Weddle v. Tarkio Electric & Water Co.

• Decision Date: 02 May 1921
• Docket Number: No. 13933.,13933.
• Court: Missouri Court of Appeals
• Parties: WEDDLE v. TARKIO ELECTRIC & WATER CO.

230 S.W. 386

WEDDLE v. TARKIO ELECTRIC & WATER CO.

No. 13933.

Kansas City Court of Appeals. Missouri.

May 2, 1921.

Appeal from Circuit Court, Andrew County; Alonzo D. Burnes, Judge.

"Not to be officially published."

Action by H. C. Weddle against the Tarkio Electric & Water Company, a corporation. From judgment for plaintiff, defendant appeals. Reversed, and cause remanded.

McCune, Caldwell & Downing, of Kansas City, W. R. Littell, of Tarkio, and Booher & Williams, of Savannah, for appellant.

John A. Gerlash, of Tarkio, Hunt, Bailey & Hunt, of Rockport, and G. C. Sparks, of Savannah, for respondent.

TRIMBLE, P. J.

Plaintiff, a telephone lineman in the employ of the Atchison County Mutual Telephone Company, while engaged in work on a telephone wire, was shocked, burned, and badly injured by a charge of electricity from an electric wire of the defendant, the Tarkio Electric & Water Company, escaping to and electrifying said telephone wire. He brought this suit for damages, and recovered a verdict and judgment of $5,000. The defendant has appealed.

Appellant's first contention is that the trial court should have directed a verdict for defendant, because: First, the plaintiff was guilty of contributory negligence as a matter of law; second, because there was no evidence of defendant's negligence. This calls for a somewhat detailed statement of the facts as shown by the evidence from the standpoint of the plaintiff, in view of the verdict in his favor, including all reasonable inferences the jury could rightfully draw from the evidence in support of the verdict.

The defendant was the sole manufacturer of electric current in the city of Tarkio, Mo., and, aside from its wires carrying a current of 1,000 volts (reduced possibly to 110 volts in the street), for use in the city of Tarkio, it maintained a line of two high tension wires carrying 2,300 volts of electricity, which ran north out of town, along the east side of Fourth street, to Westboro, a neighboring city, over which line the defendant furnished to Westboro a 24-hour service of electric current. (It also had two other lines of similar high tension wires, one running to Fairfax and the other to the "Rankin Farm," but these need not be considered, since they did not at any place cross the telephone lines hereinafter mentioned.) The telephone company had a line of telephone wires which ran west on Park street until it crossed Fourth street, and then at the west side thereof, it turned north along the west side of Fourth street. Hence the high tension wires of the defendant running along the east side of Fourth street crossed the aforesaid telephone wires at the intersection of Park and Fourth streets, the said electric wires being above the telephone wires. All of the wires, telephone and electric, were strung on poles set at intervals; and on the west side of Fourth street at its intersection with Park, was a telephone pole where the telephone line turned north.

Plaintiff was the telephone company's line-man; his duties were to keep the telephone lines in repair, look after the switchboard, repair telephones, and remedy trouble on the lines, the reports of which were put down in the "trouble book" by the telephone operators or centrals. Plaintiff's duty was to look at this "trouble book" each day, and then go out to remove the trouble therein noted.

About 11 o'clock in the morning of July 11, 1917, plaintiff learned, or was told, that there was an "electrical disturbance" on the Traub line, Mrs. Traub living somewhere north of the intersection of Fourth and Park streets, and her two lines ran from her house into the terminal box on the west of Fourth street, and thence, with other telephone wires, south to the turn at Park, and then east along Park street under the aforesaid electric wires at the point where the electric and telephone wires crossed as heretofore stated. About 1:30 in the afternoon of that day, plaintiff went out to that locality to locate and remedy the trouble which had been reported. He went to the telephone pole at Fourth and Park streets (which was about 42 feet west of where the electric and telephone wires crossed each other), and climbing that pole, looked east along the telephone wires to the point where the electric wires crossed. He saw there was, between the electric and telephone wires, a "clearance of about three inches," but did not observe anything wrong with the insulation on the electric wires. He did not know these were high tension wires of 2,300 volts, but thought they were the ordinary wires for current about town. Seeing that the wires were not in contact, but were about 3 inches apart, he went north to the next pole, and climbed it, intending to put an instrument called a "test set" on the wire in order to call back into the telephone office and tell them that the line was clear; that there was no trouble. The telephone pole was leaning, so that plaintiff had to' climb on the upper side of the pole and reach over the telephone cable. In affixing his instrument to the wire in order to be able to call back into the telephone office, necessarily he touched the telephone wire.

The evidence is that it was a clear, dry, sunshiny day, but there was a wind which blew at intervals in strong, fitful gusts. Plaintiff had on his safety strap by which he was securely held from falling to the ground, even if he otherwise had no hold. When he touched the telephone wire he received a current of electricity which began burning his hand and arm, and, so long as the wire was charged, he was unable to withdraw his hand. He screamed "My God! I am burning to death." A boy, living at the adjacent house and seated at the woodpile near the post, was watching him, and saw the sparks fly from his arm as he laid it across the wire. The boy's mother was hanging out her wash in the yard, and heard plaintiff's scream. She asked him if he could not get down, to which he replied, "Not without help." Directing her boy to run for help, the woman ran to her telephone to call for aid, and after doing this she again ran out, and asked him if he could get down, and upon his replying in the negative, she ran again to the telephone for help and while she was at the telephone he got down. When the current ceased to operate so as to release plaintiff's hand and arm from the wire, he found himself hanging to the pole in his safety strap and he thereupon got down the pole and went to his home. The evidence is that his hand is badly mutilated, and the use of it practically destroyed. The doctor says there was a burn across the palmar surface of the fingers, burned so deeply through as to involve the tendons of the second, third, and fourth fingers, the index finger not being so deeply burned; and above the wrist on the same arm (the left) was a deep burn cutting across the muscles and tendons of the forearm. Some of the tendons were sticking out of the second, third, and fourth fingers, and were destroyed, so the doctor took them out; and the belly of the muscles, as well as some of the tendons of the forearm, were also badly injured. The fingers and muscles have contracted, and the hand and arm are greatly emaciated. The injury is therefore serious and permanent.

In claiming that the plaintiff is conclusively shown to have been negligent, defendant apparently reads the record as if it indisputably showed that plaintiff, knowing or having reason to believe the telephone wire was charged wth an electric current, took hold of it, risking the consequences of receiving whatever current it might have. If this were the case, then doubtless he would be guilty of contributory negligence as a matter of law, for though he was only a telephone lineman of several years' experience, and had never handled or worked with electric wires, yet he knew the danger of touching a charged wire. But the record does not convey such an idea as that hereinabove expressed. On the contrary, the record manifestly discloses that plaintiff first looked at the place...