Worley v. Kansas Elec. Power Co.

• Decision Date: 08 July 1933
• Docket Number: 31111.
• Citation: 138 Kan. 69,23 P.2d 494
• Parties: WORLEY v. KANSAS ELECTRIC POWER CO.
• Court: Kansas Supreme Court

23 P.2d 494

138 Kan. 69

WORLEY v. KANSAS ELECTRIC POWER CO.

No. 31111.

Supreme Court of Kansas

July 8, 1933

Syllabus by the Court.

Where farmer tramping ensilage in silo erected near high-voltage power line was electrocuted, whether company was negligent in failing to erect warning sign and in allowing undue sagging of wires held for jury.

A power company was authorized to build a line in a highway carrying 13,200 volts, and extended its line over private property but placed no warning signs of high voltage and danger on the line. There was also an undue sagging of the wires. The farmer built a silo on and near the boundary of the farm and close to the power line, and his employee, while tramping ensilage in the silo, was electrocuted. The company did not learn of the erection of the silo close to its line until after the accident. The wife of the deceased brought an action alleging that her husband's death was caused by the negligence of the power company. The jury found that the power company was negligent in failing to place warning signs of danger along its line and in allowing the undue sagging of the wires. Held, under the facts and circumstances disclosed in the record, the findings have sufficient support, and that the defendant is liable in damages for the death of the injured person.

Appeal from District Court, Lyon County; Lon C. McCarty, Judge.

Action by Arthur Worley, as administrator of the estate of Wilbur Davis, deceased, against the Kansas Electric Power Company. Judgment for plaintiff, and defendant appeals.

DAWSON BURCH, and THIELE, JJ., dissenting.

Gilbert H. Frith, of Emporia, and Raymond F. Rice, of Lawrence, for appellant.

Robert Stone, James A. McClure, Robert L. Webb, Beryl R. Johnson and Ralph W. 0man, all of Topeka, and S. S. Spencer, of Emporia (Thomas C. Swanson, of Kansas City, of counsel), for appellee.

JOHNSTON Chief Justice.

This action was brought by Arthur Worley, administrator of the estate of Wilbur Davis, deceased, against the Kansas Electric Power Company, to recover damages for the death of Davis, who was killed by coming in contact with a high tension transmission line owned and operated by the defendant. At a trial with a jury, a verdict was returned finding that the defendant was negligent and liable for the death of Davis, and the damages found were fixed at $7,200. The following special findings were returned by the jury:

"1. Was the line as originally built by the three cities (Admire, Allen and Bushong) in conformity with the rules and regulations and standards required by the Public Service Commission of the State of Kansas? A. No.

"2. After the defendant took over the line above referred to did it maintain it in accordance with the rules and regulations of the Public Service Commission? A. No.

"3. Is it customary amongst those companies engaged in the business to attempt to insulate wires exposed to the weather, carrying 13,000 volts or more? A. No.

"4. Is it reasonable or practicable to attempt to insulate such wires? A. No.

"5. Unanswered.

"6. When was the silo upon which deceased was standing at the time of the accident built? A. About two or three days prior to day Davis met his death.

"7. Did the defendant company have any knowledge or notice that the silo upon which deceased was standing at the time of his death had been erected? A. No.

"8. Was the deceased, when tramping the ensilage in close proximity to the wires of the defendant, exercising due care for his own safety? A. Yes.

"9. If you find that the defendant was guilty of negligence, state what act or acts constituted such negligence. A. 1