Harrison v. Kansas City Electric Light Co.

• Decision Date: 30 March 1906
• Citation: 195 Mo. 606,93 S.W. 951
• Parties: HARRISON v. KANSAS CITY ELECTRIC LIGHT CO.
• Court: Missouri Supreme Court

93 S.W. 951

195 Mo. 606

HARRISON v. KANSAS CITY ELECTRIC LIGHT CO.

Supreme Court of Missouri, Division No. 1.

March 30, 1906.

1. NEGLIGENCE—COMPARATIVE NEGLIGENCE.

The doctrine of comparative negligence does not obtain in Missouri.

2. ELECTRICITY — PERSONAL INJURIES — CONCURRENT NEGLIGENCE.

Defendant electric company having knowledge that an electric light wire was grounded directed its servant, while the current was off, to locate and remedy the defect. The lineman only tested two miles of the circuit, which was 20 miles long, and, though he failed to discover the trouble, reported the line O. K. On the afternoon of the same day, decedent's son, knowing that the wire had become uninsulated, "grounded" the same by attaching a copper wire thereto and turning the wire around a tree, thus making two "grounds" or a dangerous short circuit. The wire came in contact with a cable tied to the tree and used as a swing, and decedent, without knowing the danger, was killed the same evening by coming in contact with the cable. Held, that defendant was guilty of negligence concurrent with that of decedent's son, in turning electricity into the wire without knowing that the same had been grounded, which was the proximate cause of decedent's death, rendering defendant liable therefor.

3. TRIAL—INSTRUCTIONS—ASSUMPTION AS TO FACTS.

Where, in an action for death caused by a grounded electric light current, it was admitted that the current was not dangerous unless two "grounds" existed, and there was evidence that an abrasion of the insulation from the wire from which the electricity escaped existed for at least a month before the date of the accident, an instruction requiring the jury to find whether or not defendant had exercised reasonable care and prudence in ascertaining and remedying such condition, if it existed, was not objectionable as assuming that two "grounds" existed.

4. SAME—CONSTRUCTION.

Where, in an action for death caused by an escaping electric current, an instruction required the jury to find that the current was transmitted "under the circumstances aforesaid as claimed by plaintiff to have existed," such instruction was based on the prior predicates stated therein, and was not objectionable as permitting the jury to find defendant liable if they found that the current was transmitted under the circumstances claimed by plaintiff, without specifying such circumstances.

5. DEATH — ACTIONS — INSTRUCTIONS—PROXIMATE CAUSE.

In an action for death, an instruction specifying all the facts which the jury were required to find in order to make defendant liable, and then charging that if the jury found that the diversion of the electric current in question was the proximate cause of deceased's death, and that such death was due to a want of ordinary care and prudence on the part of defendant and its employés under all the circumstances found by the jury to exist, etc., was not objectionable because it left it to the jury to determine the proximate cause of the death.

6. APPEAL — RULINGS ON EVIDENCE — HARMLESS ERROR.

Where the court admitted certain evidence, but afterwards excluded it as inadmissible, error, if any, in admitting it, was cured.

7. SAME.

Where, in an action for death by an escaping electric current, it appeared that defendant was negligent in failing to ascertain whether the line was "grounded" before it turned a current of electricity into a trunk line from which it was distributed into the various lamp route lines including the line from which the current escaped, defendant was not prejudiced by the admission of evidence that if the line of wires had been provided with loops so that when trouble, or a "grounding" of the current, was found, that portion of the system might be disconnected from the balance, the accident might not have occurred.

Appeal from Circuit Court, Jackson County; Jas. Gibson, Judge.

Action by Susie B. Harrison against the Kansas City Electric Light Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Harkless, Crysler & Histed, for appellant. Morgan & Schibsy and Boyle, Guthrie & Smith, for respondent.

MARSHALL, J.

This is an action under the statute for $5,000 damages for the death of plaintiff's husband, on the 24th of April, 1902, caused by an electric shock from the defendant's wire in Kansas City, Mo. The action is by the widow. A prior action had been brought by the widow within six months after the death, in which the plaintiff suffered a nonsuit, and this action was brought within one year thereafter, as allowed by the statute. There was a judgment for the plaintiff for $5,000, and the defendant appealed.

