Roehrman v. D.S. & O. Rural Elec. Co-op. Ass'n, CO-OP

• Decision Date: 09 May 1953
• Docket Number: Nos. 38936,CO-OP,38937,s. 38936
• Citation: 174 Kan. 498,256 P.2d 872
• Parties: ROEHRMAN v. D. S. & O. RURAL ELECTRICASS'N, Inc. et al.
• Court: Kansas Supreme Court

Page 872

256 P.2d 872

174 Kan. 498

ROEHRMAN v. D. S. & O. RURAL ELECTRIC CO-OP. ASS'N, Inc. et al.

Nos. 38936, 38937.

Supreme Court of Kansas.

May 9, 1953.

Rehearing Denied June 12, 1953.

Syllabus by the Court.

The petition in an action to recover damages for personal injuries sustained by the plaintiff as a result of having come in contact with a high tension line used for the transmission of electricity examined, and it is held, that the trial court did not err in (1) overruling the defendants' separate demurrers to the petition or (2) in striking certain allegations, set forth in the opinion, from that pleading.

N. E. Snyder, of Kansas City, and Edwin R. Morrison, Robert L. Hecker, Henry W. Buck, Wm. B. Cozad and Randolph P. Rogers, Jr., all of Kansas City, Mo., on the briefs, for appellant and cross-appellee, D. S. & O. Rural Elec. Co-op. Ass'n, Inc.

Robert E. Russell, of Topeka, and M. F. Cosgrove, Balfour S. Jeffrey and Clayton E. Kline, all of Topeka, on the briefs, for appellant and cross-appellee, Kansas Power & Light Co.

Leonard O. Thomas, of Kansas City, and Arthur J. Stanley, Arthur J. Stanley, Jr., J. E. Schroeder and Lee E. Weeks, all of Kansas City, on the briefs, for appellee and cross-appellant.

PARKER, Justice.

This was an action to recover damages for personal injuries sustained by plaintiff as the result of having come in contact with a high tension line used for the transmission of electricity. The defendants appeal from the trial court's action in overruling separate demurrers to the plaintiff's amended petition. Upon reaching this court each appeal was given a distinct number. However, that fact may be disregarded as the issues involved are common to all parties and the cases have since been consolidated. The cross-appeal is from orders sustaining identical motions to strike one paragraph from the amended petition.

The amended petition serves a dual purpose in that it discloses the factual picture existing at the time of the accident in question as well as the alleged omissions and defects on which the defendants rely as grounds for sustaining their single assignment of error to the effect the trial court erred in overruling their separate demurrers to the challenged pleading which, omitting its formal averments, its allegations relating to the extent of the injuries sustained, and its prayer, reads:

'1. That the State Highway Commission is a corporation organized under the laws of the State of Kansas, and is now and was at all times hereinafter set forth, the employer of Arnold F. Roehrman, who suffered injuries in the manner hereafter set forth; that at the time the said injuries were suffered the said Arnold F. Roehrman was engaged in the performance of his duties as an employee of the said State Highway Commission, and that the said State Highway Commission and Arnold F. Roehrman were at said time subject to the provisions of the Workmen's Compensation Laws of the State of Kansas; that the said Arnold F. Roehrman has been paid a total of Eight Hundred Four and 65/100 ($804.65) Dollars workmen's compensation by the State Highway Commission pursuant to the said statutes, and that this action is being maintained by the said State Highway Commission for its benefit and for the benefit of Arnold F. Roehrman, as their interests may appear.

'2. That Arnold F. Roehrman is now, and was at all the times hereinafter set forth, a resident of the City of Woodbine, in the State of Kansas, and as an employee of the State Highway Commission, on the 20th day of August, 1949, had the duty of maintaining, or supervising the maintenance of a portion of Highway No. 77 between Junction City, Kansas, and Woodbine, Kansas; that the defendant, The D. S. & O. Rural Electric Cooperative Association, Inc., is, and was on the 20th day of August, 1949, a cooperative association, organized according to the laws of the State of Kansas, engaged in the business of transmitting and selling electricity, and that the defendant, The Kansas Power and Light Company, is a corporation doing business in the State of Kansas, and is now and was on the 20th of August, 1949, engaged in the business of manufacturing, transmitting and selling electricity.

