Kessler v. West Missouri Power Co.
| Decision Date | 24 May 1926 |
| Docket Number | No. 15680.,15680. |
| Citation | 283 S.W. 705 |
| Parties | KESSLER v. WEST MISSOURI POWER CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Henry County; Chas. A. Calvird, Judge.
Action by Ida Kessler against the West Missouri Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
J. A. Gilbreath and W. E. Owen & Son, all of Clinton, for appellant.
James H. Wilson, C. A. Calvird, Jr., and James A. Parks, all of Clinton, for respondent.
This is an action far the wrongful death of plaintiff's husband. There was a verdict and judgment in favor of plaintiff in the sum of $3,000, and defendant has appealed.
The facts show that deceased was accidentally killed in the city of Deepwater on March 17, 1925, by reason of having received through his body a deadly charge of electricity which had escaped from one of defendant's electric wires carrying a high voltage. Defendant owned the electric plant and distributing system in the city of Deepwater. The plant had been installed by that city about 10 years prior to deceased's death, and it had been purchased by defendant from the city about 2½ years prior to the latter time. Among the wires maintained by defendant in the city were those upon a line of poles running north and south along the rear of plaintiff's lot where she and her husband lived. Prior to the time that plaintiff purchased the lot, there was an alley running north and south where the poles were erected. It was thought that this alley was upon land owned by the city, but after that time a survey was made, and it was found that the alley ran 6 or 8 feet further east along the rear of plaintiff's lot, so plaintiff and her husband built their rear fence along the true line of this alley, leaving defendant's wires running north and south over the rear of plaintiff's lot. The house where plaintiff and her husband resided faced west upon this lot and upon a public street running north and south. There was a shed located at the northeast corner of the lot; the shed was about 20 feet long, north and south, about 9 feet wide and 8 feet high. The east end of the shed was on the line between the lot and the alley, and the north side on the line between plaintiff's lot and the adjoining property to the north. The property on the north was occupied by one Herbert and his family at the time deceased was killed.
One of defendant's light poles was located near the south end of plaintiff's lot, 6 or 8 feet west of the alley; another pole was located north of this one over on the Herbert lot. There was 130 feet distance between the two poles. Five wires of defendant ran from the pole on plaintiff's lot to the one on the other lot. Three of these wires were located on a cross-arm near the top of each pole, these wires containing deadly currents of electricity, two bearing 2,300 volts and one 800 volts. The two lowest wires, which were attached directly to the post, bore 110 volts, which the evidence shows is not a deadly charge. These wires ran directly over the shed on plaintiff's lot. No objection was made by plaintiff or deceased to the presence of defendant's poles and wires on her property, and it is admitted that defendant occupied her property for its purposes under an implied license.
In June, 1924, plaintiff's husband installed a radio set in the house which was located about 60 feet southwest of the shed. For the purpose of carrying one end of the aerial wire, he erected a pole at the northwest corner of the shed. This pole consisted of a 2×6 scantling 16 feet and one inch long nailed to the north side of the shed at the west end thereof; the bottom of the scantling being 8 or 9 inches above the ground. To the upper end of this scantling was fastened a pulley with an ordinary rope running through it. The rope was fastened to the aerial about 6 or 8 feet from the pulley. The other end of the aerial wire ran to the house and into the same to the receiving set. The rope and pulley were for the purpose of tightening the aerial. Deceased ran an uninsulated wire along the middle of this scantling from a point in the ground to a point about one foot above the upper end of the scantling, called in the testimony a "ground" wire. The evidence as to when this ground wire was installed is conflicting, but as defendant insists that its demurrer to the evidence should have been sustained we must take the evidence in its most favorable light to plaintiff, and it will hereinafter be shown that there was evidence that the ground wire was installed at the time the aerial wire was erected. There is also a conflict in the testimony as to how far the ground wire extended above the scantling, but there was evidence that it extended only a foot; one of defendant's witnesses testified to the effect that it extended as little as 13 inches above the scantling. There was evidence that the ground wire was immediately under the most western of the high-voltage wires, and other testimony that it was 3 or 4 inches to the east of this wire. There was evidence that at the time of the erection of the ground wire it did not extend nearer the electric wire in question than a foot.
