Sanders v. City of Carthage

• Decision Date: 13 June 1932
• Docket Number: No. 29752.,29752.
• Parties: J.J. SANDERS and EMMA SANDERS v. CITY OF CARTHAGE, a Municipal Corporation, Appellant.
• Court: Missouri Supreme Court

51 S.W.2d 529

J.J. SANDERS and EMMA SANDERS v. CITY OF CARTHAGE, a Municipal Corporation, Appellant.

No. 29752.

Supreme Court of Missouri, Division 1.

June 13, 1932.^*

Appeal from Jasper Circuit Court. — Hon. Grant Emerson, Judge.

REVERSED AND REMANDED.

Elza Johnson and Frank R. Birkhead for appellant.

The opinion and decision of the Springfield Court of Appeals in approving Instruction 7 is in direct opposition to and in conflict with controlling decisions of the Supreme Court and in conflict with the decisions of the St. Louis and Kansas City Court of Appeals. State ex rel. Macon v. Trimble, 12 S.W. (2d) 727; Kuhlman v. Water, Light & Transit Co., 307 Mo. 607; Morrow v. Mo. Gas, etc., Co., 315 Mo. 367; State ex rel. Utility Co. v. Cox, 298 Mo. 427; May v. Hannibal, 186 Mo. App. 602; Politowitz v. Telephone Co., 115 Mo. App. 57; Lowenstein v. Railroad, 110 Mo. App. 686; Pogue v. Grunden-Martin Mfg. Co., 273 S.W. 782; Bonnarens v. Railroad Co., 309 Mo. 65; McGrath v. Transit Co., 197 Mo. 97; Scott v. Davis, 216 Mo. App. 53; Carpenter v. Burmeister, 217 Mo. App. 104; Thompson v. Ry. Co., 274 S.W. (Mo. App.) 531; Bogrees v. Railroad Co., 266 S.W. 333; Norwood v. Ry. Co., 277 S.W. 936; Orcutt v. Century Bldg. Co., 201 Mo. 424; Roscoe v. Met. Ry. Co., 202 Mo. 576; Kennedy v. Ry. Co., 123 Mo. App. 297; Kaw Feed & Fuel Co. v. Ry. Co., 129 Mo. App. 498; Kirkpatrick v. Met. Ry. Co., 211 Mo. 68.

J.D. Harris for respondents.

(1) Every witness testifying, who saw the occurrence, implies that the boy was doing only the ordinary and usual thing in taking hold of the wire. Certainly he cannot be charged with contributory negligence as a matter of law, and the plaintiffs clearly made out their case, and are entitled to recover. Kidd v. K.C. Light & Power Co., 239 S.W. 584; Gannon v. Gas Co., 145 Mo. 512; Grady v. La. Light, Power & Traction Co., 253 S.W. 205; Geismann v. Mo. Edison Electric Co., 173 Mo. 654; Adams v. Moberly Light & Power Co., 237 S.W. 162. (2) It is the duty of an electric light company, which has strung its overhead wires along public streets of a city, or along the public highway of the country, for its own private gain, to see that such streets and highways are at all times maintained in the same general condition as to the safety of pedestrians and to others lawfully using the same from danger of electricity, as they were before such wires were put there. Gannon v. Gas Co., 145 Mo. 502; Grady v. Light, Power & Traction Co., 253 S.W. 205. The instruction challenged properly declares the law in this class of case and has been recognized as an approved instruction time and again in this State. Price v. Met. Street Ry. Co., 220 Mo. 444; Loftus v. Met. Street Ry. Co., 220 Mo. 477.

HYDE, C.

This cause has been certified here, under Section 6, Amendment of 1884, Article VI, of the Constitution of Missouri, by the Springfield Court of Appeals. It is a suit to recover damages for the death of plaintiffs' minor son, who was killed by contact with an electric wire belonging to defendant, the city of Carthage. The Court of Appeals first reversed and remanded the case, but, upon rehearing, affirmed it and certified it here as in conflict with former decisions of the other Courts of Appeals.

The defendant owned and operated a municipal electric light plant. One of its lines of poles and wires ran east, along 13th Street, to the city limits of the city of Carthage. From this point a road, known as 13th Street Road, continued east. About two years prior to April 9, 1925, defendant constructed a continuation of its line, along the north side of 13th Street Road about one-half mile east of the city limits, for the purpose of supplying electric current to houses on that road. This line was constructed with new poles, wires, and other equipment. The farm home of W.K. Alexander was one of these. It was located on the north side of 13th Street Road.

