Kidd v. Kansas City Light & Power Co.

• Decision Date: 30 January 1922
• Docket Number: No. 14217.,14217.
• Citation: 239 S.W. 584
• Parties: KIDD v. KANSAS CITY LIGHT & POWER CO.
• Court: Missouri Court of Appeals

239 S.W. 584

KIDD v. KANSAS CITY LIGHT & POWER CO.

No. 14217.

Kansas City Court of Appeals. Missouri.

January 30, 1922.

Rehearing Denied April 7, 1922.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by Ingram Kidd, an infant, by Samuel W. Kidd, as next friend, against the Kansas City Light & Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John H. Lucas, of Kansas City, for appellant.

Williamson, Pew & Harris, of Kansas City, for respondent.

ARNOLD, J.

This is a suit in damages for personal injury from contact with an uninsulated, heavily charged, grounded electric wire.

Plaintiff, a school boy 11 years of age, lived with his father and mother at Thirty-Third street and Tracy avenue in Kansas City, Mo. Defendant is, and was, a corporation engaged in the business of producing, transmitting, and selling electric power for gain in said city, and at the time of the injury complained of was in possession and control of the electric light wires, poles, appliances, and equipment involved in this action, and used by the defendant company in connection with its business activities. Tracy avenue is a public thoroughfare in said city running north and south, and is intersected at right angles by Thirty-Second and Thirty-Third streets, also public thoroughfares in said city.

On the afternoon of May 9, 1918, plaintiff left school at 3:15 and went to his home, a distance of a few blocks, and later went out to sell and deliver "Saturday Evening Posts," as was his custom. Some time after 3 o'clock on the afternoon in question some small schoolboys were playing on a tree, that had fallen during the previous night, in a lot on the east side of Tracy avenue, between Thirty-Second and Thirty-Third streets. While so engaged, they heard a popping sound near them, and discovered that one of the electric light wires had. broken in two, and one end thereof was lying in the parkway between the sidewalk and the street. There is nothing in the testimony of record disclosing the exact time when the breaking of the wire occurred. There is evidence tending to show that it may have occurred as early as 4 and as late as 5 o'clock that afternoon. The plaintiff was not present when the wire broke and fell. The wire carried an electric current of 2,300 volts, and when it fell it grounded, and the current flowed from the wire into the ground upon which it lay, which flow produced the cracking, popping sound heard by the boys, and set the grass on fire where the wire lay. About one inch, more or less, of the copper wire immediately at the broken end was uninsulated and bare.

The testimony tends to show that when a wire is grounded the fact is instantaneously registered at defendant's office upon a device maintained there for that purpose. By means of said device the particular circuit upon which the grounding of the wire has occurred is immediately indicated to the operator, or person in charge who, without leaving the office, may shut off the current instantly on that particular circuit. In this instance, instead of cutting off the current after learning of the break in the wire, defendant sent a man to repair the break, and defendant's testimony tends to show that this was accomplished in a few minutes. The testimony is indefinite as to the exact length of time the wire lay in the street, but tends to show that it was from 45 minutes to an hour.

While the wire was on the ground, some small boys gathered about it, one of whom took hold of it several feet back from the broken end, and was not shocked thereby. Plaintiff, who had been delivering a paper to a customer across the street, came up at this time, and, seeing the other boy handle the wire in safety, and not knowing it was a charged wire, and thinking he, too, could safely handle it, picked it up at the exposed end, and received the force of the current in his body.

It is in evidence that when plaintiff was in the act of picking up the wire, or after he had picked it up, some of the boys who were gathered around called to him that it was a "live" wire and not to touch it.

Plaintiff was knocked unconscious from the shock, his right thumb was seriously burned, the flesh on his right wrist was burned away until the ligaments were exposed; there were burns on his upper right arm, and on his right shoulder blade and back there were four or five holes burned, some of which were an inch deep and four to five inches in diameter; his sight was injured, and he sustained a severe nervous shock. He was confined to the house under daily treatment of a physician for six weeks. The petition charges permanency of the injuries sustained.

The first amended petition, upon which the case was tried, charges negligence in the following words:

"* * * That the defendant had carelessly and negligently suffered and permitted one of its electric wires which had theretofore been strung upon and along the line of poles aforesaid, upon the avenue aforesaid, at and about the place aforesaid, to become detached from said pole, and then and there to be lying in said public street heavily charged with electricity, and had carelessly and negligently suffered and permitted the insulation upon said wire which had fallen as aforesaid, to become worn, frayed, abraded, and destroyed, so that said wire was exposed, uninsulated, and heavily charged with electricity, as aforesaid, and that, while plaintiff was so upon said street at the place aforesaid, and in the exercise of ordinary care on his part, plaintiff came in contact with said wire at the point where the same was not insulated, and suffered a severe electric shock, when and whereby plaintiff was injured," etc.

The answer is a general denial, followed by a plea of contributory negligence. The reply is a general denial. Upon the issues thus joined, the cause was tried to a jury, and resulted in a verdict for plaintiff in the sum of $5,000. Motions for new trial and in arrest were overruled by the court, and defendant appeals.

Defendant, as its first assignment of error, charges that the court erred in refusing to give defendant's peremptory instruction in the nature of a demurrer to plaintiff's evidence. This contention is based on both the pleadings and the evidence, and defendant submits an able and exhaustive brief on the subject charging: First, that there was no evidence of negligence on the part of defendant.

It is urged there was no proof offered to sustain plaintiff's allegation that the insulation upon the wire in question had been destroyed. The language of the petition is that the insulation had been permitted to become "worn, frayed, abraded, and destroyed, so that said wire was exposed, uninsulated, and heavily charged with electricity."

Now the record shows there was not a witness who testified to the condition of the wire who did not testify that the wire was bare at the end where plaintiff took hold of it. There was ample and substantial evidence to support the charges in the petition relative to the uninsulated condition of the wire at the point where plaintiff came In contact with it.

Defendant further contends there is no evidence that plaintiff was in the exercise of ordinary care for his own safety at the time of the injury, and charges that plaintiff's own testimony tends to show that he was guilty of contributory negligence as a matter of law.

Plaintiff testified that he saw another boy pick up the wire, and that "it didn't hurt him, so I thought it wouldn't hurt me, so I went and picked it up at the end." On crossexamination he said he knew there was danger in electric lights, but that, inasmuch as he saw another boy pick up the wire without being injured, he thought he could do the same thing, and if he had not seen the other boy do it, he would not have picked it up.

"Exceptional cases, in which the inquiry of whether or not injured minors were culpably negligent was held to be for the court's instead of the jury's decision, do not impugn the general rule that the question is for the jury when different inferences are fairly deducible from the evidence; a rule which has been many times declared by the appellate courts of this state." Fry v. Transit Co., 111 Mo. App. loc. cit. 333, 85 S. W. 962, and cases there cited.

Under all the facts and circumstances in this case, we cannot say as a matter of law that plaintiff was guilty of contributory negligence which should preclude a recovery, and the submission of that question to the jury was proper.

Defendant declares the testimony shows that plaintiff was warned that the wire was "alive," and not to touch it, and that the wire was sizzling and burning. The testimony on this point goes further, and states, "We told him too late." Edward Trindler, one of the boys who saw the accident, testified:

"He was in the act of stooping down; every one of us told him not to; we all said the same thing: `Don't pick up the wire.'"

Some of the other boys also testified:

"We told him too late."

We think the jury might well infer from this testimony that plaintiff was not warned until after he had taken hold of the wire, or was in the act of picking it up.

In connection with the argument that the demurrer...