Hoffman v. The Leavenworth Light

• Decision Date: 07 February 1914
• Docket Number: 18,266
• Citation: 138 P. 632,91 Kan. 450
• Court: Kansas Supreme Court
• Parties: JOHN HOFFMAN et al., as Next of Kin, etc., Appellees, v. THE LEAVENWORTH LIGHT, HEAT & POWER COMPANY, Appellant

138 P. 632

91 Kan. 450

JOHN HOFFMAN et al., as Next of Kin, etc., Appellees, v. THE LEAVENWORTH LIGHT, HEAT & POWER COMPANY, Appellant

No. 18,266

Supreme Court of Kansas

February 7, 1914

Decided January, 1914

Appeal from Leavenworth district court; JAMES H. WENDORFF, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEATH -- Occurring on Military Reservation -- Electric Current--Liability of Electric Power Company. The statute (Civ. Code, § 419) providing for the recovery of damages for death caused by wrongful act was in force before the passage of the act ceding to the United States jurisdiction over the Fort Leavenworth Military Reservation (Laws 1875 ch. 66, Gen. Stat. 1909, § 4584), and it is no defense to an action to recover such damages against a power company supplying an electric current for arc lighting on such reservation that the death occurred thereon.

2. SAME--Power Company--No Control of Wires or Poles on Reservation -- Not Liable for the Negligent Management Thereof. When such power is simply furnished to a responsible party for use in a system of poles, wires and appliances owned and controlled by such party and in proper condition to receive the current safely, the furnishing party is not required to maintain inspection or to see at its peril that such equipment is kept safe, but so long as not chargeable with knowledge of some defect therein it may assume that such safety will be maintained, and the fact that in furnishing such power for arc lighting the seller undertakes to supply and maintain the necessary lamps and carbons does not change the rule. In order to hold the seller liable it must appear that it continued to furnish and turn on the current after knowing that the purchaser had permitted the equipment to become defective.

Floyd E. Harper, of Leavenworth, for the appellant.

F. P. Fitzwilliam, of Leavenworth, for the appellees.

OPINION

WEST, J.:

The plaintiffs recovered a judgment for the death of their minor son caused by a shock of electricity received by touching a windlass attached to an electric light pole situated on the Fort Leavenworth Military Reservation. The defendant was under contract with the government to furnish the electric current for illuminating and small motor purposes on such reservation, such current to be furnished at such times and places and in such quantities as required by the service and as directed by the officer in charge. The current for arc lamp exterior lighting was to be paid for at a flat rate, and the company was to maintain transformers or regulators at its power house so as to furnish the proper power for the lamps in use, and to supply, maintain and trim all arc lamps used for street lighting. The electricity furnished under this contract, regulated by the transformers, was a current transmitted to the lamps upon the reservation, returning thence to the company's power plant. The light pole where the injury occurred is located upon a thoroughfare or public highway and upon the reservation, near the intersection of this highway and one of the city streets. It appears that from one of the wires on the pole in question the insulation had worn off and the wire had become looped over an iron step on one side of the pole, and the chain of the windlass by which the arc light was raised and lowered coming in contact with such step became charged with electricity, and the deceased touching the windlass received the shock from which he died. An employee of the defendant attended to the care and maintenance of the lamps, trimming them about once in seven days. He had the use of a crank with which to lower and raise the windlass but was not shown to have any further duty than the care of the lamps. He stated that if anything was out of order he informed the post electrician, but there was no showing that he had any instructions so to do.

Two principal contentions are made, first, that the action can not be maintained because the death occurred on the reservation, which is under the exclusive jurisdiction of the United States; and second, that having no contractual right to inspect or repair the equipment belonging to the government the defendant can not be held liable for a defect therein.

