Foster v. Railway Co.

• Citation: 26 S.W.2d 770
• Decision Date: 07 April 1930
• Docket Number: No. 28412.,28412.
• Court: United States State Supreme Court of Missouri
• Parties: MATT FOSTER v. KANSAS CITY, CLAY COUNTY & ST. JOSEPH RAILWAY COMPANY, Appellant.

26 S.W.2d 770

MATT FOSTER v. KANSAS CITY, CLAY COUNTY & ST. JOSEPH RAILWAY COMPANY, Appellant.

No. 28412.

Supreme Court of Missouri.

Division Two, April 7, 1930.

Appeal from Platte Circuit Court. — Hon. Guy B. Park, Judge.

AFFIRMED.

Inghram D. Hook, James H. Hull and Paul C. Sprinkle for appellant.

(1) The court erred in overruling appellant's demurrer at the close of the evidence. Klebe v. Distilling Co., 207 Mo. 480; Removich v. Construction Co., 264 Mo. 43; Ash v. Printing Co., 199 S.W. 994; Sabol v. Cooperage Co., 313 Mo. 527; Meade v. Water & Steam Supply Co., 318 Mo. 350; Ogelsby v. Ry. Co., 177 Mo. 272. (2) The court erred in admitting improper testimony offered by the respondent. Root v. Railway Co., 195 Mo. 348; Henson v. Railway Co., 301 Mo. 415; Schulz v. Railway Co., 4 S.W. (2d) 768.

W.W. McCanles and R.H. Worline for respondent.

(1) The court did not err in overruling appellant's demurrer at the close of the evidence. Eckhardt v. Elec. Mfg. Co., 235 S.W. 117; Myers v. City of Independence, 189 S.W. 816; Taul v. Sad. Co., 229 S.W. 420; Blanton v. Dold, 109 Mo. 75; Meade v. Water & Steam Sup. Co., 318 Mo. 350; Arkansas Light & Power Co. v. Jackson, 267 S.W. 359; Hill v. Union E.L. & P. Co., 260 Mo. 43; Von Trebra v. Gaslight Co., 209 Mo. 648; Geismann v. Electric Co., 173 Mo. 654; Ryan v. St. Louis Transit Co., 190 Mo. 621. (2) The court did not err in admitting testimony offered by the respondent. Taul v. Askew Sad., 229 S.W. 42; Porter v. Light, Heat & Power Co., 277 S.W. 913; Wheeler v. Casualty Co., 298 Mo. 619; Bleesh v. Rhodes, 242 S.W. 971; Hackney v. Hargrove, 259 S.W. 495; Loveland v. Arnold, 261 S.W. 741; Flour Mills v. Commission Co., 262 S.W. 389.

WHITE, J.

The appeal is from a judgment in the Circuit Court of Platte County March 19, 1927, for $10,000 in favor of plaintiff on account of personal injuries received while employed by the defendant in operating a power station.

The plaintiff operated Sub-Station D in North Kansas City, Clay County. The evidence is conflicting as to his experience with electricity. While he had been in the employ of the company since 1920 at different times and had had several years' experience, he testified that he was instructed two days in the performance of his duties at the sub-station; that he had no experience with electricity prior to the time he worked for the defendant, and could not "trace a lead." The jury was required to find and did find that the plaintiff at the time he was injured was not an experienced electrician, and "knew nothing about the details of the operation and mechanism of electrical machinery and appliances in the sub-station, except the knowledge of how to start and stop the machinery, read the meter, clean the oil switches, pull disconnects, kick out the oil switches, and charge the lightning arrester."

June 23, 1926, while in charge of Sub-Station D, plaintiff undertook to wipe the dust off the oil switches at that station, and received a charge, causing the injuries for which he sued. The electric current came into that station across the Missouri River from Kansas City on three wires, commonly known as a three-phase current. It came in at a comparatively low voltage, 6600 volts, and by means of transformers the voltage was "stepped up" to 33,000 volts and sent out on lines leading to Excelsior Springs and St. Joseph. The current, coming out of the transformers, traveled on the wires up to the ceiling of the room in which respondent was injured, and then passed through the wires on this ceiling down through oil switches, and out on the lines.

From photographs in the record and descriptions by the witnesses, it appears that three oil switches stood on the floor three or four feet high, and were connected with three oil switches eight or ten feet above the floor. Eighteen or twenty inches above those upper oil switches along the ceiling ran the power lines. Three "disconnects," attached to the oil switches, extended upward to the power lines. Those disconnects, eighteen or twenty inches in length, were pulled down on hinges, by which they are attached below, when necessary to shut off the current from those power lines.

On that day Sub-Station C was to be operated for the St. Joseph line, and Sub-Station D was to remain inactive. The plaintiff, first pursuing the method by which he was instructed, kicked off the oil switch below. The evidence is not clear as to how that was done. Then the plaintiff proceeded to pull down the disconnects on the three lines above mentioned. There was a hole in the top of each, and, using a stick with a pin in the end, he pulled down each disconnect. He then placed a ladder against the lower oil switches, climbed up to about the fourth round of the ladder, three or four feet, where his shoulders were about on a level with the three oil switches and the three disconnects, which he had pulled down. The hot lines were still running along the ceiling above, probably almost on a level with the top of his head, eighteen or twenty inches above his shoulders. He was facing the middle oil switch and disconnect, and took hold of a brace iron with his right hand. He had in his left hand a rag, sprinkled with oil for the purpose of taking up the dust, and he reached over to the right with that rag in his left hand and started to wipe the oil switch near his right shoulder, when there was a sudden flash of light, and his left hand was severely burned and injured so that some of the bones were later taken out. Also his right hand was burned where it rested on the brace iron. The shock caused him to fall and his skull was fractured. There was no evidence of any electric burn about his head. It was only in his two hands where they appeared to form a connection of the current which passed through from the brace iron to the oil switch, which he was wiping, or from the oil switch to the brace iron. There was no evidence to show whether the electricity would cause greater damage where it passes into or out of a human body.

As the plaintiff was ascending the ladder, he wiped a rod extending from the base of the oil switch upward. It was made of wood and not electrified. The plaintiff, having proved the injury occurred in the way indicated, rested.

The defendant had previously filed a motion to make the petition more specific, because it did not particularize the negligence which caused the plaintiff to be injured. It only alleged generally that he was injured because the defendant negligently allowed and permitted a dangerous and deadly current to pass into his limbs and body. That motion was overruled. The case was submitted on the theory of res ipsa loquitur.

I. The defendant in its answer denied generally the allegations of the petition, and alleged that the plaintiff was experienced in the operation of the station, and his injury was caused solely by his own negligence; that he knew the wires, which Eliminated passed through the station above, were highly charged Issue. with electricity; that in placing the ladder so that he could reach certain insulators, located twelve or fifteen inches from the wires highly charged with electricity, and while in the position of wiping and cleaning some portion of the electric apparatus, he negligently placed his hand in close proximity to or against the highly charged wires, or permitted the rag with which he was wiping it to come into proximity to or against the highly charged wires, and as a direct result of that contact the electricity from the highly charged wires passed through his body. There was no direct evidence that plaintiff came in contact with wires above. The defendant merely asserts that plaintiff's injury could have occurred in no other way. That issue was submitted to the jury by an instruction presented by the defendant. They were instructed that if they found the facts as so alleged they should find for the defendant. The jury found for the plaintiff, and therefore did not believe that the plaintiff received his injury in the way described in the answer. That is, he did not receive his charge from carelessly...