Godfrey v. Kansas City Light & Power Co.

• Decision Date: 08 January 1923
• Docket Number: No. 14571.,14571.
• Parties: GODFREY v. KANSAS CITY LIGHT & POWER CO.
• Court: Missouri Court of Appeals

247 S.W. 451

213 Mo. App. 139

GODFREY v. KANSAS CITY LIGHT & POWER CO.

No. 14571.

Kansas City Court of Appeals. Missouri.

January 8, 1923.

Rehearing Denied January 29, 1923.

Appeal from Circuit Court, Jackson. County; Samuel A. Dew, Judge.

Action by Join Godfrey against the Kansas City Light & Power Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

John H. Lucas, William C. Lucas, and Ludwick Graves, all of Kansas City, for appellant.

Atwood, Wickersham, Hill & Popham, Garrett, Howell & Boley, and John Hyde, all of Kansas City, for respondent.

BLAND, J.

This is a suit brought by the father for the loss of services of his boy, a minor 13 years of age. There was a verdict and judgment in favor of plaintiff in the sum of $4,910, and defendant has appealed.

Defendant contends that its instruction in the nature of a demurrer to the evidence should have been given, that there was no negligence on' the part of the defendant shown, and that the minor was guilty of contributory negligence as a matter of law. The facts stated in their most favorable light to plaintiff show that plaintiff's son, on August 10, 1919, in company with three other children, was gathering walnuts in McElroy's pasture, consisting of 205 acres of land lying about three-fourths of a mile from the city limits of Kansas City, Mo. Defendant had put up and maintained an uninsulated electric wire, having a charge of 2,389 volts, across a portion of the pasture and running through a row of walnut trees.

On the day in question, dames Godfrey, plaintiff's son, then about 12 years of age, went into the pasture at the direction of his father to look after some of the latter's stock being pastured there. After attending to this errand, he and one of the other children ascended a walnut tree through the limbs of which, and 18 feet above the ground, passed the wire in question. The wire came within 6 or 8 inches of a limb 3½ to 4 inches in diameter. This tree was a small one, about 30 feet in height and 10 inches thick at the base. It grew in an angling or leaning position and had numerous low limbs, so shaped that it was very easy.for children to climb it. The tree was in full leaf and heavy with foliage.

Plaintiff's son and another boy climbed the tree to shake the walnuts while the other boys remained on the ground to pick them up. While plaintiff's son was coming down the tree backwards, his hand touched the heavily charged bare electric wire, and he immediately *lost his balance, his foot slipped, and his face struck the wire as he was grabbing it with his left hand. The boy testified that the touching of the wire was what made him slip and fall. He was grabbed from below by one of the boys, who was so shocked by the current that he dropped plaintiff's son. While the latter was against the wire, the other boys saw flashes of light coining from the electric wire. Plaintiff's son was rendered " unconscious, and there emanated from him the odor of burning flesh. The boy was taken in an unconscious condition to his home, and remained there 17 days, when he was removed to a hospital for treatment and extensive skin grafting. He stayed at the hospital 6 weeks, where skin was removed from other parts of his body and grafted upon his chin, forehead, and face. His car was burned loose from the face and was not again attached. His left hand was burned to such an extent that at the time of the trial, which was about a year and a half after the injury, he had only partial use of it. This hand has not grown with the right hand and is smaller, is without strength, and is so susceptible to air that it gets numb, and he has to keep it covered. A physician described the hand as "shrunken." It was from one-half to three-fourths of an inch smaller than normal, and the muscles had become atrophied. There is evidence that the injury to the hand is permanent.

The boy's face was badly burned and has a red scar upon it. He described the effect of a thick scar that was on his face as "drawing," This sensation grows worse. his eyes are affected and his head aches constantly. he is required to wear glasses and has difficulty in studying. An oculist testified that he made an examination of the boy and found that he suffered from chronic catarrhal conjunctivitis in both eyes. He had inflammation of the optic nerve and the retina, suffering from optic neuritis and retinitis. There was permanent dead tissue and degeneration of the optic nerve, and permanent impairment of the vision. The evidence shows that an electrical burn is one of the most severe known; that as the result of his burns the boy is stunted in growth and has grown none since his injury; that before his injury he was a strong, healthy boy. His nervous system is affected, and he suffers constant twitching movements, and his sleep is disturbed. He jumps in bed, at times calling out, "Mania, Mama, Oh Mama!" The muscles of his face are affected. A physician testified that, "there is an obscure result from the effect of electricity on the human system that is not accountable for to the fullest extent now," and "it stunts, stops the growth, destroys the nerve centers, as it has done in this case." A surgical operation to attach the car is necessary; this would require an outlay of $250. Doctor's bills have been incurred to the extent of $350 and the hospital fee was from $150 to $200.

