Followill v. The Kansas Construction Company) The Kansas Gas & Electric Company

• Decision Date: 07 April 1923
• Docket Number: 24,296
• Court: Kansas Supreme Court
• Parties: ROBERT FOLLOWILL and MARGARET A. FOLLOWILL, Appellees, v. (THE KANSAS CONSTRUCTION COMPANY) THE KANSAS GAS & ELECTRIC COMPANY, Appellant

214 P. 430

113 Kan. 290

ROBERT FOLLOWILL and MARGARET A. FOLLOWILL, Appellees, v. (THE KANSAS CONSTRUCTION COMPANY) THE KANSAS GAS & ELECTRIC COMPANY, Appellant

No. 24,296

Supreme Court of Kansas

April 7, 1923

Decided January, 1923.

Appeal from Sedgwick district court, division No. 1; THOMAS E ELCOCK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Exposed Uninsulated Electric Wires--Death of Boy--Sufficient Petition. In an action by parents for the death of their minor son, who was killed by an electric shock while bathing in a public stream and while climbing upon a floating scow to dive therefrom, upon which scow there lay certain uninsulated wires heavily charged by electricity, which electric power was supplied by one of defendants and used by the other defendant to operate a sand pump, the evidence of negligence examined, and held sufficient as against a demurrer thereto.

2. SAME--Wantonness Charged. The allegations of the petition examined, and held sufficient to raise an issue of defendants' wantonness, and held further, that the raising of such issue was favorable rather than prejudicial to defendants.

3. SAME--Instructions. The instructions complained of examined, and held not to be erroneous.

4. SAME--Language of Court in Instruction Not Prejudicially Erroneous. The court's colloquial characterization of the unguarded switch and the uninsulated and sagging wires and the death-dealing electric current which killed the plaintiffs' son as a "mantrap" was not inapt and not prejudicial to appellant.

A. L. Noble, W. A. Ayres, Hal M. Black, and C. A. McCorkle, all of Wichita, for the appellant.

Andrew G. Washbon, of Wichita for the appellees.

Dawson, J. Marshall, Dawson, JJ., dissenting.

OPINION

DAWSON, J.:

This action for damages was brought by plaintiffs for the death of their minor son through the alleged negligence of the defendants. The lad met his death while bathing in the Arkansas river by coming in contact with a live wire stretched from a pole on the river bank to a sandboat in the river. The wire was supported on a series of small scows or floats, and the plaintiffs' son, who had been swimming near by, approached one of these scows, probably intending to climb upon it and use it as a diving platform. As he started to draw himself up on the scow, one of his hands came in contact with the live wire and he immediately sank into the water and died.

The Kansas Construction Company owned the wires, the scows and the sandboat, and was engaged in pumping sand from the river for commercial purposes. The Kansas Gas & Electric Company was the utility company which furnished the electric power which operated the sand pump. The electrical company's wires terminated at a transformer set upon a pole on the river bank. There was a switch on the pole, located about eight feet from the ground, where the electric current could be turned off as the sand company's workmen left their work at the close of the day. The switch was not enclosed, and any meddlesome person could operate it, and this sometimes had occurred. The accident occurred in the evening after working hours. It was in midsummer and many boys and young men were wont to swim in the river in the vicinity of the pumping plant. It was shown that the insulation of the wires had worn off in places, and that the wires sagged to within a foot above the deck of the scow where the boy was killed, and that the deck of the scow was about a foot above the water.

The jury rendered a verdict against both defendants, and made special findings:

"1. Do you find that the defendant, The Kansas Gas & Electric Company was guilty of any negligence that constituted a proximate cause of the accident to Walter Followill?

"A. Yes.

"2. If you answer the first question in the affirmative, state particularly what acts or omissions of the electric company constituted such negligence.

"A. We hold that the manner and mode of installation was such that it should have been apparent to an agent of the company that it was likely to fall out of repair and become dangerous to the extent that the court defines as wantonness.

"3. State whether the switch which was attached to the pole on the bank of the river was the property of the Gas & Electric Company.

"A. The evidence does not disclose clearly the ownership.

"4. State whether Walter Followill was killed from electric shock by touching a live wire on the float.

"A. Yes.

"5. Who was the owner of the electric wires which ran from the pole on the bank to the sand boat?

"A. The Kansas Construction Company."

Judgment was entered accordingly. The electric company alone appeals.

The first error it assigns relates to the overruling of its demurrer to the evidence. All the evidence, such as it was, was admitted without objection. It fairly showed that the electric current was supplied by the one defendant and used by the other in a heedless and dangerous manner. Neither defendant gave any regard to the dangerous nature of the agency. It was of no importance in this lawsuit which of the defendants actually owned the electric switch. It was left unlocked and unguarded, so that any meddler could tamper with it. The appellant heedlessly supplied the death-dealing current to the slipshod, ragged and uninsulated equipment of the sand company. The electric company installed the equipment, and its experts must have known that it would speedily become dangerous through the wear and tear of weather and use in such a business as the said company's. The appellant must have foreseen that the equipment would get out of order and become dangerous, for in its contract to supply the electric energy it stipulated:

"6. All wiring, piping, and apparatus shall be installed and maintained to the satisfaction of the Engineering Department of the [electric] company, and also in accordance with government regulations. 7. Consumer agrees to allow the properly authorized agents of the company to have free access at reasonable hours...