Myers v. City of Independence

• Decision Date: 03 July 1916
• Docket Number: No. 17907.,17907.
• Citation: 189 S.W. 816
• Parties: MYERS v. CITY OF INDEPENDENCE.
• Court: Missouri Supreme Court

189 S.W. 816

MYERS v. CITY OF INDEPENDENCE.

No. 17907.

Supreme Court of Missouri, Division No. 1.

July 3, 1916.

Motion for Rehearing Denied July 18, 1916.

Motion to Set Aside Order Denying Motion for Rehearing Stricken from Files December 1, 1916.

Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge.

Action by Roy L. Myers against the City of Independence. Judgment for plaintiff, and defendant appeals. Affirmed.

Blackmar & Bundschu and Warner, Dean, McLeod & Langworthy, all of Kansas City, for appellant. E. C. Hamilton and Jno. F. Thice, both of Independence, and White, Hackney & Lyons, of Kansas City, for respondent.

BROWN, C.

This action was instituted in the circuit court for Jackson county May 7, 1911. The defendant is a city of the third class, and owns and operates an electric light plant for furnishing light to the city and its inhabitants, in the maintenance and operation of which the injury complained of was received by plaintiff. The petition, after the necessary formal allegations, states, in substance, that on November 21, 1910, plaintiff who was employed by the defendant as lineman, was directed by it to assist in disconnecting certain of its wires, and afterward to replace and reconnect the same, and that while engaged in doing so, and without any negligence on his part, the injury occurred as follows:

"The defendant negligently and carelessly permitted a deadly current of electricity to traverse the wires among and upon which he was working, without warning to him, when it knew, or might by the exercise of ordinary care have known, that plaintiff was working among, with, and upon the said wires along which said deadly current of electricity would travel."

It then states, in substance, that by reason of such carelessness and negligence of defendant the index finger of plaintiff's right hand was burned off, and the remaining portion of said hand was so burned that the middle finger of said hand and other portions thereof had to be cut away so that plaintiff was deprived of all practical use thereof; that the said deadly current of electricity burned into his left side, by which a lower left rib was so charred and burned that a portion of it had to be removed; that while entangled with said wires his clothing took fire from said current of electricity, burning the entire left side of his body, so that portions of the burned flesh had to be scraped and cut away and skin taken from other portions of his body grafted thereon, by all of which he suffered great bodily pain and mental anguish, lost much time from his work, was put to great expense for medical services and nursing, his earning capacity permanently impaired so that he will be unable to earn an adequate livelihood by reason thereof, and will continue to suffer great physical pain and mental anguish from said injuries—for all of which damages in the amount of $30,000 were asked.

The defendant filed his motion to make the petition more definite and certain on the grounds that it does not allege wherein and in what respect defendant was negligent, nor how or by what means said current of electricity was permitted to traverse said wires, nor by what person or agency said current of electricity was caused to traverse said wires. It then prays that the plaintiff be required to state wherein and in what respect defendant was negligent, if at all, and how and by what means the said current of electricity was permitted to traverse said wires, and by further stating by what person or agency said current of electricity was permitted or caused to traverse the wires. The motion was overruled by the court, and, after duly saving its exception to the ruling, the defendant answered, admitting its incorporate capacity, and denying generally the other allegations of the petition. It also pleaded that the plaintiff assumed all risk with respect to the matter alleged as cause of his injury, and that he was guilty of negligence directly contributing to his injury: (1) By making the splice or connection in which he was engaged when injured without the use of rubber gloves or other nonconducting material, when he knew, or by the exercise of ordinary care would have known, that their use would have been safer, and would have prevented the accident; (2) in making said splice or connection while working above the cross-arm instead of working below it, thus increasing the danger of his position; (3) in making the splice or connection while working below the cross-arm with two wires known as primary and secondary wires between his body and the wire upon which he was working, so that his body came in contact with said two wires, increasing the danger—all of which was known or might by the exercise of ordinary care have been known to plaintiff; and in making the splice between the eccentrics of the instrument used in drawing the wires together instead of outside them, which he knew, or from his experience should have known, was safer and less dangerous.

