Sprinkles v. Missouri Public Utilities Co.

• Citation: 183 S.W. 1072
• Decision Date: 15 February 1916
• Docket Number: No. 1464.,1464.
• Parties: SPRINKLES v. MISSOURI PUBLIC UTILITIES CO.
• Court: Court of Appeal of Missouri (US)

183 S.W. 1072

SPRINKLES v. MISSOURI PUBLIC UTILITIES CO.

No. 1464.

Springfield Court of Appeals. Missouri.

February 15, 1916.

Rehearing Denied March 28, 1916.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by Rubie Sprinkles against the Missouri Public Utilities Company, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.

I. R. Kelso, of St. Louis, and Wammack & Welborn, of Bloomfield, for appellant. Mozley & Woody, of Bloomfield, for respondent.

STURGIS, J.

This is an action to recover damages for the death of plaintiff's husband, caused, as stated in the petition, by the carelessness and negligence of defendant in permitting one of its wires, heavily charged with electricity, to become broken and down in one of the streets of the city of Dexter, and with which her husband came in contact and was killed.

The testimony shows that on and prior to the 27th day of November, 1913, the defendant was the owner of and engaged in operating an electric light and power system in the city of Dexter, in Stoddard county, Mo.; that in the prosecution of its business in furnishing lights for the streets and in furnishing light and power to private persons and firms in said city it was maintaining wires strung on poles along the streets of said city; that it so maintained wires on poles on Kitchen avenue, one of the public streets of said city; that said avenue runs north and south, the southern terminus being the Dexter and Essex public road; that at the corner of this street and road, on the north side of said road and west side of said street, was a pole on which was attached an electric street light. This was an incandescent light attached to the pole by means of a "gooseneck" about three feet long extending at right angles from the pole. The light was suspended under the hood at the end of the "gooseneck." The "gooseneck" was attached to the south side of the pole and about four or five feet from the top thereof. The wires furnishing the current to this light passed from about the top of the pole down to the light, forming, with the pole and "gooseneck," a right angle triangle. There were also poles on the north side of this east and west road on which were strung heavy-power wires leading from the power house to a cotton gin on the east side of Kitchen avenue. The light wires, when in operation, carried 110 volts of electricity, but were not supposed to run in the daytime. The heavy-power wires carried 2,300 volts of electricity, and passed just over the light wires leading from the top of the pole to the light attached to said pole. After the accident one of the power wires was found to have sagged down, and was lying on the light wires leading down to the light. The insulation was burned from both wires at the point of contact. The evidence fully justified a finding that the broken light wire, the broken end of which rested on the ground was charged with the strong current of electricity by reason of its contact with the power line running to the cotton gin. About fifty feet north of this pole at the corner of the street and on the west side of Kitchen avenue, a guy wire was stretched across the street under the light wire and attached to a telephone pole on the east side of Kitchen avenue. The evidence shows that the light wires had also sagged down coming in contact with this guy wire. One of the light wires in contact with the power wire at the pole had burned or broken in two just where it passed over the guy wire and had fallen into the street below.

The testimony shows that about 2 o'clock in the afternoon of November 27, 1913, the deceased, who was the city marshal, came to this light pole at the intersection of the avenue with the public road, climbed up the pole far enough to look at the light globe, and then descended to the ground; that just as he reached the ground he discovered that the wire was broken and down. He walked north along the traveled pathway used as a sidewalk on the west side of the avenue to the end of the wire and picked it up. As soon as he got hold of the wire his hands flew up to his breast, he whirled around, fell on his face, and died. A witness who was present ran and tried to get the wire loose with a wooden fork, but was unable to do so.

The trial resulted in a verdict for plaintiff in the sum of $6,500, from which the defendant has duly appealed to this court.

