Kramer v. Kansas City Power & Light Co.

Decision Date22 December 1925
Docket NumberNo. 25108.,25108.
CourtMissouri Supreme Court

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by William Kramer against the Kansas City Power & Light Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.

John H. Lucas, William C. Lucas, and Ludwick Graves, all of Kansas City, for appellant.

Clif Langsdale, of Kansas City, for respondent.



This case was tried under an amended petition filed herein on February 20, 1923.

(1) It alleges that defendant is a corporation engaged in distributing electrical current in Kansas City, Mo.; that in the prosecution of its business it erected, owned, and maintained wooden poles in said city for the purpose of carrying wires used to conduct said electrical current about said city, and, more particularly, a pole used for said purpose erected and maintained on the east side of Oak street, between Third and Fourth streets in said city; that at all of said times plaintiff was in the employ of defendant as a lineman; that on or about April 3, 1920, while in the pursuit of his employment, he was ordered and directed by defendant to climb said pole; that, while so climbing the same, and using one of the iron steps driven and placed in and maintained on said pole by defendant for the use and convenience of plaintiff and other workmen in climbing said pole, said step, which was old and rusty, and not driven or placed far enough into said pole to maintain or bear the weight of plaintiff, broke, and caused him to fall and sustain the injuries complained of. It is charged that defendant negligently caused said step to be driven and placed in said pole not far enough to make it reasonably safe and secure from breaking under a strain, which the defendant knew, or by the exercise of ordinary care would have known, that it would be put to by linemen in its employ in using said step to climb said pole; that defendant knew, or should have known, that for said reason it was not safe and secure, and that, if it should break, would cause the lineman to fall; that, while using said step on or about the above date, it broke because of said negligence, caused him to fall and sustain the injuries complained of herein.

(2) It further alleges, in substance, that appellant, with knowledge of the condition of said step, was guilty of negligence in failing to inform respondent of its condition.

(3) It charges that said pole step was old, worn, rusty, and of insufficient strength for the use of linemen; that defendant knew, or should have known, of its condition, in time before plaintiff's injury to have replaced same -with a suitable step, or to have warned plaintiff of its unsafe condition.

(4) It alleges that appellant was negligent in respect to foregoing matters, and that plaintiff was injured by reason of said negligence.

(5) It alleges that appellant was guilty of negligence, which caused plaintiff's injury in directing him to climb said pole, when it knew, or ought to have known, that said pole step was unsafe, etc.

The petition sets out the injuries complained of, which will be considered, if necessary, in the opinion.

The answer to amended petition admits the incorporation of defendant; denies every other allegation in said petition; pleads assumption of risk and contributory negligence on the part of plaintiff in failing to observe and test the pole step in question. The reply, contains a denial of the new matter pleaded in said answer.

