Gilday v. Smith Bros., Inc.
| Decision Date | 27 May 1930 |
| Docket Number | 16919 |
| Citation | 32 S.W.2d 118 |
| Parties | GILDAY v. SMITH BROS., Inc. |
| Court | Kansas Court of Appeals |
Rehearing Denied June 16, 1930.
Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.
Action by E. J. Gilday against Smith Bros., Inc. Judgment for plaintiff, and defendant appeals.
Reversed and remanded.
Conrad & Durham, of Kansas City, for appellant.
Mosman, Rogers & Buzard, of Kansas City, for respondent.
This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $3,000.00 and defendant has appealed.
The facts show that plaintiff, on May 25th, 1926, was injured by receiving an electrical shock while in the employ of the defendant. Defendant was engaged in the work of constructing a tunnel in connection with the water works system in Kansas City. Plaintiff was employed by the defendant as a driller in the work. A concrete tube, six feet in diameter on the inside, was being constructed in this tunnel. The tunnel and tube were lighted by electricity. The current of electricity by a permanent wire was carried from the shaft which led down from the top of the ground through the completed portion of the tube. This wire was fastened by insulators to the side of the tube and ended near the end of the concrete portion of it. There was an extension cord connecting with the end of the permanent wire running fifteen or twenty feet toward the end of the tunnel. On the end of the extension cord was an electric light bulb. The extension cord was "hung on pegs" driven into the earth at the side of the tunnel.
Water had accumulated in the bottom of the tube to a depth of two or three inches and a width of about one foot. Plaintiff had been directed by the superintendent to get two buckets to bail the water out of the bottom of the tube. After securing the buckets plaintiff started back carrying one in each hand. The tunnel was damp by "grouting" that is, spraying the inside of the tunnel with cement and water. Plaintiff was walking astride the water when his right shoulder, in some manner, came in contact with the extension cord and he received an electrical shock, turning him around so that the cord came across his chest. A workman tried to release plaintiff without success. He then ran against or hit plaintiff. Plaintiff became unconscious and the next thing he knew he and a workman "were laying on our backs on the east side of the tunnel."
There was no evidence on the part of the plaintiff, other than the above, of any defect or insufficiency in the insulation of the wire. However, defendant’s evidence shows that sometimes "wire connections got hot down there"; "sometimes they do get a skinned place on the end of the wire from revolving against the form, or something like that." Defendant’s evidence tends to show that the current carried through the wire and cord was 220 volts and that the current grew weaker as it approached the bulb and may have been only 200 volts at that point; that the wire and cord were of a character to carry a voltage of 220; that defendant maintained a transformer at the shaft which reduced the current from 4,000 volts; that 220 volts will kill "if a man gets hooked into it right"; that after the accident the bulb and the cord were inspected and found to be free from defect and the bulb burning; that the electrical appliances were inspected each night throughout the continuance of the work.
Defendant complains of the giving of plaintiff’s instruction No. 1, which reads as follows:
"The court instructs the jury that if you find and believe from the evidence in this case that plaintiff, while in the course of his employment, if so, and without fault on his part, if so, came in contact with the electric light wire in question and that a current of electricity escaped therefrom and into plaintiff, if so, and if you find that plaintiff was shocked and injured thereby, then you are instructed that the escape of such current of electricity, if any, is presumed to have been the result of insufficient insulation on said wire, and you are instructed that under such circumstances, if you find them to have existed, the burden is upon the defendant to prove to your reasonable satisfaction that the shock and injury, if any, received by plaintiff was not due to the insufficiency, if any, of the insulation on said wires."
It is defendant’s contention that this instruction places an undue burden upon the defendant in that it made it an insurer with respect to the insulation of the wire. Defendant admits that there was evidence that plaintiff came in contact with the wire and received a shock thereby and that, therefore, a prima facie case of negligence was made out in the manner of maintaining the insulation, but claims that the instruction advises the jury that the burden was upon the defendant to prove that the injury was not due to the insufficiency of the insulation, regardless of whether defendant had exercised ordinary care.
The instruction does not purport to cover the entire case nor direct a verdict. It is merely on the question of the burden of proof as to the issue of sufficient insulation. This instruction was the only one given on behalf of the plaintiff except one on the measure of damages. Plaintiff was under no absolute duty to offer any instructions whatever, but having succeeded in having the court give one, of course, it should not have been misleading to the jury. We find the defendant succeeded in having the court instruct the jury that it was not an insurer of the safety of its employees, and that the burden of proof was upon plaintiff to prove negligence on the part of the defendant. Reading all of the instructions together the jury was sufficiently instructed in so far as the defendant is concerned and there was no error in the giving of plaintiff’s instruction No. 1. Proof that plaintiff came in contact with the wire and received a shock was at least prima facie evidence of negligence, defendant so admits, and it was conclusive evidence of defective insulation. Geismann v. Missouri-Edison Elec. Co., 173 Mo. 654, 678, 73 S.W. 654; Snyder v. Wagner Elec. Mfg. Co., 284 Mo. 285, 305, 223 S.W. 911; Sudmeyer v. United Rys. Co. of St. Louis (Mo. Sup.) 228 S.W. 64; Hollis v. K. C. Light & Power Co., 204 Mo.App. 297, 224 S.W. 158, 162; Gray v. Union Elec. Light & Power Co. (Mo. App.) 282 S.W. 490; Sanders v. City of Carthage (Mo. App.) 9 S.W.2d 813. Therefore, the instruction complained of was more favorable to defendant than it was entitled. It could have well said that the facts hypothesized therein, if believed, conclusively established that the wire was not sufficiently insulated.
The defense made in this case was that the defective condition, if any, resulted from a cause over which defendant had no control and no opportunity to correct, but all of the evidence shows that defendant was in full possession and control of the appliances. The defense was that, being in possession of the wire and cord, and having furnished a proper wire, cord and electrical appliances in connection therewith in the beginning and maintaining a strict inspection of these, that it had not been guilty of any negligence. There is authority intimating that under such circumstances negligence is conclusively established but we need not go so far as so holding in this case. See Snyder v. Wagner Elec. Mfg. Co., supra, loc. cit. 305 of 284 Mo., 223 S.W. 911.
We have examined the case of Milligan v. K. C. Light & Power Co., 304 Mo. 624, 264 S.W. 408, cited by defendant. We do not understand that the Supreme Court in that case overruled any of the cases that we have cited. The facts in the Milligan Case were entirely different. In that case the theory of plaintiff was that the failure of the defendant to insulate its wire was negligence per se; that as a matter of law defendant owed its employees, who were required to work in proximity to its...
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