Potter v. Sac-Osage Elec. Co-op., Inc.

• Court: Missouri Supreme Court
• Writing for the Court: WESTHUES
• Citation: Potter v. Sac-Osage Elec. Co-op., Inc., 335 S.W.2d 192 (Mo. 1960)
• Decision Date: 11 April 1960
• Docket Number: No. 1,SAC-OSAGE,No. 47547,47547,1
• Parties: Donald Melvin POTTER, a Minor, and Robert Preston Potter, a Minor, by Their Next Friend, Mildred Potter, Plaintiffs-Respondents, v.ELECTRIC COOPERATIVE, INC., Defendant-Appellant

Page 192

335 S.W.2d 192

Donald Melvin POTTER, a Minor, and Robert Preston Potter, a Minor, by Their Next Friend, Mildred Potter Plaintiffs-Respondents, v. SAC-OSAGE ELECTRIC COOPERATIVE, INC., Defendant-Appellant.

No. 47547.

Supreme Court of Missouri, Division No. 1.

April 11, 1960.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 9, 1960.

Lynn M. Ewing, Jr., Ewing, Ewing, Ewing, Carter & Wight, Nevada, Mo., for appellant.

Foust & Lyons, and Walter A. Raymond, Kansas City, for respondents.

WESTHUES, Judge.

Plaintiffs Donald Melvin Potter and Robert Preston Potter, minors, by their next friend, Mildred Potter, filed this suit to recover damages for the death of their father, Melvin Potter. In the petition, it was alleged that the death was caused by the negligence of the defendant Sac-Osage Electric Cooperative, Inc. A trial resulted in a verdict for plaintiffs in the sum of $25,000. From the judgment entered, the defendant appealed.

Defendant, in the brief, contends that the deceased Melvin Potter was guilty of contributory negligence as a matter of law. Other points briefed have to do with instructions given by the court.

The evidence introduced at the trial justifies the following statement of facts: Preston Potter, brother of the deceased, lived on a farm in Cedar County, Missouri. The defendant had constructed a line to Preston's home and was furnishing electric current for general use at the farm. A neighbor of Preston desired to be served with electricity by the defendant company and made application therefor. To accommodate the neighbor and the defendant, Preston gave permission for an extension line to be built from his home to the home of the neighbor. To reach the neighbor's home with electric service, it was necessary to construct a line from Preston's home to the neighbor's across Preston's farm. This line was constructed about April, 1956.

Preston testified that a representative of the defendant came to his place to determine where the poles should be set and the line constructed; that he showed defendant's agent the spot where he intended to construct a Butler grain storage bin; that this bin was to be within a few feet of and similar to a bin that had been previously constructed. He further testified that the proposed line was to be above this new bin; that defendant's representative, Evan Neely, and he (Preston) talked about that. Note Preston's evidence:

'Q. Go ahead and tell the rest of the conversation you had with Evan Neely? A. We went back up by the old oak tree and I had some gravel and rock piled there, a load of gravel, and Evan wanted to know if I was going to build something and I said: 'Yes, I want to build another steel bin.' He said it would be all right to go ahead because they would have to put taller poles on each side from where we was standing by the steel bin, because it was across my driveway and around where my machinery was stored; that they would have to be taller poles so it would be safe enough.

'Q. You mentioned a pile of rock and a pile of gravel--exactly where was the pile of rock? A. The pile of rock was right in the center of where I built this second bin, grain bin.'

The new bin was constructed in early June, 1956. On the tenth day of June, Preston and his father, Ray Potter, moved an elevator to the new bin intending to use it to convey barley into the bin for storage. On the following day, the barley was to be harvested. This bin, called a Butler bin, constructed of metal, was round, about 14 feet in diameter, and 8 feet in height to the eaves. Above the eaves there was a dome-like top. At the top of this dome, cone, or slope, was a flange around an opening or hole 18 inches in diameter. Around this opening was a circular body about 4 to 6 inches high, having the appearance of a stove pipe. Witnesses in their evidence often referred to this stove-pipe like extension as a cone. The grain to be stored therein was to be conducted to the top of this cone by an elevator where it would be dropped into the bin through the opening of this cone. The Potters' elevator had no down spout so, to keep the grain from going over the opening and 'to bump the grain down in the bin' through the cone as it left the elevator, the Potters attempted to place a piece of tin, about 5 feet in length and about 2 feet wide, partially in the cone so as to make a backstop to force the grain into the bin. Preston, using a ladder, climbed upon the bin with a piece of tin and a wire to fasten the tin to the cone. While he was standing on the flange at the top of the bin, he crimped the tin to place it in the cone and then in some way he flipped the wire around the cone and as he did so, it came in contact with the 'hot' wire of the defendant company, causing Preston to be thrown from the bin. He was taken to a hospital where he recovered. Evidently he was not seriously injured. Defendant's wire which carried over 7,000 volts was about 6 feet above the bin. The lower wire was about 3 feet above the bin. The wires, one above the other, were only 6 inches from a line flush with the edge of the hole at the top of the bin.

