Smith v. Southwest Missouri R. Co.

• Decision Date: 03 August 1933
• Docket Number: 31289
• Citation: 62 S.W.2d 761,333 Mo. 314
• Parties: Chester Smith, by his next friend, J. C. Parkins, Appellant, v. The Southwest Missouri Railroad Company and the Empire District Electric Company
• Court: Missouri Supreme Court

62 S.W.2d 761

333 Mo. 314

Chester Smith, by his next friend, J. C. Parkins, Appellant, v. The Southwest Missouri Railroad Company and the Empire District Electric Company

No. 31289

Supreme Court of Missouri

August 3, 1933

Appeal from Jasper Circuit Court; Hon. Grant Emerson Judge.

Reversed as to Railroad Company and affirmed as to Electric Company and remanded.

R. A Pearson, Wilbur Owen and Frank H. Lee for appellant.

(1) It is the duty of the power user to protect adequately -- and maintaining in an unprotected state an apparently unmoving and silent deadly agency in such close proximity to a passageway that a slight unbalance, a slight misstep, or the accidental raising of the hand or extending the arm means certain death, is about as gross negligence as could well be thought. Lightner v. Dunham, 195 S.W. 1057; Sprinkles v. Utility Co., 183 S.W. 1076; Von Trebra v. Gaslight Co., 209 Mo. 659; McCormick v Power Co., 3 P.2d 394; E. I. DuPont v. Briggs, 254 F. 964; McDonald v. Electric Co., 136 So. 169; Mayer v. Power Co., 215 N.W. 287; Clark v. Service Co., 255 P. 380; 45 C. J. 696; Jameson v. City, 17 S.W.2d 627. (2) The power company even went into the substation and joined its meter wiring into the railroad company's wiring, using same under the set-up and conditions therein to operate its meter in the station, and a power company delivering current to the railroad company is liable for such company's negligence, knowing of the crowded, unguarded and dangerous installation to which it is supplying a deadly current. So. Ry. Co. v. Hobbs, 35 F.2d 298; Aurentz v. Nierman, 131 N.E. 832; Ala. Power Co. v. Jones, 101 So. 898; Hawkins v. Corporation, 126 A. 522; Harn v. Gas Co., 82 So. 199; 20 C. J. 1065. (3) If the power company disclaims possession or control of the substation wiring, then as to it plaintiff could not have been a trespasser; if he was, the consumer company only could avail of such defense. The power company had knowledge of the uses of the narrow aisle crowded against deadly machines; it used it to make and maintain its own interior connections. 20 C. J. 350; Ratliff v. Power Co., 203 S.W. 232; Williams v. Electric Co., 202 S.W. 3; Grady v. Light Co., 253 S.W. 202. (4) Nor was plaintiff a trespasser as to the railroad company. Its servants were in sole charge of the substation. Regardless of his orders, his employment of the boy to enter the station under the recognized custom of receiving the public made him an invitee. As to the public the servant by virtue of being in sole charge was clothed with authority to allow the public to enter, and the company owed the duty of the highest degree of care to avoid injury to them. 39 C. J. 1288, sec. 148; Ratliff v. Mo. Power Co., 203 S.W. 232; Hamilton v. Bulger, 80 S.W. 557; Poteet v. Oil Co., 115 S.W. 289; Cook v. Navigation Co., 18 Am. St. Rep. 52; Houck v. Navigation Co., 116 Mo.App. 570; Whitehead v. Railroad, 99 Mo. 263; Buck v. St. Ry., 108 Mo. 185; Glaser v. Rothchild, 221 Mo. 180; 45 C. J. 822; Pittsburg Ry. Co. v. Shields, 21 Am. St. Rep. 840; Barmore v. Railroad Co., 38 So. 214, 70 L. R. A. 67; San Angelo Co. v. Anderson, 244 S.W. 571. (5) It was not contributory negligence to use a passageway installed for the very purpose, and which persons were authorized and expected to use. Such construction was an invitation and amounted to an assurance it was not so dangerous but that it could appropriately be used. Lightner v. Dunham, 195 S.W. 1055; Martin v. Co., 184 S.W. 133, 194 Mo.App. 106; Geisman v. Co., 173 Mo. 678; Smith v. Bridge Co., 30 S.W.2d 1083; Tibby v. Ry. Co., 82 Mo. 292; 39 C. J. 864.

A. E. Spencer, Jr., and A. E. Spencer for The Empire District Electric Company; McReynolds & Flanigan for The Southwest Missouri Railroad Company.

