Cope v. Kansas Power & Light Co.

• Decision Date: 11 April 1964
• Docket Number: No. 43557,43557
• Parties: Harold L. COPE, Appellant, v. The KANSAS POWER & LIGHT COMPANY, Appellee.
• Court: Kansas Supreme Court

Page 107

391 P.2d 107

192 Kan. 755

Harold L. COPE, Appellant, v. The KANSAS POWER & LIGHT COMPANY, Appellee.

No. 43557.

Supreme Court of Kansas.

April 11, 1964.

Rehearing Denied May 19, 1964.

Syllabus by the Court

The record in an action to recover damages for injuries sustained when the plaintiff came in contract with defendant's 7200-volt uninsulated transmission line, is examined, and as more fully set forth in the opinion, it is held: The trial court did not err (1) in refusing to submit the question of defendant's alleged gross and wanton conduct to the jury, and (2) in refusing to give certain instructions requested by the plaintiff. It is further held: Instruction No. 13 is disapproved, but the giving of the instruction, under the facts and circumstances, did not result in prejudicial error, or prevent the plaintiff from having a fair trial.

Robert B. Wareheim and M. J. Carpenter, Topeka, argued the cause, and George E. McCullough, W. L. Parker, Jr., and Reginald LaBunker, Topeka, were with them on the briefs for appellant.

Charles S. Fisher, Jr., Topeka, argued the cause, and O. B. Eidson, Philip H. Lewis, James W. Porter, Peter F. Caldwell, William G. Haynes and Roscoe E. Long, Topeka, were with him on the briefs for appellee.

FATZER, Justice.

This was an action to recover damages for personal injuries sustained by the plaintiff who was burned by electric shock and severely and permanently injured on July 1, 1961, when he came in contact with the defendant's 7200-volt uninsulated transmission line. The action was tried to a jury which answered special questions and returned a general verdict in favor of the defendant. The plaintiff has appealed.

The plaintiff's petition contained two causes of action. The factual allegations of the petition are not here set forth since the plaintiff's evidence which tended to support them is hereafter summarized. Reduced to an essential minimum, the first cause of action alleged that the defendant was careless and negligent in the following particulars: (1) constructing and maintaining its transmission line at a height below a safe height under the circumstances when it knew, or in the exercise of due care should have known, that construction work was being carried on in the immediate area; (2) failing to insulate its two electric wires for the protection of workmen and others in the area; (3) failing to inspect the area to determine the condition of its installation when it knew of the existence of construction work in close proximity; (4) failing to isolate, that is, raise or move the dangerous wires out of proximity to the work area when it knew that workmen were in daily use of the area; (5) failing to de-energize the dangerous wires, and (6) failing to warn construction workers and others lawfully in the area of the dangerous condition of the installation.

The plaintiff's second cause of action incorporated pertinent allegations of the first cause of action, and alleged the defendant committed extremely gross and wanton conduct by its failure to insulate, inspect, isolate or de-energize its installations, or warn those lawfully in the area of the extreme hazardousness and dangerousness involved in working in the area. Allegations of the very serious injuries and the dreadful permanent disfigurement sustained by plaintiff, the physical pain and mental anguish which he underwent and the period of his hospitalization will not be detailed. The prayer was that the plaintiff recover both actual and punitive damages.

Issues were formed by defendant's general denial and allegations of plaintiff's contributory negligence and wanton conduct in seven specific instances, and plaintiff's reply.

The trial commenced on January 7, 1963, and the evidence was completed on January 10, 1963. At the close of court on that day, a conference was held in chambers to discuss instructions and final amendments to the pleadings. Certain requested instructions of both parties were denied over their objections, and, as hereafter noted, the trial court struck plaintiff's second cause of action concerning gross and wanton negligence. On the following morning, January 11, 1963, before court convened, another conference was held in chambers at which time the trial court announced that it was adding instruction No. 13 which it denied the evening before. The plaintiff strenuously objected to the giving of the instruction.

The case was submitted to the jury on that date and its general verdict and answers to special questions read:

'GENERAL VERDICT

'We the jury duly impaneled do find for the defendant.

