Freeman v. Kansas City Power & Light Co., 57802

• Citation: 502 S.W.2d 277
• Decision Date: 10 December 1973
• Docket Number: No. 1,No. 57802,57802,1
• Court: United States State Supreme Court of Missouri
• Parties: Calvin D. FREEMAN et al., Appellants, v. KANSAS CITY POWER & LIGHT COMPANY, Respondent

Page 277

502 S.W.2d 277

Calvin D. FREEMAN et al., Appellants, v. KANSAS CITY POWER & LIGHT COMPANY, Respondent.

No. 57802.

Supreme Court of Missouri, Division No. 1.

Dec. 10, 1973.

Graham, Paden, Welch & Martin, Michael J. Albano, Independence, for appellants.

William H. Woodson, Kansas City, for respondent; Spencer, Fane, Britt & Browne, Kansas City, of counsel.

SEILER, Judge.

Appeal from a judgment in a personal injury suit filed by plaintiffs, Calvin Freeman, a construction crew employee for Missouri Water Company, and his wife, against defendant Kansas City Power and Light Company. The case was tried before a jury which returned a verdict for defendant on all counts. Inasmuch as we had jurisdiction of this appeal at the time it was filed by virtue of the amount in controversy, we are to retain and decide the case as provided by Sec. 31 of the 1970 amendment to Art. V, 1945 Missouri constitution, V.C.M.S. We affirm.

Plaintiff Freeman sustained electrical burns on May 15, 1968 while working for his employer, Missouri Water Company, on a roadside water line construction project. Freeman has no recollection of the circumstances surrounding the accident and the facts, as nearly as they can be established, are based on the testimony of other witnesses to the accident.

Plaintiffs assert there were numerous trial errors committed against them. Defendant denies this and says, further, that plaintiffs failed to make a submissible case and that Mr. Freeman was guilty of contributory negligence as a matter of law, questions which we consider unnecessary to resolve in view of our opinion that plaintiffs are not entitled to a new trial on any of the grounds presented.

Defendant maintained overhead electrical lines in the same right of way where the water main construction work was being done. The three overhead lines, one of which was a high voltage line carrying 7200 volts, were not covered with any insulating material, but were supported by cross arm poles approximately 27 feet above ground at the site where the accident occurred.

At the time of the accident a crane was being used to lift heavy iron pipe over a fence and lay it in a trench. In so doing, the crane had to move under the overhead electrical lines. Plaintiff Freeman was acting as a signalman for the crane operator, 'Doc' Starnes, who was facing the morning sun and could not see to manipulate the pipe. Starnes testified that Freeman signaled for the pipe to be raised slightly and for the boom and pipe to be swung to the north (in the direction of the electrical lines). Starnes heard a 'pop' which he attributed to electricity and saw Freeman start to run; he then saw Freeman dive under the crane about the time he heard a second electrical 'pop'. Freeman sustained electrical burns on his neck, back, both legs and left foot.

Plaintiffs' theory of the case is that the crane became electrically charged when a spark jumped from the high voltage line, a phenomenon known as 'sparkover', to the crane which was at the nearest approximately two feet below and that defendant had negligently failed to isolate or sufficiently elevate its lines. Defendant contends that the accident occurred when the crane touched the high voltage line, and charges Freeman with contributory negligence in directing the operation of the crane.

Plaintiffs make numerous assignments of error in the trial court's handling of the case. They first assert the trial court erred in admitting into evidence the out of court remark of plaintiffs' witness, Marion Smith, which was included in an accident report filed by an investigator for the Missouri Water Company. Smith was an eye witness. On direct examination during plaintiffs' case in chief, Smith gave his version of the accident, which testimony included the statement, '. . . and Mr. Recker jumped the ditch and he said, 'that got Cal ". On cross examination, Smith was asked if he had made a statement to the investigator and then the following exchange took place:

'Q. Didn't you tell folks, and didn't Mr. Recker, in fact, say as he jumped over the ditch that 'They got the boom in the wires and that Cal got it'? Isn't that what Mr. Recker said?