The defendant's first contention is that its demurrer to the evidence should have been sustained, but we are of the opinion that the facts which the evidence shows are sufficient to support a finding of defendant's negligence. There is no doubt but that the strong current of electricity passing through the broken electric light wire, the coming in contact with which caused the deceased's death, came from its contact with the power line wire running from the defendant's power plant to the cotton gin. These wires were found to be in contact just after the deceased's injury, with the insulation burned or worn off of each wire at the point of contact. One witness said that these wires were strung too close together. The heavily charged power wire passed above and across the light wire at the pole supporting the light wire and street light which it supplied with electricity, but was not fastened to such post. This method of construction caused or permitted the heavy power wire to sag down and rest on the light wire. These different lines had been constructed a considerable time before this injury, and, while it is not shown just how long the wires had been in such contact, the reasonable inference from the physical facts is that the conditions which resulted in the two wires coming in contact had existed for a considerable period. In fact, there is nothing to explain why these wires were in contact, except that such was the result of the method in which the two lines were constructed and maintained. It is also the fair, if not inevitable, inference that the primary cause of the light wire being broken and on the ground was its contact with the power wire causing the light wire to become, as far as the current was concerned, a mere extension of the heavily charged power wire. The light wire then passed above and across the guy wire, and by sagging down had rested on and come in contact with such guy wire. It was at this point that the light wire was severed and the fallen ends, according to the evidence, plainly indicated that it had burned or melted in two at the point of and by reason of its contact with the guy wire. This was doubtless due to the strong current passing over the light wire and communicated to it from the power wire. It was likewise negligent in defendant to so construct and maintain the light wire as to allow it to come in contact with the guy wire, though it may be that, except from the light wire's contact with the power wire the light wire would not have been burned or melted in two because of its contact with the guy wire, and would not have been sufficiently charged with electricity to have injured deceased after falling to the ground. It does not matter whether this injury was the proximate result of the contact of the power wire with the light wire or the light wire with the guy wire, or both combined, since each was the result of defendant's negligence, and the conditions which brought about each, if not due to the improper construction of the lines of wires, may reasonably, from the facts in evidence, be inferred to have existed a sufficient length of time to charge defendant with notice. As bearing on the question of defendant's actual or constructive notice of the conditions which caused this injury, it was shown by plaintiff that the light wire was down on the ground some six hours before the injury, and on behalf of defendant that the street light was burning earlier that morning, and therefore the wire supplying it could not have been broken until some time after daylight. But, if the conditions which caused the light wire to break and fall and to be charged with a dangerous current existed previous to both these periods of time, the exact length of time the wire was down was not decisive. Had the injury resulted from the wire coming in contact with the deceased at the time it melted and fell, defendant's negligence would still have been an issuable fact.

We need not, therefore, under the evidence here, place the defendant's liability on the prima facie case which it has been held is established by the mere showing that the injury resulted from the injured party, without fault or negligence on his part, coming in contact with a heavily charged electric wire. Von Trebra v. Gaslight Co., 209 Mo. 649, 659, 108 S. W. 559; Geismann v. Electric Co., 173 Mo. 654, 678, 73 S. W. 654; Trout v. Gaslight Co., 151 Mo. App. 207, 220, 132 S. W. 58. This doctrine is based on the high degree of care required of those operating electric light and power wires, and is somewhat analogous to that of passenger and carrier.

It is next insisted that the deceased is shown to have been guilty of contributory negligence barring any recovery as a matter of law. The first suggestion in support of this is that the deceased was a mere meddler in interfering with defendant's wires. Had the deceased been injured by taking hold of the wires when climbing the pole, there would be some force to this argument; as it is not shown that it was any part of his duty to inspect defendant's lights and wires, and, if anything was known to be wrong, prudence would dictate that he report to defendant instead of trying himself to remedy any such defect. The injury, however, happened after he descended from the pole and saw the broken wire on the ground. It is disputed as to whether the fallen wire was in the pathway used as a sidewalk, but the evidence sustains a finding that, if not in such pathway it was very near — dangerously near — the same. The deceased was city marshal,...