Gladden v. Missouri Public Service Co., 44418

• Decision Date: 11 April 1955
• Docket Number: No. 44418,No. 1,44418,1
• Citation: 277 S.W.2d 510
• Parties: Walter L. GLADDEN, Appellant, v. MISSOURI PUBLIC SERVICE COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 510

277 S.W.2d 510

Walter L. GLADDEN, Appellant, v. MISSOURI PUBLIC SERVICE COMPANY, a Corporation, Respondent.

No. 44418.

Supreme Court of Missouri, Division No. 1.

April 11, 1955.

Clay C. Rogers, James W. Benjamin, Kansas City, for appellant. James E. Campbell, Robert L. Shirkey, Rogers, Field & Gentry, Kansas City, of counsel.

William H. Curtis, Karl F. Schmidt, John R. Gibson, Morrison, Hecker, Buck, Cozad & Rogers, Kansas City, Patterson & Patterson, Kansas City, for respondent.

HYDE, Judge.

Action for $200,000 damages for personal injuries. Verdict and judgment for defendant and plaintiff has appealed. Plaintiff alleges error in Instructions 6, 7 and 8. Defendant contends that these instructions were proper and that plaintiff was not entitled to judgment in any event because no negligence of defendant was shown and because plaintiff was guilty of contributory negligence as a matter of law.

Plaintiff was injured when he climbed a tree on a public highway (to catch a tame parakeet that got out of its cage) and fell after his hand touched one of defendant's electric wires. Defendant's electric line was on the east side of Woodson Road, a north and south highway through an unincorporated area of Jackson County. Plaintiff lived about 500 feet west of Woodson Road on the north side of 53rd Street, an east and west street that ended at its intersection with Woodson Road. There were three hackberry trees, on a bank within the highway right-of-way, on the east side of Woodson Road across from the 53rd Street intersection and defendant's wires went through these trees. These trees were very close together and when plaintiff's parakeet got out of his house it flew into the one farthest east. The trees were in full leaf, the casualty occurring October 9, 1950. They had last been trimmed around the wires by defendant in the spring of 1948. Plaintiff had resided in his home on 53rd Street for about three years; and the electric line on 53rd Street that served his home came from the Woodson Road line. Plaintiff was employed by the Westinghouse Electric Company, testing jet engines. He had previously served in the United States Navy and the Naval Air Corps and had worked as a civilian employee of the Army Air Corps. He had also been employed by aviation manufacturing companies and Trans World Airlines in mechanical work on airplanes. He was 39 years old at the time of his injury.

There were six wires on defendant's electric line through these trees. Three top wires, carrying 2400/4160 volts, were parallel to each other and were 25 feet 7 inches above the ground at the foot of the trees and 29 feet 7 inches above the road level. These three top wires were attached to cross arms on the poles. There were also three lower verticle wires, attached to the sides of the poles. The two lower wires carried 120/240 volts and the upper one was a neutral wire. The lowest wire was 21 feet 1 inch above the ground, the middle wire was up 21 feet 10 inches and the neutral wire was up 23 feet 3 1/2 inches. The lowest point of the lowest wire between the two poles nearest the trees was 19 feet 10 inches above the ground. The lower wires were covered with insulating material but the upper wires were bare. Plaintiff saw the wires as he climbed the tree but said he did not know they were carrying electricity and had no knowledge that bare wires carried electricity. He said he thought the uninsulated wire he saw 'was a guy wire that they used between poles to pull them up tight together.' Plaintiff said he never had seen guy wires parallel to the ground and did not look out to see if the wires were attached to cross arms. He was holding his hand above his head trying to coax the bird to get on his hand and he did not touch the wire intentionally but his thumb came in contact with the wire. He did not know how it happened. However, one of plaintiff's witnesses, who removed him in an ambulance, testified that plaintiff said 'he either slipped or fell and came in contact with the wire.'

Plaintiff further testified, as follows:

'Q. And did you exercise any precaustions at all? Did you try to keep away from that wire when you were up there? A. I wasn't intentionally touching it, if that is what you mean. I wasn't intentionally touching no wires in that tree.

'Q. Why did you intend not to touch them? A. I wasn't intending to touch any wires that I seen.

'Q. It was your desire, then, not to come in contact with any of the wires? A. No, I had no intention to come in contact with none of them.

'Q. Well, did you want not to come in contact with any of the wires? A. Why, sure, I wouldn't, I wouldn't get next to none of them.

