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

• Decision Date: 07 May 1955
• Docket Number: No. 39646,39646
• Citation: 283 P.2d 411,178 Kan. 52
• Parties: Arnold F. ROEHRMAN, Appellee, v. The D. S. & O. RURAL ELECTRIC COOPERATIVE ASSOCIATION, Inc., Appellant.
• Court: Kansas Supreme Court

Page 411

283 P.2d 411

178 Kan. 52

Arnold F. ROEHRMAN, Appellee, v. The D. S. & O. RURAL ELECTRIC COOPERATIVE ASSOCIATION, Inc. Appellant.

No. 39646.

Supreme Court of Kansas.

May 7, 1955.

Rehearing Denied June 17, 1955.

Syllabus by the Court

In an action brought by the employer of an injured workman against a negligent third party on its own behalf and on behalf of the workman as their interests may appear, pursuant to G.S.1949, 44-504, the record is examined and it is held the trial court did not err (a) in overruling defendant's demurrer to plaintiff's evidence and (b) in granting plaintiff a new trial.

Henry W. Buck, Kansas City, Mo., and N. E. Snyder, Kansas City, Karl F. Schmidt, Kansas City, Mo., on the brief, for appellant.

L. O. Thomas, Kansas City, Arthur J. Stanley, Arthur J. Stanley, Jr., J. E., Schroeder, and L. E. Weeks, Kansas City, on the brief, for appellee.

SMITH, Justice.

This was an action brought pursuant to G.S.1949, 44-504 by the state highway commission for its own benefit and for the benefit of Roehrman, one of its employees, to recover for damages alleged to have been sustained by the employee when he came into contact with a wire of defendant's carrying electric current, and for benefits paid the employee, pursuant to the workmen's compensation act. At the conclusion of the trial, the trial court granted plaintiff a new trial. The defendant, D. S. & O. Rural Electric Cooperative Association, Inc., has appealed.

The petition alleged first that Roehrman was an employee of the commission at the time of his injury and they were both subject to the workmen's compensation act and the action was being maintained by the commission for its benefit and that of Roehrman, as their interest might appear; that on August 20, 1949, Roehrman had the duty of supervising the maintenance of highway 77 between Junction City and Woodbine and defendant, D. S. & O. Rural Electric Cooperative Association, Inc., was engaged in transmitting and selling electricity and the defendant, Kansas Power and Light Company, was engaged in that business; that prior to August 20, 1949, D. S. & O. had owned and operated high tension lines along a portion of the above highway and on that date electric energy was transmitted along that line at a voltage of 7,200 volts and this electrical energy was purchased from the Kansas Power and Light Company; that on August 19, 1949, at about midnight a pole was caused to break which supported three wires, two of them being charged with 7,200 volts, all of which were owned and installed by D. S. & O. along highway 77; and as a result two-thirds of the pole, to which none of the wires were attached, fell to the ground and the remaining portion, including the cross arm, to which the live wires and the ground wire were attached, was suspended over highway 77; that the pole was broken when an automobile was driven off the highway against it; that about four hours after the pole was broken plaintiff was informed and in accordance with his duty went to the place; upon arriving he noticed an automobile with no driver, which had been driven against the pole, and he searched for persons or bodies for the purpose of rendering aid or assistance; in the course of such search plaintiff struck, just under his nose, one of the live wires and as a result received a shock causing serious and permanent injuries; that his injuries were sustained about 4 a. m. on August 20, 1949, about four hours after the pole was broken, and the wire he struck, as an immediate result of the breaking of the pole, was either broken or became loose and hung in an arc between the poles on either side of the broken pole with the lowest part of the arc being on the ground and the wire carrying the 7,200 volts; that plaintiff did not know whether the wire was grounded because it touched the ground, because it was broken or because the poles on either side of the broken pole failed to suspend it in the air; and that the grounding was within a few feet of the place where plaintiff was injured.