The new matter was denied by replication, and certain instructions were given at the instance of the plaintiff designated as A, B, E, and G, of which the defendant complains. The first three of these need not be copied here as they involve a general proposition which will be noticed in its place.

Instruction G is as follows:

"The court instructs the jury that, if you believe that any witness has willfully testified falsely to any material fact, then you are at liberty to disregard the whole or any part of the testimony of such witnesses."

The court refused instruction No. 3 asked by defendant, which is as follows:

"The court instructs the jury that the law places the burden upon the plaintiff to make out his case by the preponderance or the greater weight of the credible evidence. The mere fact that the plaintiff, Roy Myers, was injured while working for the city of Independence, does not, standing alone, entitle him to recover anything in this case. Before the plaintiff is entitled to recover a verdict in his favor, he must prove his case to your satisfaction by the greater weight of the credible evidence, and unless he has done so you must disregard the fact that he received injuries and return your verdict in favor of the defendant, city of Independence."

There were also objections made and exceptions saved with respect to certain remarks of counsel and occurrences at the trial to which we will refer as necessary.

The general facts shown by the evidence are as follows: The plaintiff was between 23 and 24 years old, and had been employed as lineman for a telephone company, the wires of which were charged with electric currents of moderate and comparatively harmless intensity, for more than 2 years, and had been at work for the defendant in the same capacity in connection with its electric lighting system nearly 2 months. He was not an electrician, and his duties had no connection whatever with the operation of its generating plant, but were confined entirely to work in connection with its posts and wires. The plant not only furnished arc lamps for streets and other public purposes, but also furnished incandescent lights for private use through what is called in the evidence its commercial system. Its wires were strung along Delaware street, where plaintiff was injured, on a single line of posts with a single cross-arm near the top. The street ran north and south. There were five electric wires fastened to insulators attached to and above the cross-arm. The west wire was a primary wire of the commercial system, carrying 2,300 volts. This was distributed through transformers which reduced the current to 110 volts to a secondary wire which came next on the cross-arm and from which the current was furnished at that voltage to the commercial consumers, and then came the pole, on the east side of which the first wire was a secondary wire and the next the primary wire carrying the same voltage as the corresponding wire on the west side. Then came the arc wire carrying an alternating current of 4,300 volts—a deadly current under ordinary circumstances. These wires were insulated, and were about 14 inches apart, except that the distance between the two secondary wires where the pole intervened was about 17 inches. The injury occurred at about 5 o'clock in the afternoon. Early in the same afternoon the plaintiff and his helper had, at the direction of the superintendent, cut the wires about 14 inches from the north side of the same pole and rolled them up for the purpose of permitting the removal of a tree. After it was removed the plaintiff and another employé named Rogers were instructed by the foreman to restring the wires, and for that purpose the plaintiff undertook to make the splices at the top of the pole; Rogers, his assistant, doing the ground work. The arc wire was not in use and carried no current during the day. The current on that wire was handled at the power house. Before going to work on the splices the plaintiff was told to go to Maple avenue and pull the plugs by which the current was turned off the two primary wires, which he did. He then returned, and mounted the pole with his spurs until his head and shoulders were above the cross-arm at which the work was to be done. His spurs were fixed in the pole, while his safety belt was secured around his hips and passed over the cross-arm, so that by leaning back upon it he was free to work with both hands toward the east and west. This, he says, was the only position in which it was practical for him to do the work. In this position the two primary wires were brought together and spliced; then the two secondary wires next to the pole on each side. There was no indication of any current in either of these four wires, which had been cut out and killed by pulling the plugs at Maple avenue. He then began work on the arc wire. He scraped the insulation from each of the ends that were to be spliced together. During this time there was...