The next morning, Melvin Potter, the deceased, who lived in the neighborhood went to Preston's (his brother's) place where he, Melvin, and his father attempted to arrange matters so the barley could be harvested and the grain stored in the bin. Melvin's father, who had helped Preston the day before and had witnessed what happened to Preston, informed Melvin what had occurred. No one in the Potter family seemed to have known much about electricity. Melvin and his father, so the evidence showed, conceived the idea of placing some rubber around the lower wire and tying it back away from the bin. They did not know that this wire was harmless. After the lower wire was tied back, Melvin, with the same piece of tin that Preston had had the day before, climbed on top of the bin, stood on the flange next to the cone or opening, crimped the tin so it would fit in the round opening of the cone, lifted it above the cone, and, as he was about to place it therein, he evidently received a shock of electric curent and he fell from the bin. Members of the family who were present went to him and found that he was dead.

Looking on and watching Melvin while he stood on the bin were his father, his wife, and Preston's wife. Melvin had been told by his father that Preston had been knocked from the bin the day before because the piece of wire he had in his hand had touched one of the electric wires. That was the reason Ray Potter and Melvin decided to pull the lower wire away from the bin and to tie it back out of the way. The father testified as follows:

'Q. Which wire was it that you were going to tie back? A. Well we didn't know which was the hot wire but we tied the bottom wire back.

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'Q. Did you do anything else besides put the rubber over the line and then tie something on the end of the rubber to pull the bottom line back? A. Well we cut a few limbs off of the tree there so we could get it back out of the way.

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'Q. Then after you had tied this bottom wire back then what did you do? A. Well, Melvin got the tin and ladder up and went up on the top there to put the tin in the place.

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'Q. As he went up the ladder and up toward the top of the bin what were you doing? A. I was just watching him, telling him to be careful and be sure and not touch that wire.

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'Q. Will you describe Melvin's movements from the time he got to the top of the ladder up to the cone? A. Well he went right on up to the cone and got his tin straightened out and just dropped it in the cone there and about that time there was something that clicked and he turned and just fell off of there.

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'Q. Will you just tell this jury what you did with respect to watching Melvin and the tin as he walked up to this cone and as he started to put the tin in the hole? A. I just watched the top of the tin as he went up to be sure that he didn't get noways near that wire with it.

'Q. Did you watch the top of the tin continuously? A. Yes, sir.

'Q. Did you ever at any time from the time that Melvin started up toward the cone until the time you heard the click and saw him fall off, see the tin touch any line? A. No, no, it never did touch.

'Q. What is the closest, based upon your observation, that that tin ever came to that power line, the one that hadn't been moved? A. I'd say a foot anyway.'

On cross-examination, he testified:

'Q. You decided that the way to do this was to tie the bottom wire back? A. We didn't know which was the hot wire so we just tied the bottom wire back, we could get to it easiest and that would give us room--the other wire was above where we wanted to put the tin anyway.

'Q. You didn't know which wire was hot? A. No.

'Q. You didn't know which of these lines had caused the injury? A. No.'

Maxine Potter, wife of Preston, testified as follows concerning what she witnessed 'Q. As he went up that ladder and up that roof exactly what were you doing? A. I was watching the piece of metal he had in his hand to see that it didn't touch the wire.

'Q. Did you watch it constantly from the time he started up the ladder until he got up to the cone? A. Yes, sir.

'Q. Did you ever at any time take your eyes off of him? A. No, sir, I did not.

'Q. Now, will you tell the jury in your best judgment how far the top of the piece of tin was from this highline wire that had not been moved when you heard the crackle and saw the light? A. Oh, it must of been 8 to 12 inches--eight inches to a foot I'd say.

'Q. Is that your best judgment? A. It would be my best judgment.

'Q. At no time did you take your eyes off of that piece of metal from the time he started up the building? A. No, sir.

'Q. What were you out there for? A. To watch to see that he didn't get into that wire.

'Q. After you saw the flash and heard the crackle what...