Pulsifer v. City of Albany

• Citation: 47 S.W.2d 233
• Decision Date: 07 December 1931
• Docket Number: No. 16681.,16681.
• Parties: JOE R. PULSIEER ET AL., RESPONDENTS, v. CITY OF ALBANY, APPELLANT.
• Court: Court of Appeal of Missouri (US)

47 S.W.2d 233

JOE R. PULSIEER ET AL., RESPONDENTS, v. CITY OF ALBANY, APPELLANT.

No. 16681.

Kansas City Court of Appeals. Missouri.

December 7, 1931.

Appeal from Circuit Court of Harrison County. — Hon. A.G. Knight, Judge.

AFFIRMED.

Kelly, Bucholz & O'Donnell for respondent.

Cook & Cummins and F.P. Stapleton for appellant.

BOYER, C.

The respondents, plaintiffs below, instituted this action to recover for the wrongful death of their unmarried minor son, Lawrence Pulsifer, who died July 29, 1928, from the result of an electric shock received by coming in contact with a transmission wire on July 24, 1928. The suit was instituted against the city of Albany, a city of the fourth class, and the Darlington Electric Light Company. Before submitting the case to the jury, plaintiffs dismissed as to the Darlington Company. Upon evidence offered by both sides the jury found for plaintiffs in the sum of $5000; judgment was entered accordingly, and the city of Albany duly appealed.

The errors assigned and points made in the brief pertain to the action of the court in overruling a demurrer to the evidence; the admission of testimony; the giving of instructions at the request of plaintiffs; the refusal of instructions requested by defendant; and that the verdict is excessive.

There is evidence of the following facts. The city of Albany is the county seat of Gentry County. It is located in the valley on the east side of Grand River. It owned and operated an electric light plant at which place it generated, sold, and distributed electric current to the citizens of that city and to others. The village of Darlington contained about 400 inhabitants and was located in the same valley on the opposite side and down stream about five miles from Albany. In the year 1919, certain citizens of Darlington organized and incorporated the Darlington Electric Light Company for the purpose of procuring electric lights in the village of Darlington. On May 22, 1919, the city of Albany, as party of the first part, entered into a contract with the Darlington Electric Light Company, as party of the second part, by the terms of which the first party agreed to deliver to the second party all the electric current it might require from its electric plant at Albany for a term of twenty years at the price of five cents per kilowatt. It was agreed that the first party should deliver the electric current with sufficient voltage at the point of generation to give a constant voltage of not less than 110 volts at lamp sockets in Darlington, same to be delivered at the city limits of Albany. There was further provision for measuring the current at the city limits of Albany, and it was further agreed that the city of Albany would supply proper poles and lines of wire from its plant to the city limits "to connect at the point aforesaid with a proper line of poles and wire to be constructed with two phase line No. 8 copper wire and which said second party hereby binds itself to construct and properly maintain, during the life of this contract from said Albany city limits to Darlington, Missouri, and to such points beyond as it may desire for the proper conducting of such electric current so to be supplied by the said first party." Then follow these two paragraphs:

"It is further agreed, and is of the essence of this contract that the said electric current, so to be supplied, and to be used at Darlington, Missouri, or in the vicinity thereof or to customers of said Darlington Electric Light Company between the city limits of the said city of Albany and the terminus of the lines of the said Darlington Electric Light Company, is to be carried and conducted at the current loss and risk of said second party, and that said second party will protect the said first party from any damage, loss or harm occasioned by any accident, negligence, or lack of proper care or maintenance of said above described line of poles and wires to be constructed by second party from said city limits of Albany to the terminus of said line at Darlington, Missouri; or within or beyond Darlington, Missouri, in any cause of action for damages or otherwise occasioned by reason of the construction and operation of such said line from the city limits of Albany to its terminus.

