Smith v. St. Joseph Ry., Light, Heat & Power Co.

• Decision Date: 06 October 1925
• Docket Number: No. 24970.,No. 24969.,24969.,24970.
• Citation: 276 S.W. 607
• Parties: SMITH v. ST. JOSEPH RY., LIGHT, HEAT & POWER CO. et al.
• Court: Missouri Supreme Court

276 S.W. 607

SMITH v. ST. JOSEPH RY., LIGHT, HEAT & POWER CO. et al.

No. 24969.

No. 24970.

Supreme Court of Missouri, Division No. 2.

October 6, 1925.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by Lillian Smith against the St. Joseph Railway, Light, Heat & Power Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Brown, Douglas & Brown, of St. Joseph, for appellant St. Joseph Ry., Light, Heat & Power Co.

Orestes Mitchell, of St, Joseph, for appellant Western Dairy & Ice Cream Co.

Waldo P. Goff and Ryan & Zwick, all of St. Joseph, for appellant Bichler Mfg. Co.

Strop & Silverman and Chas. H. Mayer, all of St. Joseph, for respondent.

WHITE, S.

The plaintiff sued for damages on account of the death of her husband, William E. Smith. Smith was employed by the St. Joseph Railway, Light, Heat & Power Company, called in the record the railway company, and was killed, plaintiff says, while standing on a guy wire attached to one of the railway company's poles. The guy wire was owned by the Western Dairy & Ice Cream Company, called in the record the dairy company. It ran from said pole to the dairy company's smokestack, and had been installed by the Bichler Manufacturing Company, called in the record the Bichler Company. The guy wire was not insulated; plaintiff alleged and offered evidence to prove that, while standing on that guy wire, in the service of the railway company, the deceased came in contact with a high voltage wire, the property of the railway company, hanging near the pole; that the guy wire furnished a ground so as to carry the current through Smith's body.

The dairy company operated its plant in a building fronting east on Fifth street, St. Joseph. Along the south side of the building ran Charles street, and in the rear, on the west, was an alley. The engine room of the dairy company, a one-story brick building at the rear, extended to the alley. In the alley at the southwest corner of the engine room the railway company maintained a tall electric light pole with cross-arms towards the top on which were carried many electric wires. Extending up, on the south side of this pole, next to Charles street, were a number of spikes for use of linemen of the railway company in going up and down the pole. About 15 feet north of the tall pole was a shorter pole set in the alley. These poles were very close to the rear wall of the dairy company's engine room. They sustained a platform between them near the level of the top of the engine room. On this platform were three transformers, belonging to the railway-company, described by the witnesses as each about 3 feet in diameter, and, from the pictures in the record, they appear to have been about that height. About 3 feet above the transformers was a double crossbeam extending from pole to pole and bolted at each end to the pole. About 5½ or 6 feet above that crossbeam, and about 8 feet above the transformers, was another beam extending from pole to pole. Upon this upper crossbeam were two wooden fuse boxes over the north and middle transformer. There was no wooden fuse box over the south transformer, the one next the tall pole, although it appears from the evidence there had been one at some time. High voltage wires came through the fuse boxes and descended into the transformers below; the south fuse box being absent, one such wire came down from the primary direct.

Attached to the pole at the southwest corner of the engine room, and nearly on a level with the top of the transformers, about 2 or 3 feet below the double crossbeam, was a guy wire which from that point slanted upward in a northeasterly direction, to the smokestack of the dairy company in the engine room. How far the smokestack was from the pole is not stated. This wire was not insulated, and its maintenance in that position, it is charged by the plaintiff, was the proximate cause of her husband's death. Another guy wire attached to the same pole and at the same place, almost touching the dairy company's guy wire, extended eastward along Charles street to another pole maintained by the railway company at the corner of Fifth and Charles streets.

