Kellerman v. Kansaa City Long-Distance Telephone Co.

• Decision Date: 24 May 1915
• Docket Number: No. 11520.,11520.
• Citation: 189 Mo. App. 506,176 S.W. 1059
• Parties: KELLERMAN v. KANSAS CITY LONG-DISTANCE TELEPHONE CO.
• Court: Missouri Court of Appeals

176 S.W. 1059

189 Mo. App. 506

KELLERMAN v. KANSAS CITY LONG-DISTANCE TELEPHONE CO.

No. 11520.

Kansas City Court of Appeals. Missouri.

May 24, 1915.

Appeal from Circuit Court, Clay County; Frank P. Divelbiss, Judge.

Action by Troy Kellerman against the Kansas City Long-Distance Telephone Company. From a judgment for plaintiff, defendant appeals. Reversed.

Martin E. Lawson, of Liberty, and Hogsett & Boyle, of Kansas City, for appellant. Simrall & Simrall, of Liberty, and Hamilton & Herndon, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff, an expert splicer of long-distance telephone cables, was at work with another splicer on a platform suspended from the steel leader by ropes, when one of them broke, allowing the platform to tip, and the plaintiff to slip off and fall to the ground. He brought this suit to recover damages for his injuries; and, upon obtaining judgment, defendant appealed.

Plaiatiff was sent, in company with his associate splicer, from Kansas City to repair a place in the load telephone cables that had been burned out by a fire in Excelsior Springs. They took their small tools with them, but the larger and heavier tools and appliances were to be supplied by the defendant's local manager after they got there. The two experts were to learn what work was to be done and do it in their own way. Upon their arrival at Excelsior Springs they were shown the place where the cables had been destroyed and which were the busiest or most used cables; it being customary to repair them first. Plaintiff asked McCracken, the local manager at Excelsior Springs, about the platforms and ropes. McCracken told him there were two platforms at the job. Plaintiff looked at them, and found that one of them was defective, and refused to use it, and asked McCracken for lumber with which to make a new one. McCracken showed him some lumber at the telephone office, but plaintiff declined to use it, so McCracken, without objection, ordered new lumber for a platform, and it was constructed. McCracken told plaintiff he would provide the ropes later, that he had rope, and did not want to go to the expense of buying new if he could use rope he had. Plaintiff told him that was all right, if the rope he had was good. Plaintiff and his associate splicer then began their work of mending the cables on the ground, "tagging out" those that were down. During the day McCracken came by there several times, and plaintiff says he asked about getting ropes for the platform, and that McCracken said he would see to it, and later said Foster, the wire chief, would attend to getting the ropes. When plaintiff's work had progressed to the point where he would use the platform, he spoke to Foster at out ropes. Foster said he did not know anything about new ropes, but sent a young man with plaintiff to the basement to look over the old ropes they had there. Plaintiff looked them over, and picked out the only piece that was long enough. He did not like the rope, thought it was not safe, and asked the boy where McCracken was. He, however, made no complaint to the boy, nor did he put forth any effort to communicate with McCracken by calling him up over the phone or otherwise. He went back to the scene of his work, which was near the local office, and it seems that plaintiff was in the office, but the office force had gone home, it being near the close of the day. He made no other effort to see McCracken or Foster, although he says the reason he asked the boy where McCracken was was because he wanted a new rope. Plaintiff rigged the platform with the rope he had obtained in the basement, and fastened the platform to its place in the air slightly under the suspended cables which were to be repaired. He worked thereon for several hours and came down for lunch, and then the platform was hauled up again, and the two men got on it to work. After being up there about half an hour, the rope broke, and caused plaintiff to fall.

In considering the question whether plaintiff is entitled to recover, we must, of course, consider it solely from plaintiff's side, since the verdict is in his favor, and plaintiff must be given the benefit of every inference the testimony will bear. Therefore, in speaking hereafter of what the evidence shows, it is understood that we mean plaintiff's evidence.

Plaintiff was an expert cable splicer of ten years' experience, which made him thoroughly familiar with work on the platforms and the dangers connected therewith, their construction, the character and the proper arrangement of the ropes and appliances connected therewith. He was doing his work in his own way, and not under the directions of any one. The local manager of the telephone exchange did not control him or direct him as to the details of the work. Plaintiff testified that, when he went to Excelsior Springs to do this job of splicing, the manager told him he would get anything he wanted; that he would get him new ropes if he needed them; that he would buy new ropes if he did not have old ones that were good enough. Plaintiff's evidence further shows that McCracken, the manager, did get new lumber when told the old platform was defective, and that the lumber he had on hand was not suitable for the purpose of making another. It further clearly appears that plaintiff was to decide whether the rope on hand was suitable and good enough. Plaintiff saw the rope, examined it, and, though he considered it unsafe, dangerous, and liable to break, yet he made no effort to see any one in order to get new rope after he had seen the rope on hand, nor did he then complain to any one about the rope, or request that new be procured.

Foster's statement that he did not know anything about getting new rope was not a change of the arrangement between McCracken and ...