Sullivan v. Davidson

Decision Date06 December 1958
Docket NumberNo. 41037,41037
Citation183 Kan. 713,332 P.2d 507
PartiesJohn L. SULLIVAN, Administrator of the Estate of Loraine Eugene Sullivan, Deceased, Appellant, v. David DAVIDSON, Appellee.
CourtKansas Supreme Court

R. L. Letton, Pittsburg, argued the cause, and R. L. White, Pittsburg, was with him on the briefs, for appellant.

C. R. Stauffacher, Columbus, argued the cause and was on the briefs, for appellee.

PRICE, Justice.

This was an action for wrongful death by electrocution.

The trial court held that plaintiff's evidence established that decedent had assumed the risk of the employment and was guilty of contributory negligence as a matter of law, and sustained defendant's demurrer thereto.

Plaintiff has appealed, and the sole question involved is the correctness of that ruling.

The decedent, Loraine Eugene Sullivan (hereafter referred to as Gene), was employed as a general farm hand by defendant Davidson, a farmer of Cherokee county. On July 29, 1955, while loading some aluminum pipes on a wagon in connection with defendant's irrigation operations, Gene was electrocuted when one of the pipes being handled by him came in contact with an overhead electric power line. This action was brought by his father as administrator of his estate.

The petition, after narrating the factual background of the matter, all of which will be referred to in our discussion of plaintiff's evidence, alleged that Gene's death was the direct and proximate result of the negligence and carelessness of defendant in that defendant negligently and carelessly:

'(a) Failed and neglected to furnish his employee with a reasonably safe place in which to perform his duties in his employment by defendant;

'(b) Failed and neglected to advise and warn his employee, Loraine Eugene Sullivan, of the danger of placing and handling said aluminum pipe in an upright position beneath or near to said high-voltage electric transmission wires, notwithstanding defendant's superior knowledge of such danger;

'(c) Drove, operated and stopped said tractor and farm wagon in a loading position directly beneath said high-voltage electric transmission wires, notwithstanding defendant's knowledge of the danger of so doing to the employee of the defendant, Loraine Eugene Sullivan;

'(d) Directed his deceased employee to reverse ends of the lengths of pipe by placing and handling the same in an upright position;

'(e) Failed to remain at the place of work of said employee and direct the work being performed, notwithstanding the hazard and danger involved in the performance of said work, without direction and supervision;

'(f) Failed to remain at the place of work of said employee and assist in the work then and there being performed, notwithstanding the hazard and danger in the performance of said work by the deceased employee, Loraine Eugene Sullivan, without assistance.'

Defendant's demurrer to the petition being overruled, an answer was filed which, among other things, denied allegations of defendant's negligence and alleged that Gene had assumed the risk of his employment, and that his death was proximately caused and contributed to by his own negligence and disregard for his own safety, thus barring recovery.

Plaintiff's reply denied allegations of the answer relating to assumption of risk and contributory negligence, and upon the issues thus joined the parties proceeded to trial before a jury.

Due to the nature of the case and the question presented, we summarize the evidence in detail.

The manager of SEKan Electric Cooperative Association testified the company maintained high-voltage electric transmission lines in Cherokee county, and at the scene of Gene's death, which was about six miles northeast of Columbus. The high-voltage line in question was completed in May 1955, to serve an irrigation well on defendant's farm. The first pole west of the driveway into the field in question was a thirty-five-foot pole, and the first pole east of the driveway was a thirty-foot pole, with a span between them of 300 feet. In that length of span there would be a sag in the wires. The 'hot' wires carried 7,200 volts from the phase wire to the ground. The overchange clearance at the point in the driveway from the ground to the neutral wire was approximately nineteen feet, and the clearance in the driveway from the ground to the 'hot' wires was twenty-one feet eight inches. Roads in the rural district required eighteen-foot clearance, and there were no obstructions of the transmission line at the point where the roadway went into the field.

The lineman for the electric ompany went to the scene in question shortly after Gene's death, and he observed a length of aluminum pipe approximately thirty feet long and three inches in diameter upon which there were markings 'significant' to an electrician. These markings were a black smudge indicating a short circuit to the ground. A small arc indicated to him that the electricity flowed through the pipe from that point to the ground. When high voltage goes to the ground it causes an arc. The smudge was close to the end of the pipe. In his judgment, the arc from the hot wire to the pipe was not over a quarter of an inch and the pipe had to come within that distance, or even closer, in order to make an arc. If the pipe had touched the hot wire the effect would be practically the same. There was corn growing in the field but none was under the electric line.

The coroner and a physician testified that the cause of death was electrocution.

Gene's mother testified that he was twenty-eight years of age at the time of his death; that he was one of ten children; was about six feet three inches tall; weighed about 160 pounds; was in good health; that he had completed eighth-grade education; was of good intelligence; that he had been engaged in farm work practically all of his life except for fifteen months when he was in the military service in World War II from which he was discharged as a sergeant, and that he had worked for defendant Davidson about eight years.

