Edwards v. The City of Kansas City and The Southwestern Bell Telephone Company

• Decision Date: 12 April 1919
• Docket Number: 22,242
• Citation: 104 Kan. 684,180 P. 271
• Parties: HATTIE L. EDWARDS, Appellee, v. THE CITY OF KANSAS CITY and THE SOUTHWESTERN BELL TELEPHONE COMPANY, Appellants
• Court: Kansas Supreme Court

180 P. 271

104 Kan. 684

HATTIE L. EDWARDS, Appellee, v. THE CITY OF KANSAS CITY and THE SOUTHWESTERN BELL TELEPHONE COMPANY, Appellants

No. 22,242

Supreme Court of Kansas

April 12, 1919

Decided January, 1919.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment affirmed and reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Uninsulated Electric Wires--Proximity to Telephone Wires--Death of Boy--Telephone Company Not Liable. A telephone company is not responsible in damages for the death of a thirteen-year-old trespasser who climbs one of the company's poles, equipped with steps for climbing, and is killed at the top of the pole by coming in contact with an overhead, uninsulated electric-light wire placed, maintained, and operated by the city in which the company conducts its business, but over which electric-light wire the company has no control.

2. NEGLIGENCE--Pleadings--Uninsulated Electric Wires--Death of Boy--Petition States Cause of Action. Among other things, the petition alleges that a telephone pole, equipped with steps for climbing, was situated in the street of a city; that the city knew, or by the exercise of proper diligence should have known, that boys were in the habit of climbing the pole; that a boy who had climbed to the top of the pole was there killed by coming in contact with an overhead electric-light wire which had been negligently placed, maintained, and operated by the defendant city; and that the city had negligently permitted the electric-light wire to become uninsulated. Held, that the petition states a cause of action against the city.

3. SAME. The petition states a cause of action, not because it alleges that the telephone pole was an attractive nuisance, but because it alleges an act of negligence on the part of the city, and alleges that the city knew, or by the exercise of proper diligence should have known, that boys were in the habit of climbing the pole.

E. S. McAnany, M. L. Alden, T. M. Van Cleave, C. Angevine, all of Kansas City, D. E. Palmer, and J. W. Gleed, both of Topeka, for the appellants.

L. O. Carter, of Kansas City, for the appellee.

OPINION

MARSHALL, J.:

The plaintiff commenced this action to recover damages for the death of her son, Clarence M. Edwards. Judgment was rendered for the plaintiff, overruling the demurrers to her petition, filed by each of the defendants, who separately appeal.

Among other matters, the petition in substance alleges that the Southwestern Bell Telephone Company owned and operated a telephone system in Kansas City, Kan., and had a line of telephone wires on poles on the west side of Eighteenth street near the intersection of Spring street; that at that place the telephone company maintained a telephone pole twenty or twenty-five feet high on which steps were nailed for the convenience of its employees in climbing the pole; that the steps commenced about eighteen inches above the ground, were about eighteen inches apart, and extended to the cross arms holding the telephone wires; that the city maintained an electric-light wire which extended from a pole on the east side of Eighteenth street across the telephone wires, to the west side of that street; that the electric-light wire was about six inches above the telephone pole; that the insulation on the electric-light wire had become defective and rotten; and that the condition of that wire exposed to danger those persons who might be upon the telephone pole or in close proximity to the electric-light wire.

The petition further alleges:

"That by reason and on account of the fact of the carelessness and negligence and improper construction and maintenance of said telephone pole and said electric-light wire in such defective and unsafe condition, and being in close proximity to said telephone pole, the said defendants and each of them were careless and negligent in this, to wit:

"That said telephone pole was an attractive nuisance, and was knowingly built, constructed, maintained and kept in such a manner and way as to become and be attractive to children and particularly to boys of the age, habits and sportive conduct of boys of the age of the deceased, all of which facts, habits and instincts of boys and particularly of the deceased under the circumstances, the defendants and each and all of them had full notice and knowledge, and that they and each of them were careless and negligent in so constructing, maintaining and operating said telephone pole and its appurtenances and said electric-light wire, in such a position and close proximity to each other, and while said wire was so uninsulated and charged with such high and deadly voltage of electricity, and under such circumstances as to make them each liable in damages to the plaintiff herein for the death of said child."

The petition also alleges that Clarence M. Edwards was about thirteen years of age; that without negligence on his part he was killed on coming in contact with the electric-light wire while he was upon the pole; and that both of the defendants knew, or by the exercise of proper diligence should have known, that boys were in the habit of climbing, and did frequently climb, the telephone pole in question.

1. No act of negligence is alleged to have been committed by the telephone company. It is not alleged that the pole and the wires attached thereto were not properly constructed, nor that either was dangerous; although it is alleged that, on account of the steps nailed to the pole, it was an attractive nuisance. To state a cause of...