Gellert v. Missouri Service Co.

• Decision Date: 13 June 1949
• Docket Number: No. 41216.,41216.
• Parties: GELLERT v. MISSOURI SERVICE CO.
• Court: Missouri Supreme Court

221 S.W.2d 177

GELLERT v. MISSOURI SERVICE CO.

No. 41216.

Supreme Court of Missouri, Division No. 2.

June 13, 1949.

Appeal from Circuit Court, Worth County; Ray Weightman, Judge.

Action by Maxine Gellert against the Missouri Service Company, a corporation, to recover for the wrongful death of plaintiff's husband. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Joseph M. Garvey, St. Joseph, for appellant.

Clayton W. Allen, Rockport, Ellis Beavers, Grant City, for respondent.

BOHLING, Commissioner.

The Missouri Service Company, a corporation, appeals from a judgment awarding Maxine Gellert $15,000 for the wrongful death of her husband, Adolph F. Gellert, Jr. The contention is that plaintiff failed to establish actionable negligence. This calls for the facts.

Events of the night of August 28-29, 1947, are involved. Adolph F. Gellert, Jr., lived in Rockport, Missouri, with his wife and infant daughter. He was thirty-five years old, in good health, and earning approximately $3,500 a year.

The Missouri Service Company is an electric utility, maintaining and operating, among others, a 6900 volt transmission line in a westerly direction from Tarkio to Rockport, a distance of nine miles. This transmission line consists of three uninsulated No. 4 copper wires, each one-fifth of an inch thick, spaced thirty inches apart on cross-arms forty feet above the ground. The poles along Calhoun street in Rockport are spaced 150 feet apart and the outside wires are practically above the curbing. The voltage carried is deadly.

A very large elm tree heavy with foliage stood in the Gellert yard, on Calhoun street, and a bough or branch of this tree, approximately 16 inches in diameter at the trunk, extended, 50 to 60 feet, to about half-way across Calhoun street. Defendant's service man, Virgil J. Hulet, who had inspected defendant's transmission lines monthly for eight years, testified the branch of this tree was eight feet above the wires on August 10, 1947.

The citizens of Rockport used Calhoun street the same as any other street, parking their automobiles along the curb in front of their homes. Defendant's superintendent and inspector knew this.

The Gellerts visited Mrs. Gellert's sister, who lived near by, on the evening of August 28th. Gellert departed for home about 11:00 p. m. and Mrs. Gellert remained at her sister's for the night.

The night in question was warm, citizens had their doors and windows open; it was very still, quiet, no wind, and the weather had been dry for sometime.

Mr. and Mrs. James Nixon, neighbors living about twenty feet east of the Gellerts, returned home that evening about 10:00 o'clock. They noticed blue sparks flying up, followed by a red burning, like leaves burning, and burning leaves or twigs falling from the branch where it was in contact with the high tension wires. They knew C. L. Flowers of Tarkio, a supervisory employee of defendant, and who later became superintendent. After several efforts Mrs. Nixon reached Mrs. Flowers over the telephone and reported the condition, stating it was dangerous. Mrs. Flowers instructed her to inform Mr. Hulet, also of Tarkio, as he had charge of such matters. Mrs. Flowers informed her husband upon his arrival home. He knew, if there were fire in the tree, that some part of the tree had come in contact with the transmission line. He did nothing about the matter, stating Hulet took care of matters of that nature.

Mr. Nixon talked to Hulet about 10:30 o'clock. They knew each other. He told Hulet "that there was a burning condition in the big elm tree right west of the house and there was quite a bit of fire in there and it looked rather dangerous to me and I thought it should be taken care of." Hulet stated he would be over first thing in the morning. Nixon thought he might have told Hulet that may be all right but that he was not an electrician. Hulet testified that when he asked if the condition might be dangerous, Nixon said "he didn't think so"; "that he would like to have it looked after as soon as possible — as soon as you can" and he told Nixon he would look at it in the morning. Nixon continued to observe the sparks and fire for a while and then retired.

Upon his arrival home, Gellert, who was driving his gasoline truck with considerable gasoline in it, parked it at the pole on the line between the Gellert-Nixon lots, and underneath the electric high tension transmission wires.

The Nixons, and others, were awakened about 3:30 a. m. by a terrific or roaring noise. Nixon looked out the kitchen window and about that time there was a second roar or noise. It came from up in the elm tree and created such a brilliant light he had difficulty looking at it. Nixon saw Gellert in his kitchen. He also noticed little fires burning in the grass along the parkway by the side of the gasoline truck, as if some one had touched off little places in the parkway. He left the window. Mrs. Nixon came to look out. She also saw Gellert, and the fire in the grass near the gasoline truck. Gellert came out of his house and ran towards his truck. Mrs. Nixon saw him step over the burning grass and reach for his truck, and as "he reached with one hand up and the other hand towards the knob there was a flash and that was all." "He just keeled over." The fire in the parkway died out in about 30 or 40 minutes.

The noise awakened Earl Hazelrigg, who was connected with public utility work at Rockport and lived in the next block west. He telephoned central to notify the Missouri Service Company and, putting on his rubber gloves, drove to the Rockport substation and pulled the pole switch. This took him about five minutes.

There was evidence to the effect that on two prior occasions the wires had burned down in front of Nixon's home and he testified he knew that the high tension wires were "shorting." Defendant's inspector Hulet knew the transmission line wires would not support the weight of the branch of the elm tree. He testified the flow of electric current over the transmission line could have been disconnected within five minutes by telephoning, within fifteen minutes had he made the trip to open the switch at Tarkio, or within thirty minutes by making the trip to open the switch at Rockport. There was testimony of record to the effect that a limb rubbing or batting against a high tension electric wire, or causing two such wires to come together, or conducting electric current from one such wire to another, would create a "short" and cause the wires to burn down.

Mr. Gellert's body was in the parkway and on the curb and was clothed except for one shoe and his hose, which he had in his hand. Two of the transmission line wires were down; one wire was between the second and big toe of his left foot and the other was at the curbing.

Plaintiff hypothesized a recovery upon findings that the defendant negligently failed to stop the flow of electric current into said wires and to prevent them from breaking; and that defendant was negligent in continuing, after the evening of August 28, 1947, to charge its said wires with deadly electric current, and that the defendant was negligent in permitting said wires to break and fall near deceased's truck when said wires were charged with deadly electric current.

Defendant says its motion for a directed verdict should have been sustained because: 1st. Plaintiff failed to establish that the submitted negligence was the proximate cause of Gellert's death, 2nd. There was a complete failure of proof that the fire in the tree at 10:00 p. m. in any way caused the limb of the tree to break and fall upon the wires at 3:30 a. m., and, therefore, plaintiff failed to establish any causal connection between defendant's failure to turn off its electricity upon being notified of the fire in the tree and Gellert's death the following morning.

We think it logical first to determine whether there was any causal connection between defendant's acts and Gellert's death and, if so, then determine whether defendant's acts were negligent and imposed liability; that is, constituted a legal or proximate cause of Gellert's death.

Mr. Gellert's death was caused by his coming in contact with defendant's...