the tractor trailer was moved forward. The motor had been running and the hay was soft. Clary did not realize it was moving forward. He was dragged into the electric lines. Even after this occurred, and smoke was coming from his body and clothing, the tractor trailer continued to move forward. It stopped 20 or 30 feet from the electric and telephone lines. Clary was entangled in a line.

As stated, United and MPS concede there is evidence of their negligence. But, they contend Clary's "voluntary exposure to a hazard known and appreciated" bars his recovery. Calderone v. St. Joseph Light & Power Co., 557 S.W.2d 658, 665 (Mo.App.1977). To support their contention, those defendants cite evidence that there was no plan the tractor trailer would not move until Clary signaled or was off the load. They argue the inherent improbability of the Clarys' position. They presented much the same arguments to the trial court. Those arguments are persuasive. But, the summary judgments cannot be sustained upon the basis of the most probable of conflicting evidence. This court must consider the appeals upon the basis of the facts as outlined above. Perkins v. Schicker, 641 S.W.2d 432 (Mo.App.1982).

It is established Clary knew of the presence of the telephone lines and the electric lines and the danger from them. Therefore, United and MPS argue that because he got on top of the load and voluntarily exposed himself to those lines, he is...

To continue reading

Request your trial
9 cases
  • Estate of Harvey
    • United States
    • Missouri Court of Appeals
    • September 26, 1989
    ...Guaranty Ass'n, 731 S.W.2d 527, 529 (Mo.App.1987); Hill v. Air Shields, Inc., 721 S.W.2d 112, 115 (Mo.App.1986); Clary v. United Telephone Co., 670 S.W.2d 936, 940 (Mo.App.1984). We review the evidence in the light most favorable to the party against whom the summary judgment was granted. S......
  • Ohlendorf v. Feinstein
    • United States
    • Missouri Court of Appeals
    • September 10, 1985
  • Pyle v. Prairie Farms Dairy, Inc.
    • United States
    • Missouri Court of Appeals
    • September 11, 1989
    ...the injury appears to be the reasonable and probable consequence of the act or omission of the defendant. Clary v. United Telephone Co., 670 S.W.2d 936, 941 (Mo.App.1984). From this and other similar cases, it is clear that the law in Missouri is that the question is whether the injury or d......
  • Washburn v. Grundy Elec. Co-op.
    • United States
    • Missouri Court of Appeals
    • February 26, 1991
    ...line. The court affirmed the jury's determination that defendant electric company was liable for negligence. In Clary v. United Tel. Co., 670 S.W.2d 936, 940 (Mo.App.1984), the Court stated that just because a person has knowledge of the danger of a power line and knows that one is there do......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT