Hamilton v. Laclede Elec. Co-op., 45226

• Decision Date: 10 September 1956
• Docket Number: No. 2,No. 45226,45226,2
• Citation: 294 S.W.2d 11
• Parties: Ethel F. HAMILTON, Appellant, v. LACLEDE ELECTRIC COOPERATIVE, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 11

294 S.W.2d 11

Ethel F. HAMILTON, Appellant, v. LACLEDE ELECTRIC COOPERATIVE, a Corporation, Respondent.

No. 45226.

Supreme Court of Missouri, Division No. 2.

Sept. 10, 1956.

Rehearing Denied Oct. 8, 1956.

Edgar Mayfield, Lebanon, for appellant.

Allen, Woolsey & Fisher, Clarence O. Woolsey, Russell G. Clark, Springfield, for respondent.

BOHLING, Commissioner.

Ethel F. Hamilton, plaintiff, sued the Laclede Electric Cooperative, a corporation, defendant, for $10,000 damages for injuries received as the alleged result of negligence in the construction and maintenance of a high voltage uninsulated electric wire in use to supply electric power to plaintiff's farm home. The court sustained defendant's motion for a directed verdict at the close of plaintiff's case on the ground plaintiff's evidence established her contributory negligence as a matter of law.

Plaintiff and her husband were engaged in removing a pipe and pump from a drilled well when the pump came in contact with one of defendant's wires and plaintiff was severely shocked and burned. Her petition charged defendant was negligent in locating a high tension uninsulated wire directly over the well; in failing to insulate said wire and keep the same insulated; and in failing to warn plaintiff of the danger. She contends in her brief defendant should have 'located said line in a different place, at a greater distance as well as height from the well' or should have 'insulated said line'; and that plaintiff was not contributorily negligent as a matter of law.

Mr. and Mrs. Hamilton, as husband and wife, had purchased a 120 acre farm in Dallas county, Missouri, and took possession on March 10, 1954. They knew the farm had electric service. Plaintiff stated she would not want it without electric service. The Hamilton house is east of a north-south gravel road, facing it. They had a big yard south of the house, with the drive on the south side of the yard. A 'drilled well,' with a 'pitcher pump,' was in a well house 12 to 15 feet south of the east side of the house. The well house was about 3 1/2 feet wide, 10 or 12 feet long and 7 or 9 feet high, with the well in the southwest corner. The door was on the north side of the well house, and about over the well was a hole in the roof, about 6 or 8 inches wide and extending 12 to 18 inches down the roof.

Defendant's high tension line was on the west side of the road. The transformer pole for service to the Hamilton farm was south and east of the well house and 65 steps of approximately a yard each from defendant's main line. Three insulated wires ran northeast from the transformer pole to other poles. The meter measuring the service and a yard light were on a pole or on different poles in the yard. The two wires from the road to the transformer pole are here involved, particularly the top wire. They were uninsulated and carried 7,200 volts. Mr. Hamilton testified these wires were 'four big steps' south of the well. This was the testimony of Otis Richardson, plaintiff's other witness on the issue, who testified that the pump and pipe had to lean in a southerly direction about 12 feet before it would hook onto the wire involved.

The water from the well became muddy, unfit for drinking, cooking or washing. Mr. Hamilton had pulled pumps before, and plaintiff had helped pull pumps at least a couple of times. She testified that she and her husband owned the farm and the pump and pipe together and that they were pulling the pipe for their joint benefit, as did Mr. Hamilton. Neither knew the depth of the well nor the length of the pipe in the well. They decided to pull the pump about 3 p. m., March 25, 1954. Mr. Hamilton went to the well house, took some 'rotten' boards out of the floor and handles and things off of the pump. The dirt floor was damp. He called for plaintiff to help. Mr. Hamilton would lift the pump and pipe about 3 feet, plaintiff would hold it while he secured another grip, and this procedure would be repeated. No wires were over the well house. Plaintiff testified: 'If you had kept them over there [the hole in the well house roof], we would have seen them'; but neither she nor her husband looked up through this hole.

Mr. and Mrs. Hamilton were facing north, toward the door, and just as the pipe cleared the well casing there was an 'explosion' and Mr. and Mrs. Hamilton were 'knocked' out of the door and severely injured. Plaintiff and her husband were taken to a hospital in Lebanon, where they remained overnight. They returned home the following day. Plaintiff re-entered the hospital on April 15th and remained there until May 10, 1954.