"It is further agreed that should the electric lines of said second party be out of order, so that it might be or become dangerous or unsafe to use the same that the proper officers of said Darlington Electric Light Company, shall notify the proper officers of said first party, if they desire, that for above or any reason, current shall be cut off until such defect be remedied, said first party upon receipt of such notice, will cut off such current, but in that event the minimum rate hereinafter named to be paid to said first party, by said second party, shall not abate by reason of any such stoppage of current for any such or other reasons, not the fault of first party."

There were other provisions not necessary to mention.

It is a fair inference, if not expressly shown, that the Darlington Electric Light Company was not organized and did not conduct its business for profit, but its main object and purpose was merely to create an agency by virtue of which the village of Darlington could obtain light, and that the City of Albany was engaged in producing and selling electric current for profit. It supplied customers outside the city of Albany as well as its own inhabitants. The Darlington company installed its distributing system and built a transmission line of poles and wire from Darlington to the transformer and meter at the city limits of Albany. The line ran through the valley adjacent to the river and across it. At one point the line passed adjacent to and upon the land known as the "Marble farm" and along the west line of a public road at that place which ran north and south on the west side of the river. This point was about two miles from the City of Albany and was the scene of the tragedy. Some years after the transmission line was built a public drainage corporation straightened the channel of the river, and at the Marble farm cut a new channel along the east side of and parallel to the public road which brought the channel of the river much closer the transmission line at that point. The banks of this new channel were finally cut to such an extent that a pole in the transmission line was displaced and slipped down in the channel and lowered the wires attached to it near the ground. Prior to this time the banks of the river had been caving in and a bridge across the river together with a part of the transmission line crossing the river fell in. Some of the poles of the line went down about two or three years before. Mr. Pulsifer, one of the plaintiffs, was lessee of the Marble farm during the year 1928 and previous thereto, and in the season of that year the field adjacent to the river and the transmission line was in wheat. At the time he went to harvest his wheat the lines of wife were sagging in the field over his wheat so that he was unable to cut a part of it. This was early in the month of July. There is testimony that at that time the mayor of the city of Albany was notified of the condition of the transmission line, but this evidence is controverted. The wheat in the field was placed in shocks. Friday evening preceding the accident, which took place on the following Tuesday, there was a heavy rain after which a pole was discovered to be in the river and the wires down. There was evidence that notice of this fact was conveyed to one of the aldermen of the city of Albany, but he denies receiving notice. There was also testimony that one of the operators of the electric plant of Albany was also notified of the condition two or three days before the accident. At the time of the trial he was deceased. There was evidence that the pole was down on Sunday and that on Saturday evening a blaze two or three feet high was observed at or near the place where the pole was down and where the wires were burning brush or vegetation. During the past year the same character of burning had been observed two or three times where the wires were sagging low.

On Sunday the storm had ceased, and the channel was about half full of water. During the afternoon of the following Tuesday, July 24, Mr. Pulsifer in company with one Shelby, his son Lawrence, and another boy Delbert Fitzsimmons, went to the wheat field for the purpose of scattering the wheat shocks. They entered the field at a point about fifty yards west of the river and the transmission line. The two men were to work together going to the northwest, and the two boys were to work together going to the northeast along the river. As they were about to separate Mr. Pulsifer noticed a short distance ahead of them that the river bank had caved off and let one of the poles of the transmission line slip endwise down the bank bringing the wire near the ground. He says: "I just spoke to them and they went right on, never even looked back or said nothing." They separated and began their work. In about about five minutes the men observed smoke rising near the river and not seeing the boys the men hurried over to the river bank and there found the boys lying on the ground in contact with the wire Lawrence had hold of the wire with one hand: Shelby struck the wire with a pitchfork and broke it. The Fitzsimmons boy was dead and Lawrence Pulsifer was unconscious, in which condition he remained until his death on the 29th. It is conceded that both boys met their death by coming in contact with the electric wire. There is no testimony of any eyewitness as to how or why they came in contact with the wire.

There is evidence that the transmission line was improperly constructed and was inadequate and dangerous for the purpose of carrying 6600 volts of electricity which was the measure of the current sent through it; that the poles were too far apart and carried too great a...