'SPECIAL QUESTIONS

'1. Do you find the defendant company guilty of any negligence which proximately caused the injuries of plaintiff?

'Answer: Yes.

'2. If your answer to Number 1 is in the affirmative, state of what such negligence consisted.

'Answer: Power line not high enough for construction work.

'3. Do you find that the plaintiff Cope was guilty of any negligence which was the proximate cause or a contributing proximate cause of his injuries?

'Answer: Yes.

'4. If your answer to the foregoing is in the affirmative, state of what such negligence consisted.

'Answer: Did not exercise ordinary care for his own safety in proximity to electricity.'

The plaintiff's evidence is summarized: On the afternoon of his injury, July 1, 1961, plaintiff was an employee of the Reno Construction Company which had a contract with the State Highway Department to perform the necessary grading for the relocation of Highway K 213 north of Manhattan and a short distance west of Tuttle Creek Dam. At the point where the accident occurred, the highway ran in an easterly and westerly direction. Defendant's 7200-volt line ran across the highway generally in a northerly and southerly direction and the area immediately under the transmission line at the point where plaintiff was injured was a deep ravine. The installation was of relative long standing, and in April, 1961, the defendant, being advised of the proposed construction, attempted to provide additional clearance across the highway by changing the installation. The defendant's line pole immediately south of the proposed highway was not changed, but the 40-foot pole north of the proposed highway in the ravine was replaced with a 45-foot pole. The Southwestern Bell Telephone Company, through arrangements with the defendant, attached its line to the defendant's pole some three feet below the defendant's lowest wire.

Plaintiff was a member of the rock crew of the construction company, which was made up of heavy construction workers such as truck drivers, bulldozer operators, crane operators and the like. To provide a roadbed for the highway in the area below defendant's line, the crew had to cut down high ground to the east of the line by the use of two Northwest 80-D shovels, and load the rock and dirt into large dump trucks known as Athey wagons. The rock and dirt was hauled and dumped into the ravine area and bulldozed level. The procedure was to raise the fill two feet at a time all the way across the ravine, and start the whole process over again. As the level of the fill rose, the power line came into closer proximity with the ground level.

About two weeks before plaintiff's accident, the proximity of the power line to the level of the fill which was then near completion, became a matter of concern to those in the area who worked under and around it. About a week before plaintiff's accident, and while he was driving an Athey wagon on the fill, he knocked down the telephone wire which was strung on defendant's poles. It was never actually necessary to drive the Athey wagons under the power line in full dump position since the dirt and rock was deposited on either side of the line and then leveled by bulldozers.

There was evidence that the state highway engineer for the project and the foreman of the construction company notified the defendant company regarding the imminent danger of the power line installation. The foreman testified he called defendant's Manhattan office to request that something be done about the power line; that he spoke to a female voice which assured him that the proper parties would be notified. The highway engineer testified he could not remember calling the company about this particular line but that it was his usual procedure in cases of this type to do so. The defendant's employees at the Manhattan office denied receiving any telephone call or notification of the offending power line by telephone.

The telephone company received a complaint about the lack of telephone service and its engineer and the defendant's field engineer visited the work area on June 29, 1961, two days before plaintiff's accident. At the time of that visit, two shovels were being operated east of the power line and Athey wagons were being operated back and forth along the power line in a load position and bulldozers were leveling the dirt under the line. The purpose of the defendant field engineer's visit to the site was to observe the situation and determine what could be done in cooperation with the telephone company to raise the defendant's poles so that the telephone company could obtain the required 19 feet of clearance when replacing the knocked down telephone wire.

On July 1, 1961, it was necessary to move the shovels westward on the unfinished highway beyond the power line. As the first shovel neared the power line it became apparent that the line was too low to admit passage. The operator turned it around and began backing under the line. At that time the boom had been lowered to about the height of the gantry, although in ten or fifteen minutes time it could have been lowered to the height of the bucket, and the gantry could have been lowered in an hour or an hour and a half. However, the evidence was undisputed that in moving a shovel from one place to another on a job, the gantry was never lowered. There was evidence that had...