Hickman v. Union Electric Light & Power Co.

• Decision Date: 20 November 1920
• Docket Number: No. 20782.,20782.
• Citation: 226 S.W. 570
• Court: Missouri Supreme Court
• Parties: HICKMAN v. UNION ELECTRIC LIGHT & POWER CO.

226 S.W. 570

HICKMAN v. UNION ELECTRIC LIGHT & POWER CO.

No. 20782.

Supreme Court of Missouri, in Banc.

November 20, 1920.

Rehearing Denied December 13, 1920.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Clara H. Hickman against the Union Electric Light & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Jourdan, Rassieur & Pierce, of St. Louis, for appellant.

Bartley & Douglass, of St. Louis, for respondent.

BROWN, C.

This is an action by the widow of George H. Hickman for damages for the death of her husband, alleged to have been caused by the wrongful act and negligence of defendant on April 24, 1915. The suit was instituted in the circuit court for the city of St. Louis on September 16, 1915.

The plaintiff is a Missouri corporation engaged in supplying electric light and power to consumers in said city, transmitted by wires strung over the surface of streets, including Spring avenue, in which the accident occurred. The city, in pursuance of its powers, inaugurated the construction of a sewer beneath the surface of the street and had let the contract for the work to the Carter Construction Company, which sublet it to the Norton, Head & Denneen Construction Company, which proceeded with the work and employed the Sewel Well Company to drill holes in the street in connection with the alignment of the sewer, which it proceeded to do, using a drilling machine for that purpose. This machine consisted of a platform about 6 feet wide and 20 feet long resting upon wheels, upon which was mounted the machinery for the operation of the derrick and drill. The derrick was hinged to the front part of the platform, and when being transported was laid flat, projecting over the rear. It was about 40 feet long and stood at that height on the front of the platform when at work. It was raised by machinery to a position almost, but not quite, perpendicular. The top was then hauled forward and fastened in such a position that the drill beneath it would work about 2 feet in front of the platform.

On the morning of the accident the drilling machine had come to the place on Spring avenue Where the work was to be done. The defendant's wires were stretched upon poles set in the west side of the street. Whether there were other wires than its own on this line of poles does not appear, but it does appear that they were about 40 feet high, with three cross-arms, the lower one of which was about 26 feet from the ground, and carried four wires, two of them being on the side of the pole nearest the center of the street, which extended north and south. The one in question in this case was the inside or east wire. The voltage carried by the others is not mentioned in the record. That the east one was intended to and did carry a deadly current is admitted.

The line had been constructed several years before, and this wire was insulated. At the time of the accident the insulation had become defective. It had come off in places at this point so that the wire was bare. Some of these places were several inches in length, and a person with good eyesight could detect them from the ground by the difference in the size of the insulated and uninsulated portions. This condition is not denied. On the other hand, the defendant contends that it was so bad that it was negligence on the part of the deceased to attempt to handle the wire by which the derrick was moved in that vicinity.

The line of holes to be drilled was located in the street by the city engineer, the one in question being about 3 feet inside or east of this high-tension wire, and it was necessary to place the machinery so that the top of the derrick from which the drill was to be dropped should come over it. He also located the position of the machine. The drill crew consisted of the deceased, its foreman, Mr. Thompson, a workman, and Mr. Roberts, who died before the trial, his helper. Mr. Sewell, an officer of the well company, came in the morning to look at the place, and it was discussed whether the defendant's wires would be in the way in setting and properly anchoring the machine, but it does not appear that their condition with respect to insulation was mentioned, or that they were referred to in any other respect than their position. The machine was located diagonally in the street, the derrick fronting southwesterly over the proposed hole. It was run up to that position, the derrick was raised by the machinery nearly perpendicular, and a wire sand line passing over the top of the derrick was used to pull it forward to its position, where it was expected to anchor it with cables fastened at a lower point on the derrick. The sand line seems to have been payed out from a drum on the deck of the machine controlled by an iron lever. The deceased took his place at this lever, while Thompson and Roberts took hold of the sand line dangling in front and carried it out toward the southwest to bring forward the top of the derrick, intending to fasten it to a pole or post until it could be properly guyed. When they had gone forward about 50 feet, their sand line came into contact with the high-tension wire at a place where it was denuded of its insulation. Roberts, who had hold of the sand line nearest the derrick, was shocked so that he fell. Thompson, who held it near the end, does not seem to have felt the shock, while the deceased, who held the iron lever on the deck of the machine, was instantly killed. The current would seem not to have been well grounded through the men below the defendant's wire, but escaped in full force through the iron machine where the deceased was paying out the line.

