Coleman v. North Kansas City Elec. Co.

• Decision Date: 14 January 1957
• Docket Number: No. 44673,No. 2,44673,2
• Citation: 298 S.W.2d 362
• Parties: Grant COLEMAN, Respondent, v. NORTH KANSAS CITY ELECTRIC COMPANY, a corporation, Appellant
• Court: Missouri Supreme Court

Page 362

298 S.W.2d 362

Grant COLEMAN, Respondent, v. NORTH KANSAS CITY ELECTRIC COMPANY, a corporation, Appellant.

No. 44673.

Supreme Court of Missouri, Division No. 2.

Jan. 14, 1957.

Motion for Rehearing or to Transfer to Court en Banc Denied

Feb. 11, 1957.

David R. Hardy, Lane D. Bauer, Sam B. Sebree, John S. Marley, Sebree, Shook, Hardy & Ottman, Kansas City, Alan Wherritt, Wherritt & Turpin, Liberty, John J. Alder, Kansas City, for appellant.

John W. Mitchell, Mitchell & Meise, Kansas City, James Simrall, Jr., Simrall & Simrall, Liberty, Paul C. Sprinkle, Sprinkle, Knowles & Carter, Kansas City, of counsel, for respondent.

LEEDY, Judge.

Action for damages for personal injuries arising out of a casualty which occurred while the plaintiff, Grant Coleman, was in the employ of defendant corporation, North Kansas City Electric Company, which injuries were allegedly sustained as the result of the negligence of the employer. Coleman had rejected the Workmen's Compensation Act, Chapter 287, RSMo and V.A.M.S. Upon a trial in the Clay Circuit Court of this, his common law action, verdict and judgment went in his favor in the sum of $65,000, and defendant-employer appealed.

Plaintiff is an electrician, and at the time he was injured was 35 years of age. Defendant is a corporation engaged in the business of electrical repair and installation work. It is owned in large part and operated by members of plaintiff's wife's family, her father and brother having been in the active management of the company at the time of the accident. One of its principal customers or retainers is the Staley Milling Company, a large concern located in North Kansas City. Plaintiff was injured while doing electrical work in and upon a substation at one of the Staley mills. He submitted his case under instructions which hypothesized negligence on the part of defendant in failing to warn him of the danger of the electricity, and in failing to cut off the electricity, or have the same cut off while plaintiff was working. Defendant contends that the evidence fails to show any actionable negligence on its part, but, if it does, then under the evidence plaintiff was guilty of contributory negligence as a matter of law, and further than he assumed the risk of injury from the electricity as a matter of law, as alleged in its answer.

The outdoor substation in which plaintiff was working at the time in question is a fenced enclosure approximately 25X30 feet with the long way north and south. Within this enclosure is a tall superstructure or steel frame (exact dimensions not shown) which supports the 13,200 volt primary lines or conductors overhead and appurtenances connected with such an installation. Beneath the steel frame were two concrete platforms (both running were and west), and on one of these were three hooked-up or alive and functioning transformers (hereinafter referred to as the old transformers); on the other platform were three new transformers which had not yet been energized or connected. The old transformers were about 8 feet from the north end of the enclosure, and the platform on which they rested was 15-18 inches above the level of the ground. The east transformer on this platform was 4-5 feet from the east fence, and the west transformer was 1 1/2-2 feet from the fence on the west. The height of these old transformers, including platform, was 6-7 feet. They were hooked up on both their primary and secondary sides, the primary or high voltage line in each instance being connected to the south side, and the secondaries connected on the north side of the old transformers.

The new transformers, resting on the second concrete platform, were 3 1/2-4 feet south of, and parallel to, the bank of the three old transformers above mentioned. Their height was 6 1/2-7 feet from the floor of the platform, which was itself 4-6 inches above ground level. The diameter of the new transformers was 2-2 1/2 feet at the top, and they were 12-15 inches higher than the old ones, and about 6 inches greater in diameter. Each of the old transformers had a primary line of 13,200 volts coming into it. A primary line was connected to the east old transformer on its south side, the line going out of the top of the transformer, and ran somewhat to the south under the south edge of a catwalk on top of the old transformers at about a 45 degree angle, then fastened to a knife switch which was mounted on a cross member at a 45 degree angle, and from the knife switch, which was on an insulator, fed straight up to the top of the station, or straight toward the top of the station. The knife switch was about 4 feet above the level of the new transformers, at their north edge, and somewhere near the middle of the distance between the east and middle transformers. The primary line ran almost straight up, as stated. It was about 1-1 1/2 feet north of the north edge of the new east transformer, and approximately on a line with the west edge of said transformer.