'A. No, no.

'Q. Didn't you tell that to your employer? Did you tell him that's what Mr. Recker said to you?'

Plaintiffs' objection to the questioning on the basis of hearsay was overruled.

During defendant's case in chief, an employee of the Missouri Water Company, Lawrence E. Martin, was called to testify. Martin testified that he was office manager of the water company, that he had custody and control of accident investigation documents, and that investigation reports of all company accidents were customarily made in the ordinary course of business. A report of the accident in question was admitted into evidence. Martin testified that the report was probably made within a day or two of the accident.

The accident report contains a statement attributed to Smith where he said, '. . . About that time Recker jumped over ditch and said that they had got the boom in the wires and it had got Cal . . .' Plaintiffs contend the trial court erred in admitting this statement into evidence because the statement involved multiple hearsay. ¹ Defendant asserts the accident report was admissible under the business records exception to the hearsay rule and the purported statement of Smith contained therein is admissible as a prior inconsistent statement to impeach Smith's credibility as a witness.

What plaintiffs are overlooking is that the out of court statement of Smith as to what Recker said and the purported statement of Recker which was the subject of Smith's statement as contained in the accident report were not admitted into evidence to prove the truth of the matters asserted in that statement, i.e., for hearsay purposes, but were admitted as a prior inconsistent statement to impeach Smith's credibility as a witness. The inconsistency in Smith's story centered around what Recker said, so that what Smith stated Recker said, as contained in the accident report, was admissible to impeach what Smith testified in court Recker said.

Plaintiffs are correct that the accident report and the statements included therein were not admissible to show plaintiff Freeman's contributory negligence and plaintiffs were entitled to a limiting instruction so informing the jury. State ex rel. Kansas City Public Service Co. v. Shain, 345 Mo. 543, 134 S.W.2d 58, 61 (1939). Plaintiffs made no request for such a limiting instruction. The trial court's ruling in overruling the objection to the accident report was not error.

Plaintiffs' next point is that the trial court erred in permitting defendant, over objection, to cross examine the witness, 'Doc' Starnes, concerning his knowledge of electrical lines. Plaintiffs objected to this testimony as irrelevant, immaterial and prejudicial, as tending to influence the jury to charge plaintiff with knowledge that he did not possess.

Starnes was the crane driver at the time of the accident and was the principal trial witness with regard to the facts of the occurrence. On cross examination Starnes answered questions relating to his knowledge of danger from power lines. He also testified that he had had some discussions with plaintiff Freeman about these dangers and had heard him talking about these hazards to other crew members. In view of these discussions and the fact that the evidence was relevant to any possible negligence on the part of Starnes which might have caused the accident, we cannot say that the evidence was irrelevant, immaterial or prejudicial.

Next, plaintiffs assert the trial court erred in sustaining defendant's objection to questions asked Starnes by plaintiffs with regard to whether a different method of moving pipes was used by the water company when the workmen knew there were high voltage lines in the vicinity. Plaintiffs say the court's ruling was error because the court had permitted defendant to inquire, over objection, into the custom and practice of Missouri Water Company when working around power lines, and defendant having opened up an improper subject of inquiry, was estopped from objecting to its further development, on the theory of curative admissibility, citing Daniels v. Dillinger, 445 S.W.2d 410 (Mo.App.1969) and Kelley v. Hudson, 407 S.W.2d 553 (Mo.App.1966). However, even if we were to say that there is a similarity between what defendant asked and what plaintiffs sought to ask sufficient to bring into play the doctrine mentioned, the point was in effect eliminated because Starnes, in response to further questioning by plaintiffs, testified they always handled large pipe with a crane, thus denying any different method or custom and practice in handling this type of pipe, regardless of the voltage of nearby electrical lines. The point is overruled.

Plaintiffs next assert the trial court erred in sustaining defendant's objection to plaintiffs' questions to the witness Starnes seeking to show that Starnes had not read over or signed his transcribed deposition, defendant arguing the questions were objectionable because it had been agreed by counsel and witness that presentment...