The pipe and pump assembly had contacted the top wire to the transformer pole, and the pump spout had caught on it. Mr. Hamilton testified the pipe was in joints, 'two or three'; but they did not unjoint it, because they had no wrenches to take it apart. He thought the joints were short, probably 12 feet. The pipe and pump were measured later and were 31 feet and 2 inches in length, the pump being 12 to 18 inches long. The whole weighed about 100 pounds. When plaintiff was injured, 24 or 25 feet of pipe was above the hole in the roof, which was between 7 and 8 feet above the ground.

On March 25, 1954, plaintiff was 49 and Mr. Hamilton was 43 years old. He had worked for a utility company in 'high lines,' had known from the time he was 17 or 18 that electricity was dangerous, and had quit such employment because of his fear of electricity. Plaintiff worked for 'Sears Roebuck in Kansas City' from 1925 to 1946. She then worked for four years as a driver of a taxicab in Kansas City. She and Mr. Hamilton were married in 1946. After her marriage she drove a taxicab in Oklahoma. Her husband was in the United States Army and was ordered overseas. She went to New York and worked in the 'Sears telegraph office' for five months. She then joined her husband overseas. They purchased the farm soon after his discharge from the Army.

The Hamiltons had no telephone, only electric service. They knew electric service was furnished by means of wires strung on poles. When they purchased the farm, plaintiff secured the meter reading from defendant and checked the meter to see if the reading was correct. The lights and electric appliances in the house were operating properly. All of plaintiff's witnesses testified there was nothing obstructing the view of the wires and poles serving plaintiff's premises. Plaintiff testified with reference to the wires: 'Q. If you had looked up there, you could have seen them? A. Yes, they were in plain sight.' However, the testimony of plaintiff and her husband is to the effect that while they knew wires furnishing electric service were dangerous, each 'paid no attention' to the wires until after they were injured. Mr. Hamilton stated he had probably seen the wires, but when he got ready to pull the pump, that didn't enter his mind, 'didn't think about it all'; that 'Q. If you had seen the wire there you would have known it was dangerous? A. If I had seen the wire I would have known it was an electric wire and dangerous. Q. You didn't look to see? A. No.' If he had unjointed the pipe, it would not have come in contact with the wire. Asked if he took any precaution at all to keep the pipe from coming in contact with the electric wires, he answered: 'I said I didn't even know those electric wires were up there.' After the occurrence, Mr. Hamilton looked at the wire in question and could easily tell it was not insulated; but plaintiff could not tell whether the wires were insulated. Plaintiff's witness Otis Richardson, a neighbor, testified he had no trouble knowing which wires were insulated and which were not while standing on the ground; and that the distance from defendant's line to his yard pole, the location of which was not shown, was 60 steps and the wire was insulated.

Plaintiff, asked if she would have intentionally pulled the pump and pipe into the wires, answered: 'Absolutely not. Q. Why? A. Who wants to get hurt? Q. You knew it would be dangerous to do that? A. Why, sure.' She also testified: 'But I didn't realize there was a wire within a mile of that pump house because I hadn't paid any attention to it.' And: 'If I had an idea he [her husband] was going to put a pump into a live wire, I would have stopped him and so would anybody'; she would have warned him.

Plaintiff cites cases on the duty of an electric utility to exercise the highest degree of care to prevent injury to persons who lawfully might come in close proximity to its wires, Gladden v. Missouri Pub. Serv. Co., Mo., 277 S.W.2d 510, 515; Lebow v. Missouri Pub. Serv. Co., Mo., 270 S.W.2d 713, 715, and that the duty includes the insulation of the wires at places where workmen are likely to be injured from contact with them. Geismann v. Missouri-Edison El. Co., 173 Mo. 654, 678, 73 S.W. 654, 661; Ratliff v. Mexico Power Co., Mo.App., 203 S.W. 232, 234[1-3]; Williams v. City of Fulton, 177 Mo.App. 177, 164 S.W. 247.

It is stated in Atchison, T. & S. F. R. Co. v. Calhoun, 213 U.S. 1, 9, 29 S.Ct. 321, 323, 53 L.Ed. 671: 'But, even where the highest degree of care is demanded, still the one from whom it is due is bound to guard only against those occurrences which can reasonably be anticipated by the utmost foresight. It has been well said that, 'if men went about to guard themselves against every risk to themselves or others which might, by ingenious conjecture, be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things.' Polock, Torts, 8th ed. 41.'

There is no direct testimony on the height of the wire in question. From the length of the base and approximate...