The railroad company was the operator of an extensive traction line, with electricity as the motive power. It owned the station in question, and made arrangements to purchase electrical energy from the Empire District Company. The latter company then ran its service wires to the station and attached them to an arm outside the building. The railroad company equipped its station with apparatus proper to take and use the current delivered to it by the Empire District Company at the arm aforesaid. In doing this last-mentioned work, the railroad company borrowed from the Empire District Company some electrical workers, who participated in the work of installing the new apparatus and wiring in the station. These men worked with the electrical workers of the railroad company, under the sole charge and direction of the latter company and were paid by it for their services. In this work the men were not acting for the Empire District Company nor under its control. The Empire District Company did attach to the apparatus in the north room of the station some wires which carried a small quantity of very low voltage current to its meters located in the south room, and had a man regularly read these meters twice a month. It kept the metering apparatus in functioning condition. All the evidence shows that these Empire District wires and meters did not have and could not have had anything to do with the accident. Aside from this metering apparatus, all the apparatus equipment and wires in the station were solely and exclusively owned, controlled and operated by the railroad company. The Empire District Company had no connection therewith or control thereof. The railroad company made all repairs thereon required from time to time. The evidence fails to show that the Empire District Company had any knowledge, or constructive notice, that the station was ever operated by any person except the man employed and maintained there by the railroad company for that purpose, nor that any visitors were ever permitted in the station, particularly in the north room. The station was operated from 1918 to 1926 without any trouble arising. No trouble would have occurred had the station been operated as just stated. The location of the entrance to the station, with doors connecting with the residence of the station operator indicated this manner of operation. The duties of the station operator required him to be in the north room (where the accident occurred) only for very short periods and not over once or twice a day. The machinery in that room was controlled from the south room. In 1926 the plaintiff secured from his grandfather, the station operator, permission to show a friend through the station, with the warning to be very careful. The young men were in the north room on this mission when the accident occurred. This respondent insists that under the facts and evidence, as summarized above, it cannot properly be held liable. Hoffmann v. Leavenworth Light, Heat & Power Co., 91 Kan. 450, 138 P. 632, 50 L. R. A. (N. S.) 574; Minneapolis General Electric Co. v. Cronon, 166 F. 651, 20 L. R. A. (N. S.) 816; Minnesota Electric Light & Power Co. v. Hoover, 102 Okla. 270, 229 P. 285; Martin v. Appalachian Electric Power Co., 153 S.E. 245; Fickeisen v. Wheeling Electrical Co., 67 W.Va. 335, 67 S.E. 788, 27 L. R. A. (N. S.) 893; Perry v. Ohio Valley Electric Ry. Co., 70 W.Va. 697, 74 S.E. 993; National Fire Ins. Co. v. Denver Consolidated Electric Co., 16 Colo.App. 86, 63 P. 949; Memphis Consolidated Gas & Electric Co. v. Speers, 113 Tenn. 83, 81 S.W. 595; Hill v. Pacific Gas & Electric Co., 22 Cal.App. 788, 136 P. 492; Scott v. Rome Ry. & Light Co., 22 Ga.App. 474, 96 S.E. 569; Princeton Light & Power Co. v. Ballard, 59 Ind.App. 345, 109 N.E. 405; Milton Weaving Co. v. Northumberland County Gas & Electric Co., 251 Pa. 79, 96 A. 135; Harter v. Colfax Electric Light & Power Co., 124 Iowa 500, 100 N.W. 508; Keefe v. Narragansett Electric Lighting Co., 21 R. I. 575, 43 A. 542; Haywood v. South Hill Mfg. Co., 142 Va. 761, 128 S.E. 362; Devost v. Twin State Gas & Electric Co., 79 N.H. 411, 109 A. 839; McFerran v. Merchants Heat & Light Co., 131 N.E. 544; Smith v. Board of Commissioners of Lexington, 176 N.C. 466, 97 S.E. 378.

OPINION

Atwood, J.

This is an action for damages by Chester Smith, by his next friend, J. C. Parkins, against The Southwest Missouri Railroad Company and The Empire District Electric Company, on account of personal injuries alleged to have been sustained by plaintiff through the negligence of defendants. At the close of plaintiff's evidence defendants interposed separate demurrers thereto which were sustained. Plaintiff excepted to this action of the trial court and took a nonsuit as to each defendant with leave to move to set the same aside. Judgment was thereupon entered for defendants and in due time plaintiff filed motion to set aside the orders of nonsuit, which motion was denied and plaintiff has appealed.

Plaintiff alleged and his proof showed that during the month of September, 1926, and long prior thereto, defendant railroad company operated an electric railway through Galena, Kansas, where it owned and operated a substation for receiving and transforming electric current furnished thereto by defendant electric company. On the 12th day of that month plaintiff, then seventeen years of age, while in a passageway installed and regularly used in this substation, suffered an electric shock from an adjacent high tension wire and was distressingly burned and maimed for life. The station was a room some twenty feet square. A middle east and west wall divided it, with an open doorway in the middle between the two compartments. Some large electric machines called converters were located in the south compartment on each side of the open way leading directly to the middle doorway. The station adjoined a dwelling house where appellant lived as a member of the family of his grandfather who was the operator in charge of the station. A door opened from the...