After the accident the machine was properly anchored and the hole was drilled without moving it.

The petition, after fully stating the facts, charged:

"That said wire had, through the negligence and carelessness of the defendant, been permitted to become so out of repair, and the insulation thereof worn off and the dangerous current of electricity passing over and through the same liable to escape therefrom for a long time prior to April 24, 1915, the date of said injury and death of said George G. Hickman, which facts the defendant well knew, or by the exercise of ordinary care might have known, in time to have repaired said wire and thereby have prevented the said injury and death of said George G. Hickman."

The answer was a general denial with the following plea of contributory negligence:

"That Hickman had been warned not to fasten any guy wire on the west side of the street because of the danger of coming in contact with said high-tension wires, but said Hickman nevertheless carelessly and negligently directed the men working under his directions to fasten the wire to a pole on the west side of the street (being one of the poles carrying the transmission line), and thereby caused the guy wire to be brought in contact with defendant's high-tension wires. Defendant states that their negligence as aforesaid, acting under said Hickman's instructions, was the direct and proximate cause of said Hickman's injuries, or contributed thereto."

This was denied by reply. At the close of all the evidence defendant asked an instruction in the nature of a demurrer to the evidence, which was refused, and thereupon the plaintiff asked an instruction numbered 1, which, after setting forth the physical facts to be found by the jury, proceeded:

"And if you further find from the evidence the defendant permitted its said wire at the place where the guy wire or sand line came in contact with it, if you find it did so come in contact with it, to become so defective and insulation so worn off as to allow electricity to escape therefrom, and if you further believe and find from the evidence taht defendant knew of the defective wire, or by the exercise of ordinary care could have known of it, in time by the exercise of ordinary care to have repaired it, then under these circumstances the defendant is guilty of negligence, and your verdict will be for plaintiff."

The court then refused the request of de. fendant to instruct the jury as follows:

"No. B. The court further instructs you that the fact that the derrick could only be set in one certain position raised in a particular manner and the sand or guy line pulled in a certain direction to accomplish the work plaintiff's husband was required to do, and that he followed such course for the purpose of performing his duty as he had been directed and was required, yet if you believe in so doing plaintiff's husband knew of the danger and existence of said uninsulated wire, if you find such, and saw or by the exercise of ordinary care could have seen that said wire was uninsulated, if you find such, and yet hoisted or attempted to hoist said derrick above and in close proximity of said wire and directed the men under his control to pull said derrick up by a sand line or guy wire attached to the top of said derrick which would extend downward across and in close proximity to said transmission wire where it would likely come in contact with the same, then your verdict must be for the defendant.

"No. C. Even though you find from the evidence that defendant neglected and allowed its transmission wire on Spring avenue north of Chouteau avenue to become uninsulated, yet if you further find from the evidence that said uninsulated wires were at a point 25 feet or more above the ground and free from any liability of contact with persons using Spring avenue for usual and ordinary purposes, and if you further find that defendant had no knowledge of the fact that Hickman was going to raise the well-drilling derrick and its equipment in question above and in close proximity to its said wires, and said defendant from all the facts and circumstances could not have anticipated the erection of said derrick and equipment above and in close proximity to its wires, then your verdict must be for defendant."

The appellant...