Freeman v. The Missouri & Kansas Telephone Co.
| Decision Date | 09 January 1912 |
| Citation | 142 S.W. 733,160 Mo.App. 271 |
| Parties | CAROL MILTON FREEMAN, by WALTER FREEMAN, his next friend, Respondent, v. THE MISSOURI & KANSAS TELEPHONE COMPANY AND THE CONSOLIDATED ELECTRIC LIGHT AND POWER COMPANY, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James E. Goodrich, Judge.
AFFIRMED (conditionally).
C. C Crow, Battle McCardle and Gleed, Hunt, Palmer & Gleed for appellant, Mo. & Kan. Tel. Co.
(1) Defendant Telephone Company could not be held liable in the absence of proof of actual knowledge that the light wire had been erected; therefore the demurrers to the petition and to the evidence should have been sustained. The first instruction given at plaintiff's request was erroneous and the 4th, 13th, 14th, and 20th instructions requested by defendant Telephone Company should have been given. The guy wire was not a service wire used in the transmission of messages, and therefore no defect in it would be shown by an interference with the service. Strack v. Tel. Co., 216 Mo. 601. The Telephone Company had no knowledge of the erection of the light wire. Until the Telephone Company had such knowledge, it was under no duty with reference to the light wire--where there is no duty there can be no negligence. In the absence of actual knowledge the Telephone Company is not liable. Dow v. Tel. Co., 106 P. 587 McKay v. Tel. Co. 111 Ala. 337. See quotations from these cases, infra. (2) By the first instruction requested by plaintiff, the question of proximate cause was taken from the jury. Whether or not an act is the proximate cause of the injury complained of is a question for the jury. Clemens v. Railroad 53 Mo. 366; Payne v. Railroad 129 Mo. 405; Dunn v. Railroad 21 Mo.App. 188. (3) The damages are excessiive. Plaintiff lost his left small toe and the next toe. He is not lame, and was working at the time of the trial. The jury allowed him $ 15,000. This showed passion and prejudice. The court cut this $ 7,500, but this amount is grossly excessive. Brady v. Railway 206 Mo. 509. Stoltze v. Transit Co., 188 Mo. 581; Davidson v Transit Co., 211 Mo. 320; Gibney v. Transit Co., 204 Mo. 704; Chitty v. Railway, 166 Mo. 435; Furnish v. Railway, 102 Mo. 438; Gurley v. Railway, 104 Mo. 211. (4) It was not shown that defendant Telephone Company owned the guy wire. The question of ownership was contested, and the burden was therefore upon plaintiff to show ownershiip by substantial evidence. Brubaker v. Light Co., 130 App. 439.
Boyle & Howell for appellant, Consolidated Electric Light & Power Co.
The defendant, Consolidated Electric Light and Power Company, is not liable to plaintiff under the evidence and its demurrer to the evidence should have been sustained. Hebert v. Light Co., 111 La. 522; Guinn v. Tel. & Tel. Co. (N. J.), 62 A. 412; Horning v. Tel. Co., 111 A.D. 22, 97 N.Y.S. 625; Rowe v. Tel. Co., 66 N. J. L. 19, 48 A. 523; Harrison v. Electric Light Co., 195 Mo. 606; Railroad Co. v. Conery, 61 Ark. 381. The defendant Missouri & Kansas Telephone Co. having its guy wire near a public thoroughfare, should have placed a guard between its guy wire and the electric light company's wires or have insulated its guy wire. It is immaterial even though the danger arose after the construction of the telephone line. The care of the company changed with changed circumstances. McKay v. Telephone Co., 111 Ala. 337; Jones v. Finch, 128 Ala. 217; Telephont Co. v. Ware, 115 Ky. 581, 74 S.W. 289.
Brewster, Kelly, Brewster & Buchholz for respondent.
Telephone Company liable if it had either actual or constructive notice. The Telephone Company was liable if it either had actual knowledge, or if, by the exercise of ordinary care on its part, it could have known of the construction of the electric light wire in time to have insulated it guy wire before the injury to the plaintiff. The evidence shows that it had actual knowledge of the construction of the electric light wire and this evidence is undisputed. The evidence also shows that by the exercise of ordinary care, it could have known of the construction of the electric light company's wire, for the reason that said wire had been erected for six months before the happening of the injuries to plaintiff, and the courts have universally held that such a lapse of time is constructive notice to the defendant of the conditions surrounding its line of wires. Goodwin v. Tel. Co., 138 S.W. 940; Guinn v. Tel. Co., 72 N. J. L. 276; Haynes v. Gas Light Co., 114 N. Car. 203; Railway Co. v. Shelton, 89 Tenn. 423; McKay & Roach v. Tel. Co., 111 Ala. 337; Kansas City v. File, 60 Kan. 157; Rowe v. Tel. Co., 66 N. J. Law 19.