The issues:

The petition alleges the relation of the plaintiff to the deceased, and his death on the day stated, the fact of such prior suit, nonsuit, and the institution of this action within the statutory time, the incorporation of the defendant; that it owned a certain electric power house and electric light circuits connected therewith in Kansas City, used by it for the purpose of lighting the streets of said city; that it was the duty of the defendant to maintain and operate the same, as far as ordinary and reasonable care would avail therefor so that the same should be in a reasonably safe condition and not liable to endanger lives and property of others. The negligence charged in the petition is as follows: "That on and for some time prior to about the 24th day of April, 1902, a certain of said arc light circuits owned and operated by the defendant company, and known, as plaintiff is informed, as circuit No. 32, was in a dangerous and defective condition in that it was `grounded'; that is to say, that on account of defects in the insulation of said circuit, the wire or wires on said circuit had come into electrical contact with the earth at some place or places to plaintiff unknown, so that upon said circuit becoming grounded at any other place or places, a heavy and dangerous volume and charge of electricity was liable to pass from said circuit to and through any person or persons who might be situated that said charge of electricity should pass through the body of such person or persons and through the earth in what is commonly known as a "short circuit" and thereon back to said circuit through such other grounded connection or contact, to the serious or fatal injury of the person so affected, and who are liable to come into contact with the current so recklessly released and discharged from said circuit and its proper course, without knowledge or notice that said current was being so diverted and discharged. That by reason of said circuit being so grounded on or about and prior to April 24, 1902, at some place or places to plaintiff unknown, conditions so arose that the wire of said circuit at and near the place of residence of the plaintiff and her deceased husband came in contact with trees near and adjacent and contiguous to which the defendant had carelessly strung the wire of such circuit, so as to burn said trees, including a tree upon the premises of the plaintiff and her deceased husband; that the volume of electricity passed along the wire or wires of said circuit or circuits was such as when diverted and passed through an inferior conductor, such as the wood of trees, or the human body, would, in passing through the same, burn said wood, and injure or destroy the life of such human being or beings. That on or about the 24th day of April, 1902, the said circuit being `grounded' as aforesaid, at some place or places to the plaintiff unknown, and other than at the place immediately hereinafter described, upon the premises of the plaintiff and her deceased husband, Harold, the infant son of the deceased, who knew nothing of the danger of electricity, having discovered that one of the trees upon the premises of the plaintiff and her deceased husband had been burned by the contact of such tree with the wires of said circuit, which was defectively and insufficiently insulated through the carelessness and negligence of the defendant in locating same, so that same was liable to abrasion and destruction, in order to save said tree from further injury, at about the hour of 4:30 o'clock in the afternoon, connected to the wire of said circuit of the defendant, at a place where same was endangering and injuring said tree through such defective insulation, a small copper wire, and continued said copper wire into contact with the ground. That upon the said tree aforesaid there was suspended a swing for the pleasure of the plaintiff's children, constructed of a hanging loop of wirecable suspended from two points of support on a limb of said trees, and supporting a wooden seat in which said children, and others, were accustomed to swing. That said wire cable, so made into said swing, was longer than was necessary for such purpose, and the loose end thereof was wound around the limb of said tree, and down to and around the trunk of said tree, before reaching the ground. That said Harold, after so connecting said copper wire, as aforesaid, conducted the same from said tree down and around the trunk of said tree, so as to bring same in contact with the wire of said cable and bring said cable into electrical contact with the wire of said circuit. That said copper wire being so conducted to and into the ground, the charge of electricity discharged from said circuit passed harmlessly along and through said wire, down and into the ground and through the ground to some other place or places to the plaintiff unknown, to where the circuit was `grounded,' back into said circuit and through the same returned to the power house of the defendant. That about the hour of 7:25 o'clock in the evening of said day, said Harold noticed that said copper wire or the wire of said circuit of the defendant was again burning said tree where same came into contact therewith, and, in an endeavor to prevent the further injury to said tree, cut off said...