Plaintiff, J.J. Sanders, had a contract with Alexander to clear ten acres of his land, and plaintiffs' son, Ezra Sanders, seventeen years old, was doing most of the work. On the morning of April 9th, Ezra Sanders came, in a Ford car, to continue this work, from plaintiffs' home seven miles farther east. He turned into the Alexander driveway and got out of his car to open the gate. Upon approaching the gate he was seen to raise his hand above his head and take hold of a wire. He immediately fell back and was found, by persons who rushed to the scene, electrocuted. An electric wire, with fire coming from it, was in his right hand and across his breast. Defendant's officials were sent for and the wire was cut down, by them, from the pole. The wire was the north one of defendant's two primary wires on this line, which carried a current of 2200 volts. It was found that this wire had apparently burned apart about nine feet from the pole to the east of the driveway. The distance between the poles was about 100 feet. The longer piece of the wire remained attached to the pole west of the driveway but the east end of it dropped down onto and hung over the limb of a walnut tree east of the gate. This left the wire, between the pole and the tree looped down over the driveway on the north edge of the public road, within reach of a person on the ground.

The evening before, about seven o'clock, there had been an electrical storm, and the persons living in the neighborhood noticed a very loud crash, as though lightning had struck nearby. This caused the electric lights to go out of commission at the Alexander house, and at all the houses east of it. The telephones in these houses were also put out of order. The telephone wire was on shorter poles, under the light wires, and had been burned in two at about the same place as the electric wire. At the Alexander house, and the next house west, the lights were turned off when the storm started. These people did not discover that night that the lightning had interrupted their light service. Others, farther east, noticed that their lights went out immediately after the crash, but did not attempt to telephone the light plant and did not discover that their telephone was out of order until the next morning, when a man engaged in road work tried to telephone to town. It was about seven o'clock, on the morning after the storm, that Ezra Sanders came in contact with the wire.

It was shown that there were devices manufactured which would show when a wire on any circuit became grounded, but that defendant's plant was not equipped with them. There was evidence on the part of defendant that such devices were impractical in plants with such long circuits and with such a complicated system as defendant operated. It was also shown that it would be possible to shut off one of the several circuits without interfering with the rest of the system. No electrician was on duty at defendant's plant after the storm. The man in charge was an engineer who said his duties were to keep the engines and generators going and keep up the peak load. Asked what he did if the instruments showed the load pulled down from the peak load, he said: "I raise her up, turn on more juice." He said there was no interference that night. The two pieces of the wire, which were cut down from the poles, were introduced at the trial. It was shown that the wire was broken by being burned or melted and had the appearance of a break made by lightning. The insulation was known as triple braid, composed of three layers of fabric, treated with asphalt. The insulation was in good condition except that it was charred at the place where Ezra Sanders had taken hold of it. All the witnesses who saw the wire on the morning Ezra Sanders was killed said that the insulation appeared to be in good condition except that it was burned off where he had hold of the wire. Defendant's evidence was that if a person, standing on wet ground, touched the wire, the current would leak through and melt the insulation, break down its resistance, and burn through it. The last inspection of the line by defendant had been about the middle of March. Nothing was shown to be wrong with the line before the storm.

Plaintiffs' petition alleged negligence as follows:

("That the defendant had carelessly and negligently suffered and permitted one of its electric wires strung as aforesaid upon the line of poles on said highway at a place in front of said Alexander property, to become broken and detached from said poles, and then and there to be hanging down in said public highway heavily charged with electricity), (and had carelessly and negligently failed to keep said wire properly insulated and suffered and permitted the insulation upon said wire which had fallen as aforesaid, to become worn, defective and destroyed, so as to permit a deadly current of electricity to escape therefrom)."

Defendant's answer was a general denial. A plea that the breaking of the wire was caused by an act of God, which the defendant neither knew nor had sufficient time to discover, and a plea of contributory negligence. Plaintiffs' reply was a general denial. Plaintiffs had judgment for $3,000, from which defendant has appealed.

[1, 2] The assignments of error, urged by defendant, are: Giving plaintiffs' Instructions 5 and 7; refusing defendant's Instruction A. Defendant assigned, also, refusal of its several demurrers (General and Special) to the evidence, but has, apparently, abandoned these assignments in its points and authorities. However, its demurrers asked at the close of the case were properly overruled, and the others were waived by offering evidence.

Except as to the issue of the value of services, plaintiffs only examined two witnesses Mr. Alexander and his neighbor, Mr. Tarrant. They were not eyewitnesses. Plaintiffs showed by them only the finding of the dead boy in the driveway, with the burning wire in his hand. The severe lightning flash of the storm the evening before, indicating how long the light and telephone...