Thomas v. Kansas Power & Light Co.

• Decision Date: 13 June 1959
• Docket Number: No. 41215,41215
• Citation: 185 Kan. 6,340 P.2d 379
• Parties: Agatha THOMAS, Administrator of the Estate of James R. Thomas, Deceased, Appellee, v. KANSAS POWER AND LIGHT COMPANY, a Corporation, Appellant.
• Court: Kansas Supreme Court

Page 379

340 P.2d 379

185 Kan. 6

Agatha THOMAS, Administrator of the Estate of James R Thomas, Deceased, Appellee, v. KANSAS POWER AND LIGHT COMPANY, a Corporation, Appellant.

No. 41215.

Supreme Court of Kansas.

June 13, 1959.

Syllabus by the Court

1. Established rules relating to appellate consideration and review of rulings on motions for a new trial, based on misconduct of jurors, stated and applied.

2. The record in an action by the duly appointed statutory representative of the estate of a deceased intestate to recover damages for wrongful death by electrocution examined and it is held that on account of misconduct of the jury, fully set forth and described in the opinion, the trial court should have sustained the defendant's motion for a new trial.

Robert E. Russell, Topeka, and James S. Lester, Oskaloosa, argued the cause, and Clayton E. Kline, M. F. Cosgrove, Willard N. Van Slyck, Jr., William B. McElhenny, and James L. Grimes, Jr., Topeka, were with them on the briefs for appellant.

Harold E. Doherty, Topeka, argued the cause, and William C. Leech, Oskaloosa, was with him on the briefs for appellee.

PARKER, Chief Justice.

This was an action by the duly appointed statutory (G.S.1949, 59-705 and 59-2232) representative of the estate of a deceased intestate to recover damages under the wrongful death statute. Plaintiff recovered and the defendant appeals.

The facts giving rise to the accident are not in dispute and can be stated thus:

On May 24, 1955, James R. Thomas, who with his wife and four minor children resided on a farm 3 1/2 miles north of Oskaloosa on Highway 59, purchased a television set from Lee M. Fraker of Winchester, who was engaged in the business of television sales and service.

On the same date Fraker went to the Thomas home for the purpose of installing the television set and erecting the television mast and antenna. He contacted Thomas and proceeded to assemble the television mast which, when assembled, was a 25 foot rod, one end being referred to as the base and the other end as the top. After assembling the mast Fraker accompanied by Thomas went around to the north side of the farm house. He placed the base end of the mast against the foundation of the house at the point where such mast was to be erected and then put the mast on the ground so that it was perpendicular with the foundation of the house and extended north of the building 25 feet.

At the time in question a 7,200 volt transmission high line of the defendant extended from a pole located on the east side of Highway 59 in front of plaintiff's farm yard and across such highway to the west and then across the farm yard for a span of 266 feet to a high line transformer pole located to the west and north of the back of the house. The high line ran 20 feet north of the house at the place where the television mast was lying upon the ground so that the mast was directly under defendant's transmission line, the top portion thereof extending 5 feet north of such line. Fraker, with Thomas present, then lifted the mast without accident to a point where it was perpendicular with the house, thus determining that it could be installed without coming in contact with the high line. Fraker, who subsequently testified without refutation that such action did not lengthen the mast, then placed the antenna upon the mast. After doing so he took the mast and the antenna and placed it in the same position the mast had been in when he first tested for clearance.

Thereupon Fraker and Thomas, with the Thomas children assisting, proceeded to attempt to place the mast and antenna in its proper position. In doing so Thomas took his position at the top or north end of the mast and antenna. Fraker took a position nearer the middle of the mast and the children at the base thereof so that they could help in placing the base end in a hole which had been dug for that purpose.

Having placed themselves as just indicated, Fraker and Thomas lifted the mast and antenna from its horizontal position and proceeded to push it upward in an arc perpendicular to the house for the purpose of placing such mast and antenna in its proper position. It is conceded that while engaged in this operation Thomas was killed as a result of coming into contact with electricity.

