Horn v. Kansas City Power & Light Co
| Citation | 274 S.W. 673 |
| Decision Date | 01 July 1925 |
| Docket Number | 24700 |
| Parties | HORN v. KANSAS CITY POWER & LIGHT CO |
| Court | United States State Supreme Court of Missouri |
Motion for Rehearing Denied August 1, 1925.
John H Lucas, Ludwick Graves, and William C. Lucas, all of Kansas City, for appellant.
Clif Langsdale, of Kansas City, for respondent.
Statement
The plaintiff brought this suit in the circuit court of Jaskson county against the defendant to recover $ 10,000 damages for the alleged negligence of the company in wrongfully causing the death of Frank Horn, the husband of the plaintiff.
The trial was had before the court and jury, which resulted in a verdict and judgment for the plaintiff for the amount sued for. After moving unsuccessfully for a new trial, the defendant duly appealed to this court.
Counsel for defendant in their statement of the case make the following admissions: That the plaintiff is the widow of Frank Horn, and brings this action for his death; that said Horn was a first-class lineman, and lost his life while in the employment of the defendant on July 21, 1920.
The charge of negligence was in these words: Frank W. Horn was a first-class lineman, and lost his life while in the employ of appellant on the 21st day of July, 1920, and respondent brought this action seeking a recovery therefor, alleging the relation of master and servant of the deceased, and negligence of master as follows:
'The assignment of negligence is that the bottom end of the pole being erected was not on the bottom of the hole dug therefor; that the diameter of the hole was greater than the diameter of the pole, and that the moving of the pole around the cross-arms might and would be likely to cause the pole to fall into and come in contact with him; that the defendant, so knowing, ordered and directed the deceased to move the pole around the cross-arm as aforesaid; that the butt end was not resting upon the bottom of the hole as aforesaid; and that the diameter of the hole was greater than that of the butt end of the pole.
'The answer was a general denial, assumption of risk and contributory negligence.'
The plaintiff's witnesses testified, among other things, to the following facts:
The appellant was engaged in the business of distributing electric current in Kansas City, Mo., and vicinity, and in such business maintained poles, overhead wires, and other paraphernalia common to such business. Frank Horn, the deceased, at the time of his death, and for some time prior thereto, was in the employ of the appellant as a lineman.
On the 21st day of July, 1920, appellant was engaged in setting a new wooden pole about 45 feet high near the southwest corner of Twenty-Seventh and Main streets in Kansas City. In furtherance of that work a hole had been dug at said place about 5 feet deep. This hold was about 3 feet wide at the top, 18 inches wide at the bottom. The hole had been dug through rock, and considerable difficulty had been experienced on account thereof in getting the hole to the desired depth and width. Main street at that place ran north and south, and Twenty-Seventh street ran east and west. The new pole which was to be placed in the hole was dragged from the south toward the hole, butt end first, to a point where the butt end was close to the hole. There were two other wooden poles on that corner at the time, one belonging to a telephone company, hereinafter called the telephone pole, and the other belonging to the appellant, hereinafter called the old pole. The old pole was located about 3 feet south of the telephone pole. The hole for the new pole was about 2 feet west of the center of a line drawn north and south from the telephone pole to the old pole. In other words, the three poles were located at the angles of a triangle; one side of the triangle being about 3 feet long, and running north and south between the old pole and the telephone pole, the angle represented by the new pole being about 2 feet west of the center of said 3-foot line.
After the new pole was dragged to the position above described, the top end was raised by means of block and tackle, which were attached to the telephone pole at a point about 30 feet up, and to the new pole, which was lying on the ground. The motive power was a team of horses. After the top of the pole was raised to a certain height, it was worked around under and between wires that were attached to cross-arms on the telephone pole and the old pole, and the butt end was pushed or shoved into the hole by groundmen working with pikes, which were poles 12 or 14 feet long, each with a sharp spike or instrument on the end which would stick into the wood. When the butt end of the pole went into the hole, it was discovered that the bottom of the hole was too small for the pole, and the pole was taken out and trimmed off. The butt end of the pole was again worked into the hole. The pole did not straighten up, but the top thereof was leaning toward the southwest, and it was hung upon or obstructed by a cross-arm which was attached to the old pole at a point about 8 inches from the top thereof. This cross-arm was what was known as a standard double six-pin cross-arm, and was about 8 feet long. This cross-arm ran east and west. There were six pins on the cross-arm -- three to the west of the pole and three to the east of the pole. These pins were for wire attachments. On the third pin or the one farthest west from the pole was an arc circuit wire, which was also in the way of and obstructing the passage of the top of the new pole around said cross-arm to its straightened-up position. This arc circuit wire was dead, and carried no current. This was the situation when the operation or activities commenced which resulted in the death of Frank Horn. In the gang which was in the employ of the appellant, and on the scene for the purpose of placing and erecting this new pole, were Frank Horn and other linemen, and groundmen and a foreman and a man who was in charge of the truck which had brought to the scene the supplies usually taken to a place of that sort for that kind of work by the appellant.
With the top of the new pole not straightened up, and extended to the southwest, and hung up on or obstructed by the said cross-arm, and with said arc wire in the way; the foreman of the appellant, one R. R. (Ray) Fawconer, ordered and directed the deceased, Frank Horn, to climb up and move the arc circuit wire from the third or westernmost pin to the pole pin or pin nearest to the pole on the west side, so that it would be out of the way of the passage of the new pole. Witness A. W. Murnahan testified as follows:
Cross-examination:
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Horn, in compliance with this order, climbed up the telephone pole, using his climbers (hooks attached to his legs), until he was about even with the top of the old pole. The telephone pole was about 55 feet high, and the old pole about 35 feet high. The arc wire, as above stated, was on a cross-arm that ran east and west, and that was attached to the old pole. Horn from his position on the telephone pole reached out, and with a pair of pliers released the arc circuit wire from the third pin on the cross-arm, and attached it to the pole pin or the one next to the pole. The arc circuit wire was then out of the way of the passage of the top of the new pole; but the top of the new pole was hung up on and obstructed by the west end of that cross-arm, the same cross-arm that the arc wire was attached to. The cross-arm, as above stated, was 8 inches below the top of the pole. Twenty-two inches below this cross-arm was another cross-arm, to which were attached primary wires which carried 2,300 volts of electricity. The foreman who was on the ground below then ordered Horn from his said position on the telephone pole to pull the top of the new pole around the obstructing end of the cross-arm.
The witness Murnahan testified as follows:
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Witness O. A. Elliott testified:
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