'Q. Why not? A. Well, you wouldn't get next to--what I mean, the insulated wires.

'Q. Well, did you intend or have any intention not to touch this uncovered wire? A. Yes, sir, I had no intention of touching it.

'Q. Why did you have no intention of touching it? A. Just because a wire is a wire. I just had no intention of touching it. * * *

'Q. You would not have touched it intentionally? A. No.

'Q. Why not? A. Well, I wouldn't know the reason for that.

'Q. I mean, if you would not have touched it intentionally, you have some reason for not wanting to touch it intentionally. A. Well, it could have been any kind of a wire there, as far as that, what I mean is, a wire on the telephone pole, I wasn't goint to touch any of them intentionally.

'Q. You wouldn't touch any wire up in the air intentionally, is that right? A. That is right.'

Plaintiff's witness Arthur C. Kirkwood, a consulting engineer, with experience in planning, supervising and constructing electric lines, testified that the construction of defendant's line was substandard and failed to provide adequate safety to the public. He said the condition there would be hazardous to anyone entering the trees and that the presence of persons in all trees should be anticipated. He further stated that it was a common practice of electrical companies in Jackson County to run uncovered electric wires through trees on highway. This was also stated by both the present and preceding Highway Engineer of Jackson County. Mr. Kirkwood said there were self-supporting aerial cables which would effectively prevent the escape of electricity to any person who might come in contact with them, but they cost several times as much as ordinary wire. He further testified that the wires could be isolated by elevating them on longer poles or that trees through which they passed could be trimmed so that a person climbing the trees would not reach one of the wires carrying high voltage. His opinion was that failure to so trim trees through which wires passed was sub-standard construction. He did not recommend raising the poles in this particular instance. Pictures in evidence show the wires were close to the branches and foliage. Witnesses who went to aid of plaintiff said the wires in the trees could be seen from the ground.

Defendant's evidence showed that defendant was required by the Missouri Public Service Commission to construct all electric lines 'to conform to the specific rules and regulations contained in the National Electric Safety Code issued by the United States Bureau of Standards.' The Commission also required defendant to maintain and operate its lines 'in a reasonably safe and adequate manner so as not to endanger the safety of the public.' The clearance of wires along roads, required by the code in rural districts, was 18 feet for lines of 750 to 15,000 volts. In cities, along streets or alleys, the required clearance was 20 feet above the ground. For less than 750 volts, the required clearances were 15 feet and 18 feet respectively. These were minimum heights. Defendant's supervisor, Earl D. Dryer, testified, as to the purpose of tree trimming, as follows: 'It is to maintain clearance of the trees from the wires so that wind storms and so forth won't blow the branches into the wires and therefore blow the wires together that would cause them to short out. * * * prevent troubles on our circuits; in other words, maintain service to our customers.' A Commission engineer, J. R. Gilcrest, said the purpose of covering wires was to protect low voltage wires coming in contact from arcing, burning down or shorting out the system; and that he did not know of any covered wire 'that is guaranteed by the manufacturer or anyone against personal injury through contact with that wire when it is energized with high voltage.' Defendant had other testimony that covering does not protect a person coming in contact with a high voltage wire; that it tends to reduce but does not eliminate the shock hazard; and that covered aerial cables mainly were used through trees which were not permitted to be trimmed. Defendant's evidence also was that its Woodson Road line was standard and not sub-standard construction.

Defendant contends that, as a matter of law, defendant did not violate any duty of care owed by it to plaintiff and that its construction and maintenance of its wires did not proximately cause his injuries. It bases this contention upon the theory that defendant, even in the exercise of the highest degree of care could not have anticipated the presence of adults in the tree where they would come in contact with its wires, citing such cases as Howard v. St. Joseph Transmission Co., 316 Mo. 317, 289 S.W. 597, 49 A.L.R. 1034; Celner v. Central Illinois Electric & Gas Co., 343 Ill.App. 310, 99 N.E.2d 214; and Empire District Electric Co. v. Harris, 8 Cir., 82 F.2d 48. In the Howard case [316 Mo. 317, 289 S.W. 598], a judgment of dismissal was affirmed, on a petition seeking to extend the attractive nuisance doctrine to "an unattractive dangerous instrumentality in or near an attractive environment." Defendant's wires were near a creek where boys engaged in fishing and swimming. The plaintiff was injured when he climbed defendant's pole to release a fish hook and line from its...