Kimberlin v. Southwestern Bell Telephone Co.

• Decision Date: 11 November 1918
• Docket Number: No. 12989.,12989.
• Citation: 206 S.W. 430
• Parties: KIMBERLIN v. SOUTHWESTERN BELL TELEPHONE CO.
• Court: Missouri Court of Appeals

206 S.W. 430

KIMBERLIN v. SOUTHWESTERN BELL TELEPHONE CO.

No. 12989.

Kansas City Court of Appeals. Missouri.

November 11, 1918.

Appeal from Circuit Court, Worth County; John M. Dawson, Judge.

"Not to be officially published."

Action by Dallas Kimberlin against the Southwestern Bell Telephone Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Kelso & Kelso, of Grant City, and Battle McCardle and Gleed, Palmer & Gleed, all of Kansas City, for appellant.

J. E. Engle and Du Bois & Miler, all of Grant City, for respondent.

TRIMBLE, J.

Plaintiff, while attempting to splice one of defendant's broken telephone wires, was severely shocked and burned by a current of electricity communicated to the telephone wire from an electric light wire strung underneath the telephone wires on the same line of poles. He brought this suit for damages against the telephone company and recovered judgment for $2,000. Defendant has appealed.

For a number of years prior to plaintiff's injury the defendant owned a long-distance telephone or toll line running through Grant City, Mo., which was a part of an extensive system of such lines over northwest Missouri and elsewhere. During this time there was an electric light plant in said city furnishing electric current over its system of wires to the inhabitants thereof Along the west side of High street, running north nearly to its intersection with a certain street running east and west, the telephone wires and the electric wires were strung upon the same poles, the telephone wires being on cross-arms several feet above the cross-arms carrying the electric wires. They were strung thus on the same `poles along the west side of High street, up to and upon a pole standing 103 feet south of the abovementioned street intersection. From this pole the telephone wires continued on north to a pole at said intersection, and thence on still further north; but the electric wires diverged somewhat to the west, and ran to a different pole, a short distance west of the telephone pole at said street intersection. This telephone pole at said intersection will be hereinafter called the north pole, while the pole immediately south thereof, carrying both telephone and electric wires, will be termed the south pole. Plaintiff's injury occurred between these two poles, as hereinafter related. This was at the edge of town, and across the street, on the east side thereof, stood the "old mill," hereinafter referred to.

The location of the wires upon their respective cross-arms on the south pole was such that the veering of the electric wires to the west, as they went north from the south pole to the pole west of the north pole, caused them to pass diagonally across and underneath the telephone wires at a point a little over midway between the north and south poles; and, owing to the sagging of the telephone wires, the distance between the two kinds of wires at the point of crossing was reduced to 14 inches. In this position, if one of the telephone wires broke and fell, it would inevitably fall upon and across the electric light wires.

On the 16th of March, 1917, the east telephone wire parted, from some cause, at a point near to and slightly south of the north pole, and, of course, that portion of the wire south of the break fell across the electric wires and went down close to and upon the sidewalk. About 4 o'clock in the afternoon plaintiff, at defendant's request, went to the place of the break for the purpose of splicing the wire. He walked north on the west side of High street till he came to where the broken wire ran down to, and was coiled upon, the sidewalk, a short distance south of the north pole. He walked up and took hold of the wire with his left hand, and was immediately shocked into unconsciousness and badly burned by contact therewith, until a man, in passing, saw his plight, and with a stick knocked the wire from him. The evidence shows that the insulation in the electric wires had, on account of long exposure, disintegrated and cracked until, on damp, wet days, such as the day of plaintiff's injury, it afforded no protection whatever.

Defendant contends that, for a number of reasons, plaintiff is not entitled to recover. One of them is that plaintiff was not shown to be a servant of the defendant in undertaking to splice the wire. The defendant had a district overseer or general lineman whose duty it was to inspect and keep in proper repair and working order 141 miles of toll lines in his district, comprising several counties, among which was the line in question. He resided at Stanberry, in a county adjoining that in which Grant City was located. The basis of defendant's contention that plaintiff was not a servant of the defendant is the claim that its general lineman, Hutton, at Stanberry, had an arrangement with the Grant City local telephone company that, whenever a break occurred on the toll line of defendant running through or near Grant City, he (Hutton) would have the local company there to repair it (using their own method and means) and send the bill to him.

For such contention to be successful, however, and to show, as a matter of law, that the local company repaired all breaks, including the one in question, as an independent contractor, and that plaintiff in the present instance was acting for it and not as an employs of defendant, such things must conclusively appear from the evidence, otherwise the question, Who was plaintiff's employer? would be for the jury to determine.

We do not think it was conclusively shown to be as defendant claims. In the first place, such contention depends largely on evidence offered by defendant. The facts shown are that, when a break occurred in defendant's toll line near Grant City, defendant's general lineman at Stanberry would call West, the manager of the Grant City local company, and get him to send a man out to fix it, and payment therefor would be sent to West, who in turn paid the man. Now, even if this was not a mere convenient way for Hutton to secure a man at Grant City to do the work, but conclusively constituted West or his company an independent contractor as to those instances, nevertheless the evidence as to plaintiff's employment to do this particular job of repairing tends to show, or at least to raise an inference, that it was upon a different footing. Hutton, It Stanberry, discovering that the Grant City line was out of order in some way, called up the local operator at Grant City, and asked her if she knew what was the matter. She replied that a drayman in town had said the wire was broken near the edge of town "up by the mill." He then wanted to know if Mr. West was there, and, when told he was not, asked her if she "couldn't get some one to fix it immediately," and she told him she thought she could. He thereupon said to her to "get some one and sent them out to fix the line." She thereupon telephoned over town until she found plaintiff at the restaurant, and told him over the phone that "Mr. Hutton wanted the line fixed, and I wanted to know if he would fix it," and plaintiff told her he would. He immediately went to her office, where the same conversation between them was repeated. It would seem that this constituted employment of plaintiff by Hutton to do the work in question. At least, it would be a question for the jury to say whether plaintiff, in attempting to do the work, was acting as the servant of the defendant or as the servant of the local telephone company. Plaintiff was not in the employ of the latter company at the time. He was a plasterer who, in the intervals of his trade, did odd jobs about the town. He had, at times prior to that, done jobs for the local telephone company when called upon, but was Lot an experienced lineman, his work consisting mostly of digging holes, putting telephones in houses, and such as that. Under all the circumstances, we do not feel justified in saying there was no question as to whom he was working for when he got hurt.

Another contention of defendant is that plaintiff cannot recover because there was no breach of any obligation to furnish plaintiff with a reasonably safe place to work, that the nature of his employment necessarily imposed upon him the duty of inspecting the place, and he assumed the risk of any danger he might have thereby discovered.

In order to properly dispose of this contention, it is well to here...