Lofty v. Lynch-McDonald Construction Company
| Decision Date | 05 November 1923 |
| Citation | 256 S.W. 83,215 Mo.App. 163 |
| Parties | J. FRANK LOFTY, Admr. of the Estate of LESLIE PHILLIPPI, Respondent, v. LYNCH-McDONALD CONSTRUCTION COMPANY and the CITY OF MOBERLY, Appellants. * |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Randolph County.--Hon. A. W Walker, Judge.
REVERSED AND REMANDED as to Appellant, Construction Co. REVERSED as to appellant, City.
Judgment reversed and cause remanded.
Jerry M. Jeffries for respondent.
Willard P. Cave for appellant, Construction Co.
Austin Walden and Hunter & Chamier for appellant, City.
--This is an action by the administrator of the estate of Leslie Phillippi to recover damages for his death, which is alleged to have been caused by electricity through the negligence of the defendants, the city of Moberly and the Lynch-McDonald Construction Company. For brevity, the defendants will be referred to respectively as the City and the Construction Company. The latter was under contract with the former to build, and was engaged in erecting, a waterworks plant to supplement the then existing water system of the city. The jury returned a verdict of $ 2000 against both defendants and each of them has appealed.
The petition alleged that on and prior to the 14th day of April 1922, defendants were together engaged in building and equipping a water and filtration plant for the city, and had previously erected a small shed to be used, and which was then being used, by them in said work; that defendants had placed on said shed a quantity of small metal pipe for use in said work; that prior to said date defendants had erected at the side of the shed a brick building called the pump station and filtration plant in which they had installed, and were operating in connection with said work, electric engines, dynamos and pumps; that at some distance from the shed they had, in connection with said work, erected a pole; that from the top of said pole defendants had carelessly extended uninsulated copper wires down, over said shed and over the metal pipes thereon, to said brick building and into the same at the side thereof, and connected said wires therein so that they carried a dangerous current of electricity from the dynamos in said building to the pumps, engines and lights of defendants located elsewhere and used in connection with said work, and that defendants negligently permitted said wires to remain in said position uninsulated and dangerous while carrying said deadly electric current; that on April 14, 1922, said Leslie Phillippi, then employed by defendants in the work of building and equipping said waterworks, was by them directed in and around said shed and brick building, and, in so working, with due care on his part, he took hold of said pipes when another part of same came in contact with said wire charged with a deadly electric current, and he received a shock from which he then and there died.
The answer of the Construction Company, after denying generally, set up three defenses: 1. That Phillippi was an experienced electrical worker, knew the dangers of said business, and, if his death was from electric shock, it was caused by his own negligence in failing to observe the bare wires in plain view, and in carelessly handling iron pipe in close proximity thereto and allowing said pipe to come in contact therewith. 2. That the Construction Company built the pumping station and plant, including the electric transmission line, in accordance with plans and specifications adopted by the city. 3. That Phillippi, at the time of his death, was in the employ of the city, and, in removing the pipe from the roof of the shed, was engaged in work entirely outside the scope of his employment.
The answer of the city was a general denial together with a plea of the following defenses: 1. Contributory negligence on the part of Phillippi, in that he, knowing the dangerous character of electric wires and that these carried a deadly current and having been warned against coming in contact with them, negligently attempted to remove a piece of iron pipe from the top of the shed with his back to said shed and carelessly allowed said pipe to come in contact with said wires. 2. That the wires were erected by the Construction Company, an independent contractor over which the city had no control, and said Company was in charge of the work at the time, not having completed it and the city, not having accepted it, was not the owner nor in charge of same.
These defenses were denied by appropriate replies on the part of plaintiff.
It seems that in September, 1920, the city employed the engineering firm of Fuller & Baird of St. Louis to prepare plans and specifications for, and to do the engineering work in connection with, the development of a new water supply and the erection of a new waterworks plant to supplement or take the place of the then existing system. Said engineers were to supervise the work to see that the work was done according to the plans and specifications, and a competent engineer was to be kept on the work at all times for this purpose.
Plans and specifications were prepared which the city by ordinance adopted, and afterward the city duly entered into a contract with the Constitution Company to build and install said plant in accordance with said plans and specifications.
The city had, at its old reservoir, an electric light plant in addition to its steam power water plant there, and for a number of years Phillippi, plaintiff's decedent, had charge of the electric plant and was familiar with electrical equipment and the dangers from electric wires.
The contract between the city and the Construction Company provided that a large portion of the big water main leading from the old reservoir to the city should be taken up and used either at the new reservoir or elsewhere in the extended city system. Of course, if the flow line of the old reservoir were taken up before the new plant was completed, the city would be without water during the time elapsing between the taking up of the old flow line and the completion and starting of the new plant. The contract further provided that the city should "have the right to use the whole or any part of the installation (i. e., new plant) which may be in condition, previous to final acceptance, and such use is not to be construed as an acceptance in whole or in part, but rather as a preliminary test of the installation."
A new flow line was laid from the old reservoir to the new pumping station, and when the new electric power plant had been installed therein, with the transmission lines therefrom, the Construction Company, in order to perform that part of its contract requiring it to take up the old flow line from the old reservoir, requested the city to shut down its power plant at the old reservoir and transfer the city's employees who operated it to the new pumping station. In this way water for use of the city could be pumped by means of the new power plant even though the new reservoir and water system were not yet complete. The contract, as heretofore stated, provided that the city could do this without thereby impliedly accepting the work, and, hence, on April 8, 1922, the city shut down its power plant at the old reservoir and transferred its employees, including plaintiff's decedent, to the new pumping station, and thereafter water was pumped for the use of the city by means of the new power plant, though the new waterworks system had not been completed nor had any part thereof been accepted by the city.
Plaintiff's decedent had worked at the new station about seven days before his death. His shift or working period was from eight o'clock a. m. to four p. m. His duties were to operate the electric pump in the station (which could be stopped and started by merely pressing a button), and keep things neat, clean and dry. He was the only employee working at the pumping station during his shift.
At the time he came there and up to his death, the transmission wires running from the station to the pumps at the lake, when the power was on, carried a current of 2300 volts of electricity, which is a deadly current sufficient to instantly kill a man coming in contact therewith. These wires passed from within the building to a bracket on the outside of the building, fastened on the south side thereof at a point from twelve to fourteen feet above the ground; and from this bracket the wires ran south to a pole thirty-five feet high located fifty feet away and from thence they went on a line of poles in the usual way to the old reservoir. In going from this bracket on the outside of the pump station to the first pole the wires passed over the shed located about six feet from the pump station, the wires being at a distance of from three to four feet above the roof of the shed. On top of this shed were several pieces of half-inch metal pipe stored there by the Construction Company, some of the pipe being seventeen feet in length. The ends of these pipes extended from three to six inches over the east edge of the shed roof. The door leading from the pump stations was on the south side of said station building and just east of the east side of the shed. Consequently, the ends of the pipes protruding from the roof of the shed were directly in front of and a short distance from the door leading from the pump station.
On the 14th of April, 1922, the day of Phillippi's death, he was at the pump station attending to his duties as usual. No one else was there except that the city chief engineer of the waterworks, Mr. Richardson, was there in the forenoon and after lunch returned to the station about 1:30 o'clock and then left and went up town. When Richardson was there Phillippi was...
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