This is an action for damages for personal injuries alleged to have been caused by negligence of the defendants. A trial in the circuit court resulted in a verdict for plaintiff and against both defendants in the sum of fifteen thousand dollars. On the hearing of the motions for a new trial and in arrest of judgment, separately filed by each defendant, the court ordered plaintiff to enter a remittitur of seven thousand five hundred dollars and all accrued interest as a condition upon which the motions would be overruled. Plaintiff complied with this order, the motions were overruled, judgment was rendered for plaintiff in the sum seven thousand five hundred dollars, and each defendant separately appealed.
The injury occurred in the morning of Sunday, April 19, 1908, near the intersection of Ash street and Barber avenue in Argentine, Kansas. Plaintiff was fifteen years old at the time and, in the company of a number of other children, was returning from Sunday School. They came from the north on Ash street which runs north and south and turned east at the intersection into a path in the sidewalk space along the north side of Barber avenue which runs east and west. There was a telephone pole owned by defendant at the northeast corner of the intersection and just north of the path. A guy wire ran from the top of this pole to a guy pole on the south side of Barber avenue. This guy wire was wrapped around the telephone pole near the top and then continued on down to the ground where it was attached to a "dead man" buried in the ground just north of the path and about fifteen feet east of the telephone pole. The guy wire was not a service wire and was not intended to carry any current of electricity or to come in contact with any service wires but its sole function was to hold the telephone pole in place. The defendant Telephone Company operated a telephone exchange and did not employ high power currents of electricity. It had built its lead to which the telephone pole, guy wire and "dead man" belonged, some time before its co-defendant, a user of high power electric currents appeared on the scene. About six months before the injury the latter company built a line across the street intersection and placed a highly potential service wire across and ten or twelve inches above the telephone guy wire crossing Barber avenue. This wire was insulated; the guy wire was not. Gradually it sagged lower and lower until it came into contact with the guy wire. Either on account of the insulation being insufficient to prevent the escape of electricity to the guy wire, which, as we have shown, was grounded at the "dead man" or on account of the insulation becoming worn by the chafing of the two wires, the current did escape from the electric light wire to the guy wire and reach the earth at the "dead man."
A witness observed electric fire at the place of contract about twenty minutes before the injury but the evidence does not show how long before then the current had been deflected to the guy wire. The current produced a buzzing noise at the "dead man" and this noise attracted the attention of the passing children who thought it came from a swarm of bees. Some of the boys, among them plaintiff, paused to examine the place and while so engaged, plaintiff grasped the guy wire and received a severe shock which caused the injuries of which he complains. The place was in a sparsely settled neighborhood but the path was in a public thoroughfare and was used by a number of families living in the vicinity. The electric light wire carried a current of 2200 volts--more than enough to cause death--and the escape of the boy from death was due either to the failure of the full current to pass through his body, or to the fact that, owing to the declivity of the ground and his struggles, his contact with the wire was severed in time for his life to be spared.
The charge in the petition against the Electric Light Company is that it "negligently erected and maintained its said electric light wire in proximity to said guy wire after it knew, or by the exercise of ordinary care could have known, of said guy wire and its position, and that the same was not insulated, and negligently charged said wire with a heavy voltage of electricity, to wit, a voltage of sufficient force to cause instant death to anyone coming in contact with said wire," and that it knew "or by the exercise of ordinary care could have known, that said electric light wire had come in contact with said guy wire in time, by the exercise of ordinary care, to have repaired said wire in time to have averted the accident to plaintiff hereinafter complained of, but that said defendant negligently failed to repair said wire until after said accident to plaintiff."
As to the Telephone Company the petition alleges that it knew "or by the exercise of ordinary care could have known, that said electric light wire was heavily charged with electricity, and that there was danger of its coming in contact with and electrifying said guy wire, thus and thereby rendering said guy wire dangerous and unsafe...
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