Washburn v. Laclede Gas Light Co.

• Decision Date: 03 July 1919
• Docket Number: No. 16347.,16347.
• Citation: 214 S.W. 410,202 Mo. App. 102
• Parties: WASHBURN v. LACLEDE GAS LIGHT CO. et al.
• Court: Missouri Court of Appeals

214 S.W. 410

202 Mo. App. 102

WASHBURN v. LACLEDE GAS LIGHT CO. et al.

No. 16347.

St. Louis Court of Appeals. Missouri.

July 3, 1919.

Laclede Gas Light Co.'s Motion for Rehearing Denied July 12, 1919.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Magdalen Washburn against Laclede Gas Light Company and Union Electric Light & Power Company. Judgment for plaintiff against both defendants, and each defendant appeals. Certified to Supreme Court.

Plaintiff instituted this action, claiming damages against the defendants Laclede Gas Light Company and Union Electric Light & Power Company for the death of her husband. The husband, Burton Washburn, was in the employ of the defendant Laclede Gas Light Company, and was killed on July 11, 1917, while on a pole to which were strung the wires of the two defendant. It is averred that the defendants, in the prosecution of their business, maintained over the public streets and alleys of the city of St. Louis divers poles and wires for the purpose of carrying electric currents of high voltage, dangerous to human beings, and likely to kill any person into whom a current might pass; that the Laclede Gas Light Company, hereafter for brevity referred to as the Laclede Company, maintained a certain pole on the northwest corner of Broadway and Mullanphy streets, in that city, on which pole there were a large number of double cross-arms, upon some of which the Laclede Company maintained wires carrying an electric current of 2,300 volts, and upon others of the cross-arms the Union Electric Light & Power Company, hereafter referred to as the Union Electric, by permission of the Laclede Company, maintained wires carrying a similar electric current; that prior to July 11, 1917, Burton Washburn was in the employ of defendant Laclede Company as a lineman, earning $4.50 a day; that on that 11th of July, Washburn and other employés of the Laclede Company, under the direction of a foreman of that company, and in the course of their employment, got upon this pole, which carried a number of wires of the defendants, in order to change and replace one of the cross-arms; that in order to do this it was necessary to detach from this cross-arm the wires supported on and by it, and to raise up and support the wires while the cross-arm was being detached from the pole and replaced by a new one; that the wires on the cross-arm which was being replaced belonged to the defendant Laclede Company; that on a cross-arm slightly above the one being replaced defendant Union Electric maintained wires of the character above described, two of which ran lengthwise along a cross-arm on the same side of the pole as that on which Washburn was located in doing the work of assisting to replace the cross-arm belonging to the Laclede Company; that the covering and insulation of the wires belonging to the Union Electric were old, worn, frayed, defective, and insufficient; that Washburn's position when assisting in the work was on the north side of the pole, and the first wire attempted to be raised from the cross-arm to be replaced was the second wire on the west side of the pole; that Washburn and another employé of the Laclede Company untied the wires from the insulator upon the pin in the cross-arm, whereupon other employés of the Laclede Company, under the direction of a foreman, undertook to raise the wire for the purpose of having it tied up out of the way of the contemplated work of taking down and replacing the cross-arm; that for the purpose of raising the Wire the Laclede Company negligently, as it is charged, furnished a certain block and tackle, consisting of two iron pulley blocks connected by a rope passing over the pulleys in the blocks and thence down to the ground; that each of these pulley blocks had an iron hook; that under the direction and instruction of the foreman a rope sling was first placed upon a cross-arm above the one to be replaced, on the portion of the cross-arm east of the pole, and the hook in the upper pulley block of the block and tackle was put into this sling, and the block and tackle passed thence downward on the north side of the pole, and the hook in the lower pulley block was placed under the wire which Washburn and his fellow employé had untied from the insulator; that this wire, as alleged, was negligently maintained by the defendant Laclede Company with insufficient insulation thereon, and with the insulation and covering thereon old, worn, rotten, defective, and insufficient to prevent a current of electricity from passing from the wire into the iron hook and pulley block, if the block should be drawn tightly against the wire; that this wire carried a current of electricity of high voltage, to wit, about 2,300 volts, which was dangerous to human life, and likely to cause the death of any person into whose body it should pass; that after the block and tackle had been attached to the upper cross-arm and to the wire, an employé of defendant Laclede Company upon the ground near the pole, under the direction of the foreman, pulled upon the rope of the block and tackle for the purpose of lifting the wire by drawing the pulley blocks close together, and so putting a strain upon the wire; that when the strain was put on the block and tackle and on the wire, the hook upon the lower pulley block was drawn tightly against the wire, and by reason of the insufficiency of the insulation thereon, as before charged, the hook and iron pulley block became charged with a dangerous current of electricity passing through the wire; that when the strain was put on the block and tackle the wire was raised, and the pin supporting the insulator to which the wire had been attached was pulled out of the cross-arm, and Washburn's left hand came in contact with the defectively insulated wire belonging to the Union Electric Company, negligently maintained, as it is charged, by that company on this pole, and his right hand came in contact with the iron pulley block, whereby a circuit was formed, and a dangerous current of electricity of high voltage was thereby caused to pass through Washburn's body, resulting in his instantaneous death.