This latter guy wire was insulated by what is called a current breaker, or a strainer insulator, a contrivance made of porcelain, a nonconductor of electricity. From the picture it seems to be a sort of porcelain block through which the end of one wire is looped to extend in one direction and the end of another wire is looped to extend in the opposite direction, in such way that the wires do not come in contact at that point, so that the circuit is completely broken. There was evidence tending to show that this contrivance cost only 18 cents, and could be easily used on the dairy company's guy wire. Several such strainer insulators appear to have been upon sonic wires, presumably guy wires, attached higher up to the tall pole. Employees of the railway company testified that they were always used by that company on guy wires, so as to prevent a grounding and conducting of the current from any high voltage wire they might chance to touch or make connection with.

July 31, 1922, the north fuse box, farthest from the tall pole, took fire. The fire department and the trouble man of the railway company came, and for a time were unable to extinguish it. Mr. F. R. Murphy, assistant superintendent of the defendant railway company, in charge of the men who were vainly attempting to put the fire out, pulled out the middle fuse on the top cross-arm, thus deadening the middle primary wire. He then cut the primary wire entering the south transformer nearest the tall pole. This appeared to be necessary in order that they might put out the fire. All electric connection being then broken, the fire was readily extinguished. After the fire was out, Mr. Murphy proceeded to reconnect the north wire. While Murphy was thus engaged, William Smith arrived at the scene for the purpose of assisting in repairing the damage done. The south primary wire had been cut as stated, so that the end hung down to about 4 feet above the guy wire, and the end was 2 or 3 feet above the south transformer and apparently within a few inches of the tall pole. It was insulated, but the cut end was exposed. Smith climbed the pole and got on the roof of the engine room. He then stepped upon the dairy company's guy wire, put his knee upon the double crossbeam, and was in the act of raising himself up when the hanging primary wire, containing 2,300 volts, struck him on the shoulder. He pitched head foremost upon the tap of the engine room, and died immediately.

Experts and others on the same day attempted to ascertain how he received the shock. Plaintiff introduced evidence to show that, excepting the dairy company's guy wire, there was no ground which could have made the circuit complete when the hanging wire struck him. The other guy wire attached to the same place upon which he probably would have to stand at the same time was insulated with strain insulators. A ground wire ran down the tall pole, connected towards the top with the lightning arresters. It had been cut loose at the top. It could not have carried the current because it was insulated. Evidence for the plaintiff further tended to show that the transformers were not "hot" (that is, not charged with electricity), so the men, working at the time there, who had their hands on them, testified. No other wire or object which could conduct electricity at that point furnished a ground by which the current from the primary wire could have been carried through Smith's body except the dairy company's guy wire. Further it was shown that the guy wire was attached to the dairy company's smokestack which was planted in such way as to afford a perfect ground, so that the circuit was complete when Smith had his foot on the guy wire and the hanging wire struck him. The evidence of physicians who examined him showed that the current probably entered his body at the right elbow and came out in the toe of the right foot. His shoe and sock were exhibited to indicate that. While leather is a nonconductor, Smith's shoe sole contained tacks which could conduct the current to the wire on which he stood.

The defendants introduced evidence tending to show that the transformers were charged at the time; that Smith was not standing on the guy wire when the current struck him but on the south transformer.

At the close of the plaintiff's evidence and again at the close of the all evidence, each of the defendants presented a demurrer, all of which were overruled.

The plaintiff seeks to recover against the dairy company for maintaining an uninsulated guy wire which formed a perfect ground, when it knew, or had reason to know, that employees of the railway company were often obliged to go up and down the pole for the purpose of making repairs, and were likely, at any time while on or near the guy wire, to come into contact with the live wires. Plaintiff seeks to recover against the Bichler Company because that company erected the smokestack and placed the uninsulated guy wire for the dairy company upon the pole, when it knew the pole would be so used, being well acquainted with the dangers of electricity, and knowing the effect of installing a guy wire without insulation in that position. The plaintiff seeks to hold the railway company for permitting the dairy company to maintain the guy wire in the condition mentioned. There was evidence tending to show that the dairy company's guy wire was placed on the pole without the knowledge or consent of the railway company.

On this evidence the jury returned a verdict for the plaintiff against all three of the defendants for $10,000. All ...