Additional facts in relation to the place where the injury occurred show that the McElroy pasture was situated in a more or less thickly settled community between the towns of Sugar Creek and Lit. Washington, which it joined. It also lay adjacent to a large oil refinery. There were 100 to 150 houses in the general vicinity of the place, and a school house not far distant. For many years the land had been used as a gathering place and recreation ground. People would come and gather nuts and papaws. There was a swimming pond which children frequented, there being 15 to 20 in the pond at one time. Boys had played around the pond to such an extent that an 8-foot embankment had been worn down to 18 inches. Children would play at digging caves and building dams and base ball. It was a favorite place for picnics; people fished in the pond, and the caretaker was known to fish with a boy in one instance. School children were taken there by their teachers to gather flowers in connection with their studies. Sometimes there were as many as 25 boys in the inclosure. There were no signs forbidding entry before the injury to plaintiff's son. There was a stile erected which was used in entering. The fence was torn down in one place. There was a cave on the premises which was frequented by children. Boy scouts tented on the place. Plaintiff's son had played there frequently before his injury without objection or protest from anybody. Boys were seen coming from the pasture with the walnuts they had gathered there. The place, for 4 or 5 years before the injury, had been used as a recreation ground by a great many people. As many as 50 or 60 would be there at a time, eating their lunch and picnicking. In short, the record shows that this pasture had for a long time been used as a gathering place and recreation ground by the public, and was constantly in use by children as a playground. Defendant introduced some evidence tending to show that people were ordered out, but the evidence of plaintiff tends to show that no objection was made.

For a number of years defendant maintained two bare wires running from the streets adjacent to this land and across it and directly through the row of walnut trees. These wires carried electricity to the district thereabouts and to a large house on the ground. Plaintiff had seen employés of the defendant out there 50 times or more working on the wires. These wires were entirely barren of insulation. The uninsulated wires had been there about 4 years prior to the time of the injury. When they were placed there, other wires were removed that were insulated. It was feasible and practical to insulate the wire that injured plaintiff's son. These wires could have been easily placed above or on either side of these walnut trees and been isolated. One of defendant's witnesses testified that isolation was one of the best methods of insulating wires known to the electrical world. There was testimony that in electrical circles it was understood that there should be special caution taken to insulate high power lines running through parks or places where people gather.

We think that the negligence of the defendant was fully established, in view of the fact that this ground was, and had been for a great many years prior to the injury, constantly frequented by children, and in view of the well-known tendency of children to climb walnut trees to gather nuts (in that case the evidence that walnut trees on the McElroy place were frequented by children for that purpose), we think there is no question but that defendant could hare reasonably anticipated that a boy would climb the walnut tree in question and come in contact with its high power uninsulated electric wire. Therefore there is evidence in" the record to show negligence on the part of the defendant, and defendant's instruction In the nature of a demurrer to the evidence was properly refused. Williams v. Gas & Electric Co., 274 Mo. 1, 202 S. W. 1; Thompson v. City of Slater, 197 Mo. App. 247, 193 S. W. 971; Temple v. Electric Light, etc., Co., 80 Miss. 1, 42 South. 874, 11 L. R. A. (N. S.) 440, 119 Am. St. Rep. 698, 13 Ann. Cas. 924; Kribs v. Jefferson City Light, etc., Co. (Mo. App.) 199 S. W. 261.

Assuming that plaintiff's son was a trespasser on the McElroy ground, this would not relieve defendant of the duty to use ordinary care, under the circumstances shown, to prevent an accident of this kind. Plaintiff's son was not a trespasser as to defendant. Williams v. Gas & Electric Co., 214 Mo. loc. cit. 11, 202 S. W. 1, 17 A. IL. R. 849-853; Kribs v....