Gene's father, the plaintiff, testified that Gene had gone through the eighth grade in school; had helped him on the farm for a few years; went into military service in 1945, and upon his return became employed by defendant in general farm work; and that he had never married and had not worked at any trade or occupation other than as a farm laborer except for a period of a week or two when he worked on a pipeline in Oklahoma. He described Gene as weighing about 180 pounds and as being strong and robust. He went to the scene in question and noticed the section of aluminum pipe lying a short distance west of the entrance into the field and not over four feet from the wagon, which was a four-wheeled trailer or farm wagon with a flat bed, and which was parked about directly under the electric transmission lines. He later discussed the tragedy with defendant and quoted defendant as saying that he and Gene were taking up the pipe from the irrigation line and were taking it up to the wagon to be loaded; that they were placing it on the wagon so a certain end would be to the front so that when they assembled the pipe again it would be in the right place; that if it was not right when they carried it to the wagon they would 'upheld' it and turn it over and place it on the wagon with the correct end forward. He further quoted defendant as saying that he (defendant) had driven the wagon to the location in question and had parked it under the transmission lines; that while he and Gene were working with the pipe he (defendant) left for a few moments in order to help a neighbor who was having car trouble, and that when he returned to the scene Gene was lying on the ground dead. This witness further testified that Gene had driven tractors, including the one owned by defendant which pulled the wagon in question, and that when he went to the scene of death he noticed corn growing in the field but that in the entrance from the road into the field it was clear and there was nothing to obstruct his view in seeing the electric wires overhead.

Defendant Davidson was called as a witness on behalf of plaintiff and testified as to matters in issue. At the conclusion thereof, and plaintiff having rested his case, defendant demurred. The court indicated it felt the demurrer should be sustained, but granted plaintiff's request for leave to reopen for further proof by recalling defendant as plaintiff's witness for further testimony. The substance of defendant's testimony as plaintiff's witness was as follows:

Gene had been in his employ as a general farm laborer for about eight years and the two of them had been engaged for two or three years in irrigating a part of the farm land. In so doing a five or six-inch main line would be run into the center of a field and from this line they used three-inch aluminum pipes laterally. Each day it was necessary to move the pipes and ordinarily took about six days to do an entire field. Formerly, twenty-foot lengths of lateral pipe were used, but about a week prior to the date of Gene's death they had commenced using thirty-foot lengths. Each of these weighed about twenty pounds. In moving the lateral lines from one position to another the pipes were disassembled and they moved them either by putting them on the wagon or by carrying them over their shoulders. In loading the pipes on the wagon the usual practice was to place them so that the coupling ends were at the front of the wagon which made them more uniform to handle when unloading and recoupling. It sometimes happened that a pipe was placed on the wagon wrong-end-to, which necessitated it being reversed. Normally this was done by carrying the pipe into the clear and turning it around. On occasions, however, the position of the pipe on the wagon was reversed by 'upending' it.

On the day in question defendant and Gene were engaged in moving thirty-foot lengths of pipe...

To continue reading

Request your trial
7 cases
  • Blackmore v. Auer
    • United States
    • Kansas Supreme Court
    • December 10, 1960
    ...negligence, and the employee who is hired and paid for assuming a known danger assumes the risk of his employment. In Sullivan v. Davidson, 183 Kan. 713, 332 P.2d 507, cited to the trial court, the deceased farm laborer was held guilty of contributory negligence as a matter or law, and the ......
  • Carpenter v. Strimple
    • United States
    • Kansas Supreme Court
    • June 9, 1962
    ...g., Nolan v. Hebrew, 177 Kan. 363, 365, 278 P.2d 1011; Siegrist v. Wheeler, 175 Kan. 11, 16, 259 P.2d 223; Sulivan, Administrator v. Davidson, 183 Kan. 713, 718, 332 P.2d 507), it must be remembered that every negligence action depends upon the factual situation disclosed by the record on w......
  • Albin v. Munsell
    • United States
    • Kansas Supreme Court
    • March 3, 1962
    ...Nolan v. Hebrew, 177 Kan. 363, 365, 278 P.2d 1011; Siegrist v. Wheeler, 175 Kan. 11, 16, 259 P.2d 223; Sullivan, Administrator v. Davidson, 183 Kan. 713, 718, 332 P.2d 507), it must be remembered that every negligence action depends upon the factual situation disclosed by the record on whic......
  • Henderson v. Kansas Power & Light Co.
    • United States
    • Kansas Supreme Court
    • May 16, 1959
    ...say the plaintiff was guilty of contributory negligence as a matter of law. Defendant cites and relies upon Sullivan, Administrator v. Davidson, 183 Kan. 713, 332 P.2d 507, but that case is not controlling here for the reason that it was an action against the employer of the electrocuted fa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT