Hawn v. The Kansas Gas and Electric Company

• Decision Date: 08 January 1927
• Docket Number: 27,041
• Citation: 122 Kan. 395,252 P. 245
• Parties: JOE HAWN, Appellee, v. THE KANSAS GAS AND ELECTRIC COMPANY, Appellant
• Court: Kansas Supreme Court

252 P. 245

122 Kan. 395

JOE HAWN, Appellee, v. THE KANSAS GAS AND ELECTRIC COMPANY, Appellant

No. 27,041

Supreme Court of Kansas

January 8, 1927

Decided January, 1927.

Appeal from Crawford district court, division No. 2; GEORGE F BEEZLEY, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. HIGHWAYS -- Regulation of Structure Moving -- Statute Considered. The statute regulating the moving of houses, buildings, derricks, and other structures, upon or across public highways over which telegraph, telephone, electric light or electric power wires are suspended, was enacted in the interest of the public welfare generally, and was designed in part to prevent loss of life and bodily injury in the adjustment of wires to permit moving structures to pass.

2. ELECTRICITY--Injury to House Mover on Highway--Failure to Comply with Statute-Liability. A house mover, whether employer or employee, who, without observance of the regulations, undertakes to lift a wire suspended over a highway intersection, to permit a moving building of statutory height to pass, engages in unlawful conduct, and takes the risk of consequential bodily injury.

E. H. Henning and A. M. Etchen, both of Kansas City, for the appellant.

T. J. Karr, Emma M. Karr, both of Girard, and A. J. Curran, of Pittsburg, for the appellee.

OPINION

BURCH, J.:

The action was one for damages for personal injury to a house mover who came in contact with an electric wire which was suspended above the highway on which he was moving a house. The answer pleaded noncompliance with the statute regulating the moving of houses upon highways over which electric power wires are strung. A demurrer to the answer was sustained, and defendant appeals.

The accident occurred at the intersection of two highways, one extending north and south and the other extending east and west from the intersection. On the east side of the north-and-south highway were poles supporting three high-voltage wires, which the petition alleged were twenty-two feet from the surface of the highway, and were uninsulated. At the south side of the east-and-west highway were poles supporting insulated wires suspended some distance beneath the high-tension wires. From a pole at the southeast corner of the highway intersection, two insulated service wires extended in a northwesterly direction across the intersection. The petition alleged these wires were only fifteen feet above the surface of the highway. Plaintiff was assisting Joe Reddick in moving the house. The house was mounted on trucks drawn by an engine, which came from the south, and which turned east on the highway intersection. Plaintiff was on top of the house, and while attempting to lift the two insulated service wires, he came in contact with or near to the upper high-voltage wires, and was injured.

The wires belonged to defendant. The answer denied that the service wires were only fifteen feet from the surface of the highway, alleged that the high-voltage wires were twenty-five feet from the ground, and alleged that the house extended to a height of sixteen feet or more after it was placed in final position for moving on the highway. The statute provides that no one shall move any house, building, or derrick of that height, upon or across any rural highway on which telephone, telegraph, electric light, or electric power wires are strung, without first obtaining a permit to do so. (R. S. 17-1914.) Permits are issued by the county clerk, on application and payment of a fee. If it will be necessary to cut, move, raise, or in any way interfere with the wires, the applicant must state the name of the owner of the wires and the time and place of the necessary interference. (R. S. 17-1915.) The county clerk shall then give twenty-four hours' notice to the owner, and after service of notice it becomes the duty of the owner to furnish competent workmen or linemen to do whatever is necessary to facilitate moving of the house. Persons engaged in moving houses are forbidden to interfere with wires unless the owner, after notice, refuses to raise or cut them, and in that event, the house mover shall employ none but competent and experienced workmen or linemen to do the work. (R. S. 17-1917.) Provision is made for paying the expense of moving poles and raising and cutting wires to allow structures to pass, and two sections of the statute read as follows:

"It shall be unlawful for any person, firm, or corporation engaged as principal or employee in moving any house, building, derrick or other structure, as provided in the above sections, upon, across, or over, any public highway outside of the limits of any incorporated city, to move, touch, cut, molest, or in any way interfere with any telephone, telegraph, electric light or electric power wires or any poles bearing any such wires, except under and in compliance with the provisions of this act.

"Any person violating the provisions of this act shall be deemed guilty of a misdemeanor, and shall upon conviction thereof, be punished by a fine of not more than $ 100, or by imprisonment in the county jail for not more than sixty days, or by both such fine and imprisonment." (R. S. 17-1918 and 17-1920.)

Plaintiff contends this statute was enacted for the single purpose of protecting the property of telephone, telegraph, electric light and electric power companies from damage by building and derrick movers, and had no public aspect beyond suppression of this species of interference with private property. The case of La Dow v. Oklahoma Gas and Electric Co., 28 Okla. 15, 119 P. 250, is cited in support of the contention. That case involved a city ordinance which forbade, under penalty, interference with electric wires without a permit from the owner of the wires, and the court held the ordinance was one to protect property from mischievous molestation.

As the result of needs arising in the economic development of the state, buildings were frequently moved from site to site, in both city and country. Occasionally, as the result of construction of a railroad, or location of a county seat, all the buildings of a town would migrate. After a mine in a particular locality was worked out, the mining community would move, taking their buildings with them; and in the mineral district it became a common practice to move houses derricks, and other tall structures from place to place over the country roads. When this court was called on to define the nature of this use of roads and streets, the...