Following the death of her husband the plaintiff, Agatha Thomas, was appointed as the statutory representative of his estate. Thereafter she brought this action by filing a petition which is not included in this record. Subsequently she filed an amended petition wherein she alleged facts similar to those heretofore stated; asserted that the antenna either came in contact with or came near the high voltage wire or wires owned and maintained by the defendant; stated that as a result of such contact her husband received a violent shock and died as a result thereof; charged, among other acts of negligence not presently involved, that defendant wrongfully, unlawfully and negligently at the time mentioned and prior thereto, failed to provide for the clearance of its high voltage wire or wires above the ground in accordance with the provisions of 'Wire Stringing Rules' of the Kansas Corporation Commission; averred that said acts, without fault or negligence on his part, were the proximate cause of her husband's death; and prayed for the recovery of damages alleged to have been sustained by herself and her children as a result of his wrongful death.

Upon the overruling of its demurrer to the amended petition defendant filed an answer. In that pleading it admitted it was engaged, among other things, in the business of furnishing electricity; averred that if the plaintiff, in fact, had sustained damages as alleged in her amended petition, the same were due to no fault, blame or negligence on the part of it, its agents, servants or employees but were due to the negligent acts of plaintiff's decedent or others than defendant, its agents, servants or employees; and prayed that plaintiff take nothing by reason of her amended petition.

With issues joined as just related the cause came on for trial by a jury. Prior to or during the trial the parties stipulated, subject to a reservation that the stipulations went to the matter of measurements after the accident occurred, (1) that the defendant's transmission lines extending from the highway to the transformer pole back of the house carried a voltage of 7,200; (2) that the decedent was killed as a result of coming in contact with electricity; (3) that the span between the defendant's high line pole to the transformer pole back of the house was 266 feet; (4) that the lines at the scene of the accident, the house, the transformer and the poles were substantially the same at the time of the trial as they were at the time of the accident; and (5) that since the date of the accident defendant's wires had not been changed. Moreover, although not expressly stipulated, it is to be noted that during the progress and trial of the case defendant admitted that after the accident at least one of the two wires of the transmission lines leading to its high line transformer pole was 4 inches lower than required by the rules of the Corporation Commission. This, it may be added, was a conclusive admission for purposes of the trial and must be considered as binding on the defendant (In re Estate of Carrell, 183 Kan. 491, 496, 327 P.2d 883).

There is some controversy between the parties regarding how high the wires, leading from the pole on the east side of Highway 59 across plaintiff's farm yard to the high line transformer pole near the house, should have been at the time of the accident. If defendant introduced any evidence on this subject, as some arguments advanced by its counsel tend to imply, it was not included in its abstract or in the plaintiff's counter-abstract and is not before us.

The principal evidence adduced by plaintiff on the subject just mentioned, as well as other technical matters which throw much light on the existing factual picture, came from the lips of David E. Shad, a consultant engineer, whose qualifications as an expert are not challenged. Mr. Shad was first shown plaintiff's Exhibits 3 and 4, consisting of page 17 of the Corporation Commission's Rules regarding installation of wires effective on May 24, 1955. These rules were then introduced in evidence.

For reasons indicated the testimony of this witness, as abstracted by the defendant, will be lifted and quoted verbatim from its abstract which reads:

'He testified that referring to the regulations a high wire which extends a distance of 266' between poles should be 21.16' from the ground; that the overall length of the mast with the antenna attached would be approximately 26'. He computed there would be a 3' clearance between a line and the antenna, assuming that the line was 21.16' above the ground starting with the antenna on the ground so that the base end of said antenna was 20' South of said line. That electricity is generally distributed to a house by two wires from the highline to the transformer and two or three wires from the transformer to the house. The bottom wire on the particular system that he observed out there is commonly known as a neutral conductor; that both wires have voltage in them that change depending upon the load * * * depending upon whether or not there is a limb across the wire; and depending on the resistance of the ground.'

Direct examination:

'Q. Now I want to ask you another question. Assuming that the wire was nineteen feet high and assuming that you laid this television mast and antenna on the ground, and assuming that you measured a distance twenty feet north and lifted this mast and antenna and travelled, moved it in an arc from the ground to the south, would you have an opinion whether or not that antenna and mast would come in contact with that wire which was nineteen feet from the ground? Answer me yes or no. A. May I look at that sketch?

...