Before going to the job on which he was injured, plaintiff and another electrician, John Lingo, had been working together on an electrical construction job for defendant at the Jones and Laughlin plant in Kansas City, Kansas, which had shut down because of a strike by some other craft. On the day before the accident they had reported back to defendant's shop for assignment to other work, and were directed to go to the Staley mill, where they reported to Jake Flanary, an employee and general foreman of defendant who was in charge of all electrical work at the two Staley mills. Flanary was also the steward for the Local Union to which plaintiff belonged, and he and plaintiff carried precisely the same Union classification card. They arrived at the plant about 10 o'clock A.M., and Flanary got the key to the substation, took the two workmen inside and outlined to them the work to be done. Flanary remained about 10 or 15 minutes. Among other work thus directed was that of making up and installing copper bus bars on the secondary side of the new transformers and connecting them to each other, but not with the current, and also the stringing of a delta bar or cable between the two sides of the substation. He did not tell them what to use or how to use it, but left it strictly up to them to select and procure the equipment needed. The necessary materials were not at the substation but were at the shop of the nearby No. 2 Staley mill, to which place Lingo and plaintiff went and obtained the materials, as well as two ladders. They worked in and about the substation (in making up and installing the copper bus bars for the new transformers) during the remainder of the first day and until the afternoon of the next, without incident.

At the time of the casualty plaintiff and Lingo were engaged in installing the delta bar or cable which was to be attached to the frame of the substantion at the east and west sides thereof, 12 or 14 feet above the surface of the ground, and 7-7 1/2 feet south of the nearest primary line. Holes were bored in the steel frame on both the east and west sides, the cable cut and insulators put on both ends. Fastening was to be accomplished by means of putting eye bolts through the holes with nut fasteners on the other side. They fastened the cable to the east part of the frame first, and then the west, when it was discovered that the eye bolts did not have sufficient threads to permit the slack in the cable to be taken out by tightening the bolts. Flanary had directed that the delta bar or cable be tight and neat looking. The two workmen then decided to remove the slack by the use of a block and tackle, which they obtained at the shop at the No. 2 mill. Returning to the substation with the block and tackle, they fastened one end to one side of the steel framework and the other to the free end of the delta bar. In an effort to tighten the delta bar they pulled on the rope in the block and tackle from the ground, standing in the open area south of the new transformers under the delta bar or cable and somewhat to the east of the west insulator on the delta bar. From this position the rope was not long enough to permit pulling from a point on the ground much farther to the east. The pull they made proved to be too much downward, and so they were unsuccessful in tightening the cable from this position. Plaintiff then went to the east side of the substation, as he said, 'in order to get a straight pull directly back on the cable,' got up on a ladder and stepped off of it onto the east new transformer, having first looked up from the ground and knowing that by getting up on the transformer he would be 3-4 feet away from the 13,200 volt primary line, he nevertheless felt 'reasonably certain' that he had room to stand on the transformer. Plaintiff testified that he walked up the ladder and 'stepped off to the transformer, turned, set myself about where I figured that I would need to be to make the pull, turned and stooped and reached to John [Lingo], who had stepped up a step or two on the ladder to hand me the rope, I reached down to get that rope. From there on I couldn't tell you.' Plaintiff remembered nothing of what happened thereafter until waking up in the hospital. He testified on cross-examination that he did not attempt to pull on the block and tackle from the ladder, and never gave a thought to securing an additional piece of rope so that he could pull it from the ground; that after he left the ground he never looked to see how close he actually was to the nearest high voltage line, and never looked at the high voltage line after getting on the transformer; after he climbed onto the transformer he faced to the southwest, and then turned and stooped to get the rope from Lingo, who was standing on the ladder; he twisted around to his left, took the rope from Lingo in his right hand, and started to turn back and straighten up, but did not remember reaching a full standing position. His last...