About the middle of December, 1924, there was a rainstorm in the city of Deepwater which turned into sleet and snow, forming ice in one place to a thickness of 6 inches. The ice did not melt until the latter part of the following January. The snow and ice collected on all the telephone and electric wires in the city. There was evidence that this resulted in causing said wires to permanently sag to some extent at various places, including the wire over the rear of plaintiff's shed. It is claimed that there was no evidence of any permanent abnormal sagging of wires over plaintiff's shed, but there is evidence raising an inference that there was. The evidence shows the wires passed over plaintiff's shed midway between the two electric light poles and that the greatest sag was at that point. The sagging of the wires over the shed caused the light wire in question to come in contact with the upper end of the ground wire, resulting in the destruction of the insulation upon the light wire, the welding of the two wires at that point and the communication of the deadly current from the light wire to the ground wire. Deceased had constructed a woven wire fence from the northwest corner of the shed, running about 60 feet westward along the division line of plaintiff's and Herbert's lots. This woven wire fence ran over the scantling and ground wire. The deadly charge of electricity, at least in part, passed into the woven wire fence and set fire to the fence and grass. The evidence shows that a current of electricity seeks the shortest route to the ground, and if the ground wire had been properly grounded, no doubt most of the current, if not all, would have passed off into the ground and not into the woven wire fence. The evidence further shows that the ground wire was run into the ground a distance of only 4 or 5 inches, and that after the accident it was found to be rusted where it was in contact with the earth, and that rust resists the flow of electricity.
Plaintiff and deceased were eating supper when the former saw a flash of light. She then noticed the grass on fire, and called this to the attention of her husband, who ran out of the house. Plaintiff did not see deceased again for a few moments, after which she, also, went out of the house and then saw him against the fence; he had been electrocuted. Herbert, facing plaintiff's husband from the other side, was hanging over the fence, dead. We learn from defendant's brief that Herbert had gone to the assistance of deceased.
The petition alleged that after the erection of the aerial pole and the placing of the ground wire upon it, defendant "negligently permitted, the insulation on such wires (its light wires) to wear off and become ineffective at the places where such wires pass over the roof of such shed"; that as the result of the snow and sheet storm and the snow and sleet remaining on defendant's wires, said wires extending over said shed were caused to become "loosened and sagging"; that defendant knew, "or by the exercise of due diligence could have known, that such wires extending over said shed had loosened and sagged"; that the west wire on said cross-arm sagged "some 3 feet, and the insulation had worn off or become ineffective"; that "by the exercise of ordinary care and precaution in inspecting such wire defendant could have discovered such sagging and worn insulation," and could have remedied the condition prior to the time of deceased's electrocution.
The answer contained a general denial and plea of contributory negligence, alleging that deceased carelessly and negligently erected his ground wire at or so near to the west high-tension wire on defendant's poles, "without the knowledge of defendant and without its assent, as to come in contact with defendant's high-tension wire as it swayed slightly in the wind"; that the electrocution was "due solely to the carelessness and recklessness of the decedent, in so placing and erecting said ground wire of said aerial in such immediate proximity to defendant's said high-power wires and lines, and in connecting said ground wire with the division wire fence."
It is insisted that defendant's instruction in the nature of a demurrer to the evidence should have been given, because there was no evidence of any "worn, frayed, raveled, rubbed, cracked, broken condition of the insulation" on defendant's wire. There was testimony that the insulation was in good condition, and even one of plaintiff's witnesses by the name of Hertzler, who assisted deceased in erecting the aerial, testified that as far as he could see at that time the insulation was in good condition. However, there was evidence from which the jury could say that it was not in good condition. Defendant in its brief admits that there had been no change in...
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