Henderson v. Kansas Power & Light Co.

• Citation: 339 P.2d 702,184 Kan. 691
• Decision Date: 16 May 1959
• Docket Number: No. 41311,41311
• Parties: Walter HENDERSON, Appellant, v. KANSAS POWER & LIGHT COMPANY, a Corporation, Appellee.
• Court: Kansas Supreme Court

Page 702

339 P.2d 702

184 Kan. 691

Walter HENDERSON, Appellant, v. KANSAS POWER & LIGHT COMPANY, a Corporation, Appellee.

No. 41311.

Supreme Court of Kansas.

May 16, 1959.

Rehearing Denied July 13, 1959.

Syllabus by the Court

The record in an action to recover damages for personal injuries sustained by plaintiff when electricity from defendant's high-voltage power line jumped or arced into the mast portion of a television antenna while he was assisting in turning it, examined and held: That the specific acts of negligence alleged in the amended petition were established by plaintiff's evidence as set forth in the opinion; that plaintiff was not guilty of contributory negligence as a matter of law, and it was error for the trial court to sustain defendant's demurrer to plaintiff's evidence.

Wendell L. Garlinghouse, Topeka, argued the cause, and Warren W. Shaw, William Hergenreter, Carl Quarnstrom and Elwaine F. Pomeroy, Topeka, were with him on the briefs for appellant.

Robert E. Russell, Topeka, argued the cause, and Clayton E. Kline, M. F. Cosgrove, Willard N. VanSlyck, Jr., William B. McElhenny, O. R. Stites, Jr., and James L. Grimes, Jr., Topeka, were with him on the briefs for appellee.

FATZER, Justice.

This was an action to recover damages for personal injuries sustained by plaintiff when electricity from defendant's high-voltage power line jumped or arced into the mast portion of a television antenna when plaintiff was assisting in turning it.

In a previous appeal (Henderson v. Kansas Power & Light Co., 181 Kan. 625, 313 P.2d 257) it was held that plaintiff's amended petition stated a cause of action. The amended petition was summarized in that opinion and will not be repeated here except to say it alleged plaintiff's injuries were caused by defendant's negligence in (1) maintaining high-tension electrical wires over private property without the permission of, and without obtaining an easement from, the owner when defendant knew, or in the exercise of due care should have known, that such electrical wires created a highly dangerous hazard; (2) erecting and maintaining the power line in a residential area without insulating the electric wires; (3) maintaining the power line without posting warning signs as to its nature and extreme dangers, and (4) erecting and maintaining the power line at a height insufficient to avoid contact with a radio or television antenna.

Following judgment in the former appeal, defendant filed an amended answer denying all of the material allegations of the amended petition and alleged that any injuries sustained by plaintiff were caused by his own negligent acts and omissions. By reply plaintiff denied all allegations in the answer inconsistent with those alleged in the amended petition.

With the issues thus joined, trial by jury was commenced. At the close of plaintiff's case, the trial court sustained defendant's demurrer to the evidence, stating there was not sufficient evidence to show that any of the alleged acts on the part of the defendant were in fact negligent and the evidence did not prove that such acts were the cause of plaintiff's injuries. Hence, this appeal.

Evidence most favorable to plaintiff is summarized: On Sunday, September 26, 1954, the defendant maintained a 33,000 volt, three-phase electric power line located along the north side of an alley running parallel to 6th and 7th streets in Topeka, the portion here involved is between Lake and Chandler streets. The alley is adjacent to the residential property known as 609 Lake street owned by A. W. Voigt. The house faces east and the south side abuts the alley; the rear (west) portion is constructed with a story and a half airplane type roof and at the highest point is 22.4 feet above the top of the foundation which is one or two feet above the ground. The southwest eave overhangs into the north side of the alley about a foot, however, the southwest corner of the house is approximately one inch north of the alley line. Voigt had owned the property since 1897 and had never given defendant permission or an easement to maintain the line over his property although he had known for many years the wires overhung his house.