Section 8 of article 1 of the federal constitution provides that congress shall have power to exercise exclusive legislation in all cases whatsoever over all places purchased by the consent of the legislature of the state in which the same shall be for the erection of forts, magazines, arsenals, dock yards and other needful buildings. The reservation in question was not acquired in this way, but jurisdiction was ceded by chapter 66 of the Laws of 1875 (Gen. Stat. 1909, § 4584). This act saved to the state the right to serve civil and criminal process within the reservation in suits or prosecutions for or on account of rights acquired, obligations incurred or crimes committed in the state but outside the cession and reservation. It saved also to the state the right to tax railroads, bridges and other corporations, their franchises and property, on such reservation. Jurisdiction of the state in criminal matters was asserted before the act of cession in Clay v. The State, 4 Kan. 49. Afterwards, in Ft. L. Rld. Co. v. Lowe, Sheriff, 27 Kan. 749, it was held that the state could tax railroad property on the reservation, and in C. R. I. & P. Rly. Co. v. McGlinn, 28 Kan. 274, this court decided that the railroad fence or stock law of 1874 was in force there. In Fort Leavenworth R. R. Co. v. Lowe, 114 U.S. 525, 29 L.Ed. 264, 5 S.Ct. 995, the decision in 27 Kan. 749 was affirmed, and it was held that on such reservation the buildings, appurtenances and instrumentalities used by the government will be free from any such interferences and jurisdiction from the state as would destroy or impair their use for the purposes designed, but when not so used the legislative power of the state over the places acquired will be as full and complete as over any other place within her limits. (p. 539.) It was also said that the cession of jurisdiction was not of exclusive legislative authority over the land except so far as necessary for its use as a military post. (p. 542.) In Chicago & Pacific Railway Co. v. McGlinn, 114 U.S. 542, 29 L.Ed. 270, 5 S.Ct. 1005, the decision in 28 Kan. 274, was affirmed, and it was held that the cession of jurisdiction was not of exclusive legislative authority over the land except so far as necessary for its use for a military post, and that as when the cession was made the state law made railroad companies whose roads were not enclosed by lawful fence liable for animals killed or wounded, the act remained in force after the cession. It was said that this law was as necessary after the cession as before, and was no more abrogated thereby than "regulations as to the crossing of highways by the railroad cars, and the ringing of bells as a warning to others of their approach. . . . The liability of the railroad company for the killing of the cow did not depend upon the place where the animal was killed, but upon the neglect of the company to enclose the road with a fence which would have prevented the cow from straying upon it." (p. 547.) An elaboration of the doctrine announced in the decisions already referred to may be found in Crook, Horner & Co. v. Old Point Comfort Hotel Co., 54 F. 604, and Divine v. Bank, 125 Tenn. 98, 140 S.W. 747. (See, also, Delamater v. Folz, 3 N.Y.S. 711, 50 Hun 528.) The statute under which the action was brought was likewise in force before the act ceding jurisdiction was passed, and no reason is apparent, either in principle or upon authority, why if the defendant company was guilty of negligence in conducting its work upon the reservation it would not be liable. Railroads and other common carriers conveying passengers could hardly expect to escape liability for negligence occurring upon the land covered by the act of cession, such effect not being within the purview or purpose of such act.

There are two theories and two lines of decisions touching the question of the defendant's liability. One is that by the act of furnishing for use so dangerous a force as an electric current a party is bound to know that the poles and wires over which it is to be conveyed are in such condition that the furnishing of such current will not endanger life or limb. The other is that the one who provides and controls the apparatus and equipment over which the current is conveyed is bound to attend to their safety, and that its mere supply to such party does not render the party supplying it responsible for the condition of such apparatus and equipment. The cases chiefly relied on by the defendant in support of the latter contention are Minneapolis General Electric Co. v Cronon, 166 F. 651, 20 L. R. A., n. s., 816; Gas & Electric Co. v. Speers, 113 Tenn. 83, 81 S.W. 595; Nat. F. Ins. Co. v. Denver Consol. E. Co., 16 Colo.App. 86, 63 P. 949; and Fickeisen v. Electrical Co., 67 W.Va. 335, 67 S.E. 788, 27 L. R. A., n. s., 893. In the first of these cases the widow of the deceased sued to recover damages for a death caused by coming in contact with an electric wire suspended from the wall or ceiling of a blacksmith shop to which was attached an electric bulb for use in shoeing horses. When not in use the wire was hung on a nail driven into the side of the wall. The shop had caught fire and the deceased had entered and was trying to extinguish it when he lost his life. The inside wiring of the shop was done under an independent contract by the electric company three years before the accident and became the private property of the owner of the building. The use of the suspended wire was for his own convenience and the manner...