Milligan v. Kansas City Light & Power Company

• Decision Date: 31 July 1924
• Docket Number: 23218
• Parties: MAE MILLIGAN, Administratrix of Estate of FRANK MILLIGAN, v. KANSAS CITY LIGHT & POWER COMPANY, Appellant
• Court: Missouri Supreme Court

264 S.W. 408

304 Mo. 624

MAE MILLIGAN, Administratrix of Estate of FRANK MILLIGAN, v. KANSAS CITY LIGHT & POWER COMPANY, Appellant

No. 23218

Supreme Court of Missouri

July 31, 1924

Motion for Rehearing Denied July 31, 1924.

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Reversed and remanded.

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

(1) The trial court erred in refusing to sustain appellant's objection to the introduction of any evidence at the beginning of the trial, and in refusing to give the demurrer at the conclusion of the evidence of the respondent, and in refusing to give the peremptory request for a verdict at the conclusion of all the evidence in the case. Under the pleadings and the evidence the respondent is not entitled to recover: (a) The petition does not state facts necessary to confer on respondent the right of action, and states mere conclusions, and hence states no cause of action. 18 R. C. L 544-546; Abbott v. Mining Co., 112 Mo.App. 550; Mueller v. Shoe Co., 109 Mo.App. 506; Pavey v Railroad, 85 Mo.App. 221; Renovich v. Construction Co., 264 Mo. 43. And states mere conclusions. Hollis v. Light & Power Co., 224 S.W. 158; Barber Asphalt Paving Co. v. Field, 188 Mo. 182; Booth v Cheek, 253 Mo. 119; Martin v. Castle, 193 Mo. 183. (b) There was no evidence of negligence upon the part of the appellant. The effect of so holding was to make the appellant an insurer and destroy the doctrine of actionable negligence. The master is not an insurer. Van Bibber v. Swift & Co., 228 S.W. 75; Flack v. Santa Fe, 285 Mo. 48. (c) Deceased assumed the risks incident to his employment. Junior v. Elec. Light & Power Co., 127 Mo. 79; Biddlecom v. Nelson Grain Co., 178 S.W. 750; Roberts v. Tel. Co., 166 Mo. 370; Shelton v. Light & Power Co., 258 Mo. 534; Flack v. Ry. Co., 285 Mo. 50. (2) Manifest error was committed by the trial court in giving instructions. They are erroneous, misleading and contradictory. (a) Instruction number 1 broadens the issues in that it submits that appellant owed deceased the highest degree of care and foresight, while the petition does not charge the duty of the highest degree of care and foresight. Daniels v. Prior, 227 S.W. 105; Champion Coated Paper Co. v. Shilkee, 237 S.W. 111; Degonia v. Railroad, 224 Mo. 589; Stidd v. Railroad, 236 Mo. 382, 400; Schumacher v. Breweries Co., 247 Mo. 162; State ex rel. v. Ellison, 270 Mo. 653. (b) Instruction number 2 omits issues tendered in the answer as to the use of safety appliances, and singles out the use of rubber gloves; when the answer and evidence showed that not only rubber gloves were used, but rubber blankets and lineman's protectors were furnished. Clark v. Hammerle, 27 Mo. 155; Wingfield v. Railroad, 257 Mo. 347, 372; Hollis v. Light & Power Co., 224 S.W. 158; Van Bibber v. Swift & Co., 228 S.W. 69.

Butcher & Knoop for respondent.