The petition further alleged that power lines frequently break and for the purpose of protecting persons and property the owners of them provide fuses or reclosers for the purose of shutting off the flow of electricity through them in the event there should be a fault in the lines, and if defendant had equipped its lines with fuses or reclosers and had properly placed them the breaking of the line or the contact with the ground would have caused the electricity to have been shut off when the pole broke and the line at the time the plaintiff received a charge of electricity would not have been carrying an electric charge and the plaintiff would not have been injured. It further alleged the injuries suffered by plaintiff were caused by the concurrent negligence of defendants in that D. S. & O. did not maintain proper fuses or reclosers, which was known or in the exercise of ordinary care should have been known by defendant, K. P. & L. Co.; in that defendant D. S. & O. did not inspect or maintain such reclosers or fuses as had been installed in a careful and prudent manner, which was known or should have been known to the Kansas Power and Light Company; that the K. P. & L. Co. did not own or properly maintain at its substation, where power was furnished to D. S. & O., any fuses or reclosers, which would shut off the flow of electricity to D. S. & O., and in the exercise of the highest degree of care K. P. & L. Co., was obligated to install and properly maintain such fuses or reclosers; that K. P. & L. Co. constituted D. S. & O. its agent for the purpose of maintaining reclosers and fuses, and was responsible for the failure of D. S. & O. to carefully erect and maintain an automatic reclosing circuit breaker or its equivalent at its substation; that the pole which broke was not such a pole as should have been installed or used in connection with a transmission line carrying such a voltage of electricity because it was brittle and likely to break, which should have been known to defendants; and that defendants in the exercise of the highest degree of care should have known of the existence of the fault and the break of the pole and the short in the line within a few seconds after the pole was broken or after the line was energized and should, in the exercise of due care, have either repaired the break or shut off the electricity long before plaintiff was injured.

The petition then described plaintiff's injuries in the amount of $25,000. Judgment was prayed in that amount.

After motions to require plaintiff to make the petition more definite and certain were overruled, defendants demurred to it on the ground it did not state facts sufficient to constitute a cause of action. This demurrer was overruled. On appeal we affirmed. See Roehrman v. D. S. & O. Rural Electric Cooperative Ass'n, 174 Kan. 498, 256 P.2d 872.

When the case was returned to the district court defendant, D. S. & O., answered. In this answer it first denied the allegations of the petition generally; then it alleged that Roehrman did not receive any compensation from the highway commission pursuant to the workmen's compensation statutes; that plaintiff's injuries did not arise out of and in the course of his employment with the state highway commission; that the injuries of plaintiff were not injuries for which compensation was payable; that the highway commission was not a proper party to maintain the action for its benefit and for the benefit of plaintiff; that there had been no determination under the workmen's compensation act that Roehrman was injured by accident arising out of and in the course of his employment under the workmen's compensation act; that neither the highway commission nor plaintiff notified the compensation commission of plaintiff's injuries; that if plaintiff sustained any injuries they were caused by his own negligence because he knew that a pole carrying electric transmission wires had been broken but he failed to make any inspection to ascertain their location; he failed to remain in a place of safety on the highway but on the contrary walked off the highway to a field adjacent to the highway, where his accident occurred in the dark when he could not see what was in his path and thus came into contact with an electric transmission wire; that he failed to use his faculties of hearing and sight to avoid a place of danger; that he failed to heed a warning; that confronted with the darkness he should not have proceeded further without finding out that he could safely do so; he unnecessarily subjected himself to danger he should have anticipated and was negligent in doing so; that if plaintiff was acting in the scope of his employment he assumed any risk of injury from the accident and was barred from recovering damages; and that any injuries plaintiff sustained were the result of an unavoidable accident. Defendant, D. S. & O., admitted its own existence, that a pole broke about midnight and plaintiff came into contact with one of the wires. Defendant prayed judgment for costs. The reply was a general denial.

At the close of plaintiff's evidence defendant, D. S. & O., demurred to it on the ground it pleaded in its answer relative to the workmen's compensation act; that plaintiff's evidence demonstrated that plaintiff was guilty of contributory negligence; that there was no evidence of any negligence of that defendant; that no action by it was the proximate cause of any injuries the plaintiff sustained. This demurrer was overruled; the demurrer of the K. P. & L. Co. was sustained; D. S. & O. also demurred to the evidence of plaintiff because the trial court had no jurisdiction of defendant or the subject matter since no cause had been proven against the K. P. & L. Co.

The jury returned a verdict for plaintiff in the amount of $5,495. Special questions were answered as follows:

'1.--Did any of defendant's employees leave a recloser in...