It is charged that Washburn's death was directly caused and contributed to by the negligence of defendant Laclede Company in the following particulars, viz.:

"(1) In negligently permitting the Union Electric Light & Power Company to maintain upon said pole said insufficiently insulated wire with which plaintiff's husband's left hand came in contact, and with the insulation on said wire old, worn, rotten, frayed, defective, and insufficient.

"(2) In negligently furnishing plaintiff's said husband and his fellow employés engaged in doing said work a block and tackle with iron pulley block instead of wooden ones.

"(3) In negligently maintaining said wire, under which said hook was passed, insufficiently insulated, and with the insulation thereon, old, worn, rotten, defective, and insufficient.

"(4) In negligently connecting said lower iron pulley block with said wire by means of an unprotected and uninsulated iron hook attached to said iron pulley block.

"(5) In negligently undertaking to raise said wire of the Laclede Gas Light Company, by means of said iron pulley block with said iron hook attached thereto, by hooking said hook on and under said wire, when the insulation and covering on said wire was insufficient to prevent the electric current in such wire from passing into said iron book and pulley block.

"(6) In negligently causing said pulley blocks and tackle to be so hung from the east to the west side of said pole and in such manner and position that when strain was put upon said tackle, pulleys, and wire, after the lower pulley block was hooked into the wire to be moved, the lower pulley block was likely to become charged with a dangerous current of electricity, and to come in contact with plaintiff's husband and injure him.

"(7) In negligently failing to cover said Union Electric Light & Power Company's said wire with some apron or temporary covering of insulating material so as to protect plaintiff's husband from injury in case he should come in contact with said wire.

"(8) In negligently failing to place a rope sling or an apron or temporary covering of insulating material between the iron hook on said lower pulley block and the wire under which said hook was placed.

"(9) In negligently failing to furnish the plaintiff's husband a reasonably safe place to work."

Plaintiff further charges that her husband's death was directly contributed to and caused by the negligence of defendant Union Electric Company in the following particulars, namely:

In negligently maintaining on the pole the negligently insulated wire with which Washburn's left hand came in contact, and upon which wire the insulation was old, worn, rotten, frayed, defective and insufficient.

Placing her damages at the sum of $10,000, plaintiff demands judgment for that amount.

The defendants answered separately; the Laclede Company, after a general denial, pleading contributory negligence on the part of Washburn, in that he knew that he was working among wires that were dangerous and insufficiently insulated, and worked among them with knowledge of this fact, and that while he was provided with rubber gloves, and required, under the regulations of the Laclede Company, to wear them while engaged about his work and liable to have his hands come in contact with wires, and notwithstanding the fact that rubber gloves were upon his person at the time and place mentioned in the petition, he had carelessly and negligently failed to use and wear the gloves while so at work.

The Union Electric, after a general denial, also pleaded contributory negligence, alleging Washburn's familiarity with the situation and conditions in which he was working, and that while provided with rubber gloves he had failed to have them on at the time.

Replies in usual form of denial were...