Plaintiff's evidence: George Welday, a resident of Kansas City, Kan., testified in behalf of respondent by deposition that on April 3, 1920, he was employed by this appellant in Kansas City, Mo., and knew the plaintiff, William Kramer; that he was present when plaintiff was injured at Fourth and Oak streets on above date; that he and plaintiff, with other members of the gang, went there to repair an arc wire that was broken down; that they looked over the job, and concluded that they needed a span wire to splice the one on the pole; that he climbed the first pole north of Fourth street on Oak street, where Kramer fell; that Kramer followed him up the pole; that there were two arms on the pole; that when he (witness) got to the bottom arm he stopped, and plaintiff was right below him; that plaintiff stopped, and was told by witness to wait a minute; that he (witness) went on up through the bottom wires on the bottom arm to the top arm, and put his safety just below the top arm; that plaintiff waited there until witness got set; that he then stepped around to the south side of the pole to come up on that side, and, as he placed his foot on a step, it gave way with him; that said pole is about 50 feet above the ground, and was a wooden pole; that it was equipped with iron steps, which commenced about 12 feet from the ground; that these steps were about 18 inches apart on each side of the pole, north and south; that it was snowing, and there was snow on the pole and steps; that they were the regulation iron pole steps; that, when Kramer started up, after the conversation with witness, he used the steps; that he was on the south side of the pole when the step gave way with him; that this step was possibly 6 feet from the bottom crossarm; that he (plaintiff) put his left foot on the step that gave way; that witness at this time was at the top cross-arm, waiting for plaintiff, and was looking south; that he saw plaintiff put his foot on the step, and saw the latter give way with him; that plaintiff grabbed at the pole, but missed it, and fell about 10 feet, when he caught a broken wire hanging down from the top cross-arm; that when be got his full weight on it the wire broke at the insulator, and plaintiff fell to the pavement; that plaintiff was then carried away in an ambulance; that he saw the step which broke with Kramer lying there in the snow on the street about 7 feet from the pole; that the snow was probably 1 ½ inches or 2 inches deep; that they did not complete the work on the day of the accident; that he saw the pole 2 days thereafter, and examined it; that he climbed the pole up to where the iron step had broken off, and looked at the place; that part of the broken pole step was in the pole, like it had been driven in; that the piece in there was flush with the pole; that is, it was even with the outside of the pole; that the pole seemed to be solid, and there was no depression around the piece of step that was still in the pole.

On cross-examination witness testified in substance that these were regulation iron pole steps; that they were in use by telephone companies and all companies that have poles use steps like these; that he and Kramer were there about 10 minutes before the accident, and that both he and Kramer had on their climbers; that there was snow on the ground, and the temperature was freezing at the time of the accident; that he (plaintiff) was using his climbers, and stepped onto the step, which broke, and let him fall to the ground.

On re-examination witness again testified that the break appeared to him as being flush with the pole.

Jess Stinson, a witness for plaintiff, found the broken step about 6 or 8 feet from the pole where plaintiff fell, identified the same, and it was marked as Plaintiff's Exhibit 1. Witness measured Exhibit 1, and testified that it was 614 inches from the inside of the flange of said step to the point where it was broken off; that from the outside of the flange to the point where the step was broken off it was a fraction over 6 ¾ inches; that he had been a lineman for about 18 years, and continued as such until 1917, when he was hurt. Over the objection of defendant, witness was permitted to testify that it was customary to measure the distance that a step should be left outside of the pole by a hand axe about 4½ inches wide. He was shown the balance of the step, marked Exhibit 2, and identified same as part of Exhibit 1.

J. R. Black, who was a lineman of 30 years' experience, testified, in substance, that he recalled the injury sustained by plaintiff on April 3, 1920; that on April 4th, following the accident, he went where it occurred with Jess Stinson; that they found the broken step marked as Plaintiff's Exhibit 1; that it had been worn, was rusty, and had been in service a long time; that the condition of the end where it broke looked like it had been eaten up by rust; that it was smaller than when it was first put into the pole. Witness testified that he had observed the steps of different companies for whom he had worked; that on or about April 3, 1920, and prior thereto, in Kansas City, Mo., and vicinity, there was a custom among linemen, persons, and corporations erecting steps and poles with reference to the distance that the steps of similar material, size, and character as the step in controversy, marked Exhibit 1, were driven into the pole, which was the size of a hand axe blade about 4½ inches in width.

On cross-examination witness testified that this was the same type of steps that was in general use.

On re-examination he testified that Exhibit 2, which was part of the broken step taken out of the pole, was worn and rusty on the end; that this part of the step is just a fraction over 2 inches in length.

The plaintiff here offered in evidence, without objection, both Exhibits 1 and 2, showing the entire broken step.

Erastus Cooper testified for plaintiff substantially as follows: That he had been a lineman about 25 years in Kansas City, Mo., and other places; that he had worked as lineman in 15 or 16 states, and in Canada; that he was acquainted with the pole from which Kramer fell; that the steps on said pole are driven on the north and south sides; that he measured the distance from where the step went into the pole to the ground, and found the distance to be 32 feet and 10 inches; that during his...

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