(1) Where no demurrer was filed in the trial court, the petition is good, if it indicates the existence of a right of action in the plaintiff. Snyder v. Wagner Electric Mfg. Co., 223 S.W. 914; Young v. Iron Company, 103 Mo. 324; Thompson v. Stearns, 208 Mo.App. 346. (2) The petition is sufficient. It was the duty of the appellant to use every accessible precaution to insulate its wires at points where people are required to be and to use the same care to keep the wires so insulated. Geisman v. Missouri-Edison Electric Co., 173 Mo. 654; Kile v. Union Electric Light & Power Co., 149 Mo.App. 354; Sudmeyer v. United Railways Co., 228 S.W. 64; Van Trebra v. Gaslight Co., 209 Mo. 648; Snyder v. Wagner Electric Mfg. Co., 223 S.W. 911; McLaughlin v. Electric Light Co., 100 Ky. 173; Hill v. Light & Power Co., 260 Mo. 43; Overall v. Electric Light Co., 47 S.W. 442. If the portion that the appellant claims is a mere conclusion be treated as surplusage, there still would remain sufficient facts to constitute a general allegation of negligence and that would be sufficient to support a judgment. Heckfuss v. Packing Co., 224 S.W. 99; State ex rel. v. Reynolds, 287 Mo. 697. (3) Plaintiff proved that he was rightfully upon the pole; that he came in contact with defendant's wire; that when he did so there was a fire at the point of contact and plaintiff's hand and glove were burned and he was rendered unconscious. This makes a prima-facie case. Van Trebra v. Gaslight Co., 209 Mo. 648; Sudmeyer v. United Railways Co., 228 S.W. 64; Geisman v. Missouri-Edison Electric Co., 173 Mo. 678; Hill v. Light & Power Co., 260 Mo. 63; Clark v. Railroad, 234 Mo. 396. It was not necessary for plaintiff to show that the insulation was off of the wire at the point of contact. Van Trebra v. Gaslight Co., 209 Mo. 659. (4) There is no assumption of risk by the servant of any danger or injury flowing from the master's negligence. Sudmeyer v. United Railways Co., 228 S.W. 68. The servant only assumes such risks as are incident to the service after the master has performed his duties. Although the dangers may be obvious, if this is due to lack of care on the part of the master, the servant does not assume the risk. Williamson v. Light & Power Co., 219 S.W. 904; Yongue v. Railroad, 133 Mo.App. 153. The servant does not and cannot assume the risk caused by the master's neglect. Bradly v. North Central Coal Co., 167 Mo.App. 177. (5) The proximate cause of Milligan's injuries was the failure of appellant company to properly insulate its wires and not any possible slipping of Milligan or the ladder on which he was standing. Trout v. Laclede Gas Light Co., 151 Mo.App. 207; Sudmeyer v. United Railways Co., 228 S.W. 64; Musick v. Dodd Packing Co., 58 Mo.App. 333. (6) Plaintiff's instruction numbered 1 properly declared the law. Campbell v. Traction Co., 178 Mo.App. 527; Hill v. Light & Power Co., 169 S.W. 351; Geisman v. Missouri-Edison Electric Co., 173 Mo. 673.

OPINION

Ragland, J.

This is an appeal from a judgment for $ 10,000, rendered April 15, 1921, in favor of one Frank Milligan and against the Kansas City Light & Power Company, for personal injuries sustained by the former while in the latter's employ. The cause was argued and submitted in Division Two of this court at the April term, 1923, and an opinion was written. On the dissent of one of the judges of that division the cause was transferred to Court en Banc.

Milligan died on May 10, 1922, pending this appeal, and his administratrix was substituted as respondent. To avoid confusion of statement he will be referred to as the plaintiff, and the appellant, Kansas City Light & Power Company, as the defendant.

Plaintiff was a lineman. At the time of his injury he was at work on a pole which was one of a line of poles extending east and west on the north side of Thirty-first Street in Kansas City. It was an iron pole eighteen feet high, with a wooden extension of five and one-half feet at the top. On the iron pole just below the wooden extension there were two iron cross-arms; on the wooden top there were two wooden cross-arms, from fourteen to sixteen inches apart. The lower wooden cross-arm was approximately two and a half feet above the upper iron cross-arm. The iron cross-arms carried the wires of the Kansas City Railways Company and the wooden ones those of the defendant. One of defendant's wires, a 4000-volt feeder wire, was carried on the south side on the top wooden cross-arms of the line of poles, attached to the second pin from the pole. This wire was being transferred to the pin next to the pole.

The crew engaged in the work of transferring the feeder wire consisted of a foreman, two linemen (plaintiff and one Ebeck), a ground man and a wagon driver. The manner of doing the work was this: A wooden ladder was put up between the wires of the Railways Company so that the top rested against the top iron cross-arm on the pole; a lineman then climbed the ladder and, while standing on one of the upper rounds, unwound the tie-wire holding the feeder wire to the insulator on the outer pin, moved that wire to the inside pin and then tied it. The two linemen alternated in doing the work, one of them taking one pole and the other the next.

On the occasion of plaintiff's injury he climbed the ladder and stood on the second round from the top preparatory to making a transfer of the feeder wire from the outer pin to the inner one on the top wooden cross-arm. His shoulder was about even with that cross-arm. His feet, on the wooden round of the wooden ladder, were, as to elevation, about half way between the two iron cross-arms. The space between the closest wires where he had to work was thirty-six inches. When he got into the position just described he put his safety belt around the pole, took his pliers in his right hand and unwound the end of the tie-wire on one side of the insulator. He then placed his pliers in his left hand and reached over to untie the other side. As he did so either he or the ladder slipped so that his feet landed on an iron cross-arm. He thereby became grounded and instantly received the current from the heavy voltage feeder wire. His injuries from the shock and burns were severe, the most serious being an impairment of vision.

The feeder wire was uninsulated. It was merely covered with a composition designed chiefly to protect it from the elements. This weather-proofing, however, was in perfect condition. The evidence showed without contradiction that wires with only such covering, that is, weather-proof insulation so-called, were in general use for outdoor overhead construction by companies engaged in operating electric light and power plants like that of defendant.

Defendant furnished its employees who were required to work in and about or with live wires the same devices for protection that were used generally by others engaged in the...