The power line was installed in 1926 and originally carried 13,200 volts although it was built to carry 33,000 volts and was carrying that voltage at the time of the accident. Two power line poles were in the alley in the immediate vicinity of the house. From the top of the foundation, the height of the top wire on the east pole was 45.7 feet and the lower wire was 41.6 feet. With respect to the west pole, the top wire was 43.9 feet above the top of the foundation and the lower wire was 39.8 feet. The two north electric wires (one being the lower wire) directly overhung the south portion of the roof and encroached upon Voigt's property about 1.2 feet, thus the lower wire was 16.1 feet above the highest part of the roof. Following the accident and in September 1955, the power line was removed at Voigt's request.

Prior to the erection of the television antenna, a platform 14 inches high had been constructed at the rear of the house upon which the antenna pole was mounted. The width of the house at the rear was 20 feet and the platform was located approximately 9.6 feet from the south or alley side of the house and 10.4 feet from the north side.

The antenna pole consisted of four 10-foot sections of telescoping pipe which fitted into each other and overlapped six to seven inches at each joint, making the full height of the antenna when placed upon the platform 39 feet 8 inches above the ground. An antenna mast with horizontal arms extending 44 inches was fastened to the pole. The guy wires were attached to a guide ring on the pole at the bottom edge of the top section, which were fastened, one to the northeast corner of the airplane roof, one to the southeast corner, and the third to a little shed directly west. The pole fitted into a base on the platform, which was fastened by setscrews to stabilize and prevent it from turning. It was attached to the house with a roof clamp.

The antenna was installed on Saturday, September 25, 1954, by the plaintiff and one Herschel Starling who had sold it to Joe Redman. Redman resided in the 609 Lake street property at that time, and was a son-in-law of Voigt. Plaintiff was regularly employed by the City Water Department at a salary of $255 per month. He was a brother-in-law of Starling, and assisted him in the installation of television sets and antennas.

On the following morning, September 26, 1954, plaintiff and Starling had made a call and on their way home decided to stop and see how Redman's television was operating. After a conversation about the reception, plaintiff, Starling and Redman went around to the back of the house to turn the antenna 'into the channel more' to get better reception from the Kansas City stations. Starling loosened the setscrews and attempted to turn the antenna pole but could not do so. He asked plaintiff and Redman to help him. They were about four or five feet away at that time. The antenna pole was not leaning in either direction and the guy wires were not loose. When they walked up and took hold of the pole to help turn it 'there was a terrific explosion' and plaintiff was knocked unconscious. Starling and Redman were killed by electrocution and plaintiff sustained severe electrical shock and burns resulting in permanent partial disability and permanent disfigurement.

At the trial plaintiff testified he had never been to the Redman premises prior to September 25, 1954, and on that date he attached the two guy wires to the roof of the house; that he just 'casually noticed' the power lines and knew they were electric wires, but they did not particularly attract his attention, they were 'only wires on poles.' He stated he did not know they overhung the top of the house but assumed they were in the alley where they were supposed to be.

Several witnesses in the neighborhood who had frequented the alley for as many as 30 years testified there were no warning signs on the power line poles or at any other place in the alley warning of the extreme danger of the high-voltage power line at the time of the accident, and that they had never observed any such signs. There were numerous other electric and telephone wires in the alley and immediate area.

David E. Shaad, a licensed general consulting engineer, testified as an expert witness for plaintiff that the 33,000 volt power line could have been constructed on poles other than with the 'T' type of crossarm used by defendant; that it could have been constructed on an 'H' type structure with two poles and a cross member, or on a side-arm or alley-arm structure, which would have prevented the electric wires from being over Voigt's property. That is the purpose of the 'H' or alley-arm type structure and hardware was available for that type of construction. He further testified that the electric wires carrying 33,000 volts could have been insulated so as to prevent the escape of electricity even though they might come in close proximity to, or in actual contact with, a grounded metal object, and that they could also have been insulated and installed under ground. In answer to a hypothetical question he stated that in his opinion the current that caused the explosion and electrical shock and burns to the men could have come only from the 33,000 volt power line.

In determining the sufficiency of plaintiff's evidence as against defendant's demurrer, the elementary rule is that it is to be considered in the light most favorable to the plaintiff, resolving all inferences in his favor, disregarding that which is unfavorable and not weigh any part that is contradictory, or any differences between direct and cross-examination, and if there is any evidence which sustains plaintiff's case on any theory, the demurrer must be overruled (Creten v. Chicago, Rock Island & Pac....