The Leavenworth Coal Company v. Ratchford

• Decision Date: 30 April 1897
• Docket Number: 446
• Citation: 5 Kan.App. 150,48 P. 927
• Parties: THE LEAVENWORTH COAL COMPANY v. JOHN RATCHFORD
• Court: Kansas Court of Appeals

48 P. 927

5 Kan.App. 150

THE LEAVENWORTH COAL COMPANY v. JOHN RATCHFORD

No. 446

Court of Appeals of Kansas, Northern Department, Eastern Division

April 30, 1897

April 30, 1897.

Error from Leavenworth District Court. Hon. Robert Crozier, Judge. Affirmed.

This was an action for damages for injuries suffered by the defendant in error from contact with a broken electric-light wire belonging to the plant operated by the plaintiff in error in the city of Leavenworth. As gleaned from the evidence, the facts were, that, during the early hours of the morning of May 7, 1889, a storm of rain, wind, thunder and lightning occurred, which raged till about four o'clock A. M.; that about 6 A. M. the defendant in error discovered that one of the plaintiff in error's wires had broken and that one end of it had fallen upon a stable or shed at the rear of his premises and was emitting sparks and blazing, to the apparent danger of his buildings. Seizing a base-ball bat he went out and sought to remove the wire, and, in doing so as it fell to the ground unexpectedly, he in some manner came in contact with it and was severely shocked, thrown down and apparently killed; that as a result he suffered much pain and was permanently crippled; that the plaintiff in error was operating a line of over forty miles, and employed, besides a superintendent and a lineman, two engineers, one of whom had charge of the plant from 7 A. M. till 7 P. M., and the other from 7 P. M. till 7 A. M.; that about five o'clock that morning, the night engineer discovered something was wrong with the operation of the plant and called the superintendent by telephone, and after three calls, that official came and perceived that something was wrong, but could not locate the trouble -- except that it was out on the line and not in the plant itself; that the superintendent spent a half or three-quarters of an hour in his investigations, when a boy arrived and informed him of the accident to the defendant in error, whereupon the plant was shut down and the superintendent repaired to the scene of the accident; that the plaintiff in error had in use a magneto bell, the latest and most improved device for ascertaining whether the circuits were complete and whether any wires were broken or grounded, but, although the superintendent had it at hand and had often used it before, its use was not resorted to on this occasion; that the plant could have been suspended, this test applied and operations resumed in three minutes, but, as expert electricians testified, under the conditions prevailing at the time, the test would not have disclosed the break but would have indicated an unbroken circuit.

The defendant in error had a verdict for twelve hundred dollars upon which judgment was entered, and a number of special questions were answered by the jury. The plaintiff in error's motion for a new trial having been overruled, it excepted, and brought this proceeding in error. The errors assigned fully appear in the opinion.

Judgment affirmed.

Hook & Atwood, for plaintiff in error.

C. F W. Dassler and Lucien Baker, for defendant in error.

OPINION

MAHAN, P. J.

Counsel for plaintiff in error make in their brief eleven assignments of error. The first is, that the jury erred in finding that the failure to use the magneto bell contributed to the accident. The special findings of the jury upon that question are as follows:

"Is the magneto bell the best or most approved device for the purpose of ascertaining whether an electric current is broken or not?" A. "Yes."

"Did the defendant have such magneto bell in its power house when the electricity was being generated at the time of the injury complained of?" A. "Yes."

"If, when it was discovered in the power house that something was wrong, the machinery had been shut down, or the electric current shut off, and the magneto bell had been used for testing whether the outside circuit was complete on which the broken wire was, would such test have shown that the circuit was complete?" A. "We do not know."

"Would such test as mentioned in the last question have indicated that the wire was broken?" A. "We do not know."

40. "Do you find that the negligence of the defendant was the proximate cause of the injury?" A. "Yes."

43. "If you answer question forty 'Yes,' then state whether such negligence consisted in not using the magneto bell and testing whether the circuit was complete." A. "Yes."

These are the only special findings of the jury which indicate that they found or held that the failure to use the magneto bell contributed to the accident. The evidence is sufficient to sustain the findings; the trial court passed upon them and the evidence in their support, and approved them; and we cannot say from the record that the jury was guilty of any wrong or error in making them.

The second assignment of error is that the answer of the jury to question forty-three is against the law and the evidence. Question forty-three is the last finding quoted above, and we think counsel have fallen into an error in their reference, for they add: "The failure to shut down the machine was not negligence." Special finding forty-four is as follows:

"If you answer that the defendant was negligent, then state the specific acts or omissions that constituted the defendant's negligence which was the cause of the injury." A. "For not shutting down the machine when they found there was something wrong."

Counsel doubtless intended to refer to special finding forty-four, instead of forty-three, in this second assignment. We cannot say that this finding is against the evidence; on the contrary, the evidence abundantly supports it. More than an hour before the happening of the injury, the engineer in charge was apprised that there was something wrong with the plant. The superintendent was called, and he had fully three-fourths of an hour's notice of some disturbance in the operation of the plant. He at once discovered that it was not in connection with anything inside of the plant, but that the difficulty was upon the line. A company operating such dangerous machinery as an electric plant for lighting ought to be held to the strictest rule of care and attention in its use; to the highest degree of care and attention exercised by men in the management of their affairs. It must be held to know the dangers that attend the operation of such a plant -- that a live wire is exceedingly dangerous; and it was not too much to say upon the evidence that the defendant Company had such notice of danger as to put its agents upon their guard and require them to exercise all the means and devices they had at hand to prevent any accidents that might occur. Indeed, it was a small thing to do. It was easy to suspend the electric current. It appears from the evidence that in three minutes the Company could have done this, applied the test that was at hand, and have ascertained whether anything had happened from which harm might come to the persons or property of the inhabitants of the city. The answer is not against the law or the evidence.

At the request of the plaintiff, the court gave the following instruction:

"If the jury from the evidence believe that the defendant could, by the exercise of due care and caution in and about its business of lighting the streets, stores and buildings aforesaid, have prevented one of its wires from falling upon the premises and upon the shed or barn of the plaintiff, then it was its duty to do so; and if the same could have been prevented by the exercise of due care and caution then it was the duty of the defendant to have exercised such care and caution; and if you find that such care and caution was not exercised, and that one of the wires of the defendant, because thereof, did fall into or upon the barn or shed of the plaintiff, then the defendant would, in any case, be guilty of negligence."

Counsel for the plaintiff in error criticise this instruction because of the expression "due care and caution;" that it assumed that the Company might, by the exercise of due care and caution, have avoided inflicting the injury upon the plaintiff. Taking this instruction in connection with the other instructions, it is not open to any criticism; because the court had told the jury what care or degree of care and attention constituted due care and caution. Instructions must be taken together, and not a single one, or a single paragraph, or a single clause considered by itself for the purpose of saying that the court erred.

The further assignment of error is that the defendant, plaintiff in error, requested the court to instruct the jury as follows, which the court refused to do, to wit:

"If the jury finds from the evidence that the injury was done to the plaintiff by means of one of the defendant's electric wires, no presumption arises from that fact alone that the defendant was negligent in such matters."

This principle of law was covered by the court in its general instructions.

The fifth assignment of error is that the court refused to give to the jury, at the...