Kribs v. Jefferson City Light, Heat & Power Co.

• Decision Date: 03 December 1917
• Docket Number: No. 12412.,12412.
• Citation: 199 S.W. 261
• Court: Missouri Court of Appeals
• Parties: KRIBS et al. v. JEFFERSON CITY LIGHT, HEAT & POWER CO.

199 S.W. 261

KRIBS et al. v. JEFFERSON CITY LIGHT, HEAT & POWER CO.

No. 12412.

Kansas City Court of Appeals. Missouri.

December 3, 1917.

Appeal from Circuit Court, Cole County; Jack G. Slate, Judge.

"Not to be officially published."

Action by Theodore Kribs and others against the Jefferson City Light, Heat & Power Company. From judgment for plaintiffs, defendant appeals. Judgment reversed, and cause remanded.

Irwin & Haley, of Jefferson City, for appellant. A. T. Dumm, of Jefferson City, and Whitecotton & Wight, of Moberly, for respondents.

TRIMBLE, J.

Robert O. Kribs, an unmarried minor slightly over 18 years of age, was instantly killed by coming in contact with a loose wire hanging across and down from a line of defendant's wires carrying a high power current of electricity. His parents brought this suit under section 5427, R. S. Mo. 1909, to recover the damages resulting to them thereby. They recovered judgment in the sum of $1,000 and defendant has appealed.

It is urgently insisted that the demurrer to the evidence should have been sustained. The boy's contact with the wire and his consequent death occurred in a pasture which extended from a street in Jefferson City to the Missouri river. On the north end of this pasture and near the river bank was a rock quarry. At some time long prior to the tragedy a rock crusher had been established at the quarry, and to supply power thereto the defendant ran a branch line from its street line down to the crusher a distance of about one-fourth mile. This branch line was on poles, and at the last pole on the crusher end the branch line had been connected by wires running from said last pole down to the crusher. About a year or a year and a half before the boy was killed, the crusher ceased operation and was removed. At the time of its removal the connecting wires leading from the last pole down to the crusher were cut close to said pole which was standing near the quarry and close to a wagon road leading from a gate on the street down through the pasture to the quarry. During the entire year or 18 months prior to the boy's death the branch line was not disconnected from the street line, but remained charged with a high power current of electricity the same as the other lines of the plant. For three weeks or a month before the boy's death, a twisted wire or cable such as is ordinarily used to guy or hold a pole in place, and which apparently had at one time been used to guy the pole above mentioned, had lain across the live wires at a point near said pole, one end of said guy wire being curled up and around a large rock on the ground in the weeds, and the other hanging down from the wires to a point a few feet above the ground.

On the afternoon of the day of his death the deceased, in company with two younger boys, went through the pasture to the river to fish, and in order to get minnows for bait they went up a small hollow or branch seining for them. As they went up they passed through the quarry, but no one saw or noticed the wire hanging from the line. After obtaining minnows they were returning, the Kribs boy's feet being wet from wading in the creek. Coming back to where the quarry was, the two younger boys took a somewhat longer pathway around to where they were going, but the deceased took a short cut afforded by a path leading up over an embankment at the quarry. The pole above mentioned stood close to the path of this short cut and about 20 feet from the point where the deceased's route diverged from that of the other two boys. A moment after deceased had left the other boys, or just long enough for him to walk this 20 feet, the boys heard him scream and, running to where he was, saw him lying on his back at the pole his right hand clasping the wire. He never spoke after he was reached, but apparently was dead when they got to him.

In support of its claim that the demurrer to the evidence should have been sustained, defendant contends that no evidence of negligence on its part was presented, and cites many authorities from this and other states. But we think none of them apply to the case before us. They are cases where the act or negligence charged against the defendant was not the proximate cause of the injury, that is, the act charged would never have been followed by an injury had it not been for the unforeseen, independent, and intervening negligent act of another, and which act was not one a man of ordinary prudence and foresight would anticipate. For example, Luehrmann v. Laclede Gaslight Co., 127 Mo. App. 213, 104 S. W. 1128, where a company had allowed one of its wires to become uninsulated but at a place where no harm could have followed therefrom had it not been for the mischievous act of some boys in throwing another wire across defendant's line a few moments before the accident of which the company had no notice and which it could not have reasonably foreseen; or, as in the case of Strack v. Missouri, Kansas Tel. Co., 216 Mo. 201, 116 S. W. 526, where an unused telephone wire had been left parallel to, but 15 feet from, an electric light wire from which no harm would have...