'3. That prior to the 20th day of August, 1949, the defendant, The D. S. & O. Rural Electric Cooperative Association, Inc., had erected, and then owned, electrical high tension transmission lines along a portion of Highway No. 77 between Woodbine, Kansas, and Junction City, Kansas, and that electrical energy was on said date transmitted along the wires on said line at a pressure of 7,200 volts, and that the electrical energy so transmitted along the said transmission line hereinaboved described, at the voltage hereinabove set forth, was and for many years prior thereto, had been purchased from The Kansas Power and Light Company, defendant herein; that plaintiff does not know whether said wires were located on highway right-of-way or private property but believes them to have been located on highway right-of-way.

'4. That on the 19th day of August, 1949, at about the hour of midnight or shortly thereafter, a pole was caused to break, which pole supported three wires, two of said wires being charged with a voltage of 7,200 volts each, the third being a ground wire, all of which were owned and installed by the defendant, The D. S. & O. Rural Electric Cooperative Association, Inc., along the said Highway No. 77; that the said broken pole was located at a point approximately three-fourths miles east of the Dickinson-Gray (sic) County Line, as it intersects the said highway; and that as a result of said break about two-thirds of the said pole, to which none of the wires were attached, fell to the ground, and the remaining portion of the said pole, including the crossarm to which the said two live wires and the ground wire were attached, was caused to be suspended over the said Highway No. 77, by reason of the fact that a guy wire, anchored to another pole on the opposite side of the highway and also attached to the said pole near the place where the crossarm was attached, caused the said crossarm and wires thereon to swing free and be suspended about six or seven feet above the edge of said highway.

'5. That the said pole was caused to break and fall as a result of the fact that an automobile was driven off of the paved portion of said highway, and into said pole, by a soldier then in the armed services of the United States, stationed at Fort Riley.

'6. That about four hours after the said pole was broken, and after the said crossarm was suspended over the highway as aforesaid, the plaintiff herein was informed of said fact, and the plaintiff immediately, in accordance with his duty as a maintenance man for the State Highway Commission, went to the place where the pole was broken. Upon arriving at the scene, the plaintiff noticed the automobile in which there was no driver or passenger which had been driven against the pole, and he searched for the persons, or the bodies of persons who had been riding in the said automobile for the purpose of rendering such assistance and aid as might be necessary. In the course of said search the plaintiff struck, just under his nose, one of the said wires which had, prior to the break of said pole, been attached to the said crossarm, and as a result thereof received a shock of electricity rendering the plaintiff herein unconscious, and causing the grievous, serious and permanent injuries hereinafter more specifically described.

'7. That the plaintiff's injuries were sustained at about the hour of 4:00 o'clock a. m., on the morning of August 20, 1949, and about four hours after the said pole had been broken in the manner hereinabove described, and that the wire from which the plaintiff received the electrical shock had been attached to the crossarm upon the aforesaid pole, prior to the time the said pole was broken, but that as an immediate result of the breaking of the said pole, this said wire either broke, or the said wire, as a result of the breaking of the said pole, became loose from the said crossarm and hung in an arc between the pole on either side of the said broken pole, with the lowest part of the arc being on the ground, and that the said wire carrying the said 7,200 volts laid upon the ground as a result of being broken or because it sagged to the ground, that the said broken pole was located at the farthest point of a curve in the said transmission line; that the transmission line with which the plaintiff came in contact was grounded, either because it was broken and the ends or parts of said wire between the plaintiff and the nearest pole between plaintiff and the source of energy were laying on wet ground, or because the said wire hung in an arc between the two poles on either side of the broken pole with about 100 feet at the base of the arc laying or swaying against wet ground. The plaintiff states that he made no inspection and does not know whether said wire was grounded because the wire touched the ground because it was broken or because the two poles on either side of the broken pole failed to suspend said wire in the air, and alleges that the said grounding was at or within a few feet of the place where plaintiff was injured.

'8. That transmission lines and poles carrying electricity frequently break; that in the exercise of the highest degree of...