Platt v. Cape Girardeau Bell Telephone Co.

• Decision Date: 09 January 1929
• Docket Number: No. 20365.,20365.
• Parties: PLATT v. CAPE GIRARDEAU BELL TELEPHONE CO. et al.
• Court: Missouri Court of Appeals

12 S.W.2d 933

PLATT v. CAPE GIRARDEAU BELL TELEPHONE CO. et al.

No. 20365.

St. Louis Court of Appeals. Missouri.

January 9, 1929.

Rehearing Denied February 5, 1929.

Appeal from Cape Girardeau Court of Common Pleas; O. A. Knehans, Judge.

"Not to be officially published."

Action by Vernal Andrews Platt against the Cape Girardeau Bell Telephone Company and another. Judgment for plaintiff for nominal damages. Plaintiff's motion for new trial was sustained, and defendants appeal. Affirmed and remanded.

Oliver & Oliver, of Cape Girardeau, for appellants.

Hardesty & Limbaugh, of Cape Girardeau, for respondent.

SUTTON, C.

Plaintiff brings this action for damages for the wrongful death of her husband, Sam Andrews. The petition is in two counts. In the first count, plaintiff charges that she executed to defendants a release of her cause of action against them, that she was under the age of 21 years at the time she executed the release, and was therefore incapacitated to give such release, and prays that the release be canceled, set aside, and for naught held. In the second count, she charges that her husband's death resulted from the negligence of the defendants while he was engaged in work as an employee of the defendant Cape Girardeau Bell Telephone Company, and prays judgment for damages in the sum of $10,000. Defendants confessed the first count of the petition, and the cause went to trial on the second count alone. The trial was had with a jury, and resulted in a verdict in favor of plaintiff for $1. Judgment was duly rendered in accordance with the verdict. Plaintiff in due time filed her motion for a new trial. The court sustained said motion, and granted plaintiff a new trial, on the following grounds, as shown by its order duly entered of record, to wit: "(1) That the verdict is against the weight of the evidence, (2) that the verdict is inadequate, (3) that the court erred in admitting incompetent and prejudicial evidence offered by the defendants over the objection of the plaintiff." Afterwards, during the same term at which the order for a new trial was made, the court made and entered of record the following order: "Motion for a new trial now again taken up and the court orders that one of the reasons given for sustaining motion for new trial be eliminated, to wit: That the verdict is against the weight of the evidence." From the order granting plaintiff a new trial, defendants appeal.

The death of plaintiff's husband resulted from contact with a service wire belonging to defendant Missouri Utilities Company, which company was engaged in distributing electricity for light and power. The utilities company's wires were strung on poles on the east side of Sprigg street. The telephone company's wires were strung on poles on the west side of Sprigg street. High-voltage wires occupied the poles of the utilities company, about 40 or 45 feet above the ground. In addition to the high voltage wires on these poles, there were primary wires, on a lower level, which distributed the electrical current to transformers for commercial and domestic use. These primary wires usually carried 2,300 volts. The purpose of the transformers was to step down the current carried on the primary wires from 2,300 to 110 volts, so that it could be used in residences and for commercial purposes. There was a transformer just under the primary wires on the pole of the utilities company opposite where deceased was at work at the time he was killed. Two service wires ran from this transformer to the Himmelberger home, crossing the wires of the telephone company, on the west side of Sprigg street. There was a steel wire cable, called a messenger, strung on the poles of the telephone company. A leaden cable containing telephone wires was attached to, and suspended underneath, this messenger by means of rings. Some time prior to the accident which resulted in the death of plaintiff's husband, the leaden cable had been removed from this messenger to a lower level, and the deceased, at the time he met his death, was engaged in removing the rings from the messenger. The deceased was seated in a safety chair, or cable car, suspended from the messenger by means of a device having rollers with deep grooves which rested on the messenger, so that the deceased could pull himself along the messenger by taking hold of the messenger in the performance of his work. There were several shade trees, with heavy foliage, on the west side of Sprigg street, and the service wires of the utilities company and the wires of the telephone company crossed each other in passing through the foliage of one of these shade trees. The wires were to some extent concealed or hidden by the foliage. One of the service wires passed over, and the other under, the wires of the telephone company. It was customary for the service wires of the utilities company, where they crossed the wires of the telephone company, to be located above the wires of the telephone company. This was done in order that the service wires, which carried an active electric current, would not interfere with the employees of the telephone company in working on the telephone wires, which carried no appreciable current. It was also customary for the service wires of the utilities company to be insulated to avoid injury to persons who might come in contact with them. The service wires which caused the death of plaintiff's husband were not insulated. They had been previously insulated, but the insulation had been worn off from rubbing against the branches of the tree. This uninsulated condition had existed for more than a year at the time the deceased met his death. The voltage of the electric current carried by the service wires depended upon the proper functioning of the transformer. If the transformer was functioning properly, they carried a voltage of 108 to 120, but, if the transformer was not functioning properly, the voltage might become much heavier; in fact, the entire 2,300 volts carried by the primary wires might get through the transformer onto the service wires. There was evidence of a charred condition of the telephone pole beneath the transformer supplying the service wires to the Himmelberger home, which indicated the transformer was leaking and not functioning properly. Some of the witnesses testified that uninsulated service wires carrying 108 to 120 volts were dangerous to persons coming in contact with them. Others testified that there was no danger in such wires.

Arthur Bock, who was the only eyewitness to the accident resulting in the death of plaintiff's husband, testified:

"I have been working for the Cape Girardeau Bell Telephone Company about seven years as a common laborer, and, on July 29, 1926, was working on Sprigg Street, picking up old rings that were being taken off of the messenger by Sam Andrews. I was on the ground, and he was sitting in the cable car. The car was hanging on the messenger, and was about twenty feet from the ground. I picked up the rings as he dropped them. I could not see him for the branches of the trees, but he asked me, `What is this bare wire doing up here?' and I said, `I don't know,' and I looked across the street and saw where the wire went over to Himmelberger's home, and I told him to lay off of it, that it was a service wire and carried about 110 volts. I couldn't see the wire he had referred to, and I couldn't see him at the time, for the branches and limbs of the trees kept me from seeing him from where I was. They were maple trees, and thick with leaves. Part of the tree where he was working was above him, and the limbs were very thick. After I told him to lay off of that wire, he got into it some way or other; anyway I heard him groan, and I said, `What is the matter, Sam, has it got you?' He said, `Yes, it has got me.' I went out in the street and hollered for help, and I could hear Andrews up in the tree but couldn't see him. While I was out in the street Sam fell, and when I turned around I saw him lying there in the street. The cable car was on the ground about twenty feet north of him. I didn't see either one fall, and I couldn't see when he left the car. I went over to him after he fell and shook him, but I got no answer. He might have drawn a breath or two, but not many. He did not say a word."

M. G. Eggers testified:

"I am employed by the Cape Girardeau Bell Telephone Company. I have been working for them since August 11, 1925. My position with the company at the present is city foreman, and I held that position on July 29, 1926. There were about two or three men working under me at that time. At that time I was working on Broadway. Between 3 and 3:30 o'clock I put Sam Andrews to taking off cable rings off the messenger on the west side of Sprigg Street. The distance he was from the ground was somewhere in the neighborhood of twenty to twenty-five feet. I had Mr. Bock picking up the rings as Andrews took them off. While Andrews was at work he was in a cable car or safety chair. It is made with a hook with rollers with grooves in them that go over the messenger. The...