Kramer v. Kansas City Power & Light Company

• Decision Date: 22 December 1925
• Docket Number: 25108
• Parties: WILLIAM KRAMER v. KANSAS CITY POWER & LIGHT COMPANY, Appellant
• Court: Missouri Supreme Court

279 S.W. 43

311 Mo. 369

WILLIAM KRAMER v. KANSAS CITY POWER & LIGHT COMPANY, Appellant

No. 25108

Supreme Court of Missouri

December 22, 1925

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Reversed and remanded.

John H. Lucas, William C. Lucas and Ludwick Graves for appellant.

(1) The court erred in refusing to sustain the objection to the introduction of any testimony and in refusing to sustain the motion to make more definite and certain: (a) The amended petition did not state facts sufficient to constitute a cause of action, but stated mere conclusions of the pleader. Hollis v. Light & Power Co., 204 Mo.App. 313. (b) The motion to make more definite and certain should have been sustained. Van Bibber v. Welborn Fruit Co., 234 S.W 356; Shohoney v. Railroad, 223 Mo. 671; Sideway v. Land Co., 163 Mo. 375. (2) The court erred in refusing to grant the demurrer to the evidence and the peremptory instruction. (a) Under the pleadings and the evidence there was no actionable negligence against the appellant. 9 R. C. L. 1218, 1219; Flack v. Ry. Co., 285 Mo. 48; Milligan v. L. & P. Co., 264 S.W. 408; Howard v. Ry. Co., 173 Mo. 524; Roberts v. Tel Co., 166 Mo. 370; Bohn v. Ry. Co., 106 Mo. 429; Braden v. Railroad Co., 174 Mo.App. 584; Miller v. Tel. Co., 141 Mo.App. 462; McGorty v. Tel. Co., 69 Conn. 635, 61 Am. St. 62; McIsaac v. Electric Co., 70 Am. St. 244; Lynch v. Traction Co., 21 L. R. A. (N. S.) 774; Sias v. Con. Lighting Co., 73 Vt. 35; Flood v. Western Union Tel. Co., 131 N.Y. 603. (b) Respondent assumed the risk. Flack v. Ry. Co., 285 Mo. 50; Shelton v. Light, Power & Ice Co., 258 Mo. 534; Roberts v. Tel. Co., 166 Mo. 370; Howard v. Mo. Pac. Ry. Co., 173 Mo. 524; Epperson v. Cable Co., 155 Mo. 346; Scoffin v. Furniture Co., 184 Mo.App. 627; Braden v. Railroad, 174 Mo.App. 584; Miller v. Tel. Co., 141 Mo.App. 462; McIsaac v. Electric Co., 70 Am. St. 244; McGorty v. Tel. Co., 69 Conn. 635, 61 Am. St. 62; Lynch v. Traction Co., 21 L. R. A. (N. S.) 774; Sias v. Con. Lighting Co., 73 Vt. 35; Flood v. Western Union Tel. Co., 131 N.Y. 603; 9 R. C. L. 1218, 1219. (c) Respondent was guilty of contributory negligence as a matter of law. Flack v. Ry. Co., 285 Mo. 28; Roberts v. Tel. Co., 166 Mo. 370; McIsaac v. Electric Co., 70 Am. St. 244; McGorty v. Tel Co., 61 Am. St. 62; Little v. Hyde Park Elec Co., 191 Mass. 386. (d) Any defect in the pole step was a latent defect for which the appellant was not liable. Howard v. Railroad, 173 Mo. 524; Bohn v. Railroad, 106 Mo. 429; Cunningham v. Journal Co., 95 Mo.App. 47; Breen v. Cooperage Co., 50 Mo.App. 202; Moran v. Brown, 27 Mo.App. 487. (e) Respondent violated the rule of the appellant and the custom of linemen in failing to test the pole and steps. Biddlecom v. Nelson Grain Co., 178 S.W. 750; Junior v. Elec. Lt. & Pr. Co., 127 Mo. 79; Chenowith v. Sutherland, 148 S.W. 127; Yokum v. Lusk, 223 S.W. 56; McGorty v. Tel. Co., 69 Conn. 635.

Clif Langsdale for respondent.

(1) Appellant having answered over and gone to trial, cannot on appeal complain of alleged error in overruling its motion to make respondent's petition more definite and certain. Sperry v. Hurd, 185 S.W. 173; Burnett v. Hudson, 228 S.W. 462; Lewis v. Barnes, 220 S.W. 489. (2) Appellant's demurrer to the evidence was properly overruled; and its peremptory instruction was properly refused. (a) Under the pleadings and the evidence respondent made a case for the jury. Sissel v. Sherin, 268 S.W. 668; Foster v. Rys. Co., 235 S.W. 1074; Kinney v. Met. Rys. Co., 169 S.W. 26; Corby v. Tel. Co., 231 Mo. 417; State ex rel. St. Joseph v. Ellison, 223 S.W. 671. (b) Respondent did not assume the risk. Corby v. Tel. Co., 231 Mo. 417; State ex rel. St. Joseph v. Ellison, 223 S.W. 671. (c) Respondent was not guilty of contributory negligence. Corby v. Tel. Co., 231 Mo. 417; State ex rel. St. Joseph v. Ellison, 223 S.W. 671. (d) The defect in the pole step which caused it to break was not a latent defect, but, under the evidence, was located where it could have been discovered by the appellant by the exercise of ordinary care for its employees' safety. (e) Respondent violated no rule of the appellant and no custom of linemen. There was no rule or custom shown the observance of which would have prevented respondent's fall. (3) The court committed no error in giving respondent's Instructions 1-P, 2-P and 3-P. Meeker v. E. L. & P. Co., 216 S.W. 923. (4) There was no error in the admission of testimony on the part of respondent. Kinney v. Metro. St. Rys. Co., 169 S.W. 26; Bailey v. Kansas City, 87 S.W. 1186; Foster v. Railways, 235 S.W. 1074; Lackey v. Railways, 231 S.W. 963.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

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

(1) It alleges that defendant is a corporation engaged in distributing electrical current in Kansas City, Missouri; 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, and 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 said 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.

George Welday, a resident of Kansas City, Kansas, testified in behalf of respondent, by deposition, that on April 3, 1920, he was employed by this appellant in Kansas City, Missouri, 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 fifty feet above the ground, and was a wooden pole; that it was equipped with iron steps, which commenced about twelve feet from the ground; that these steps were about eighteen 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 six feet from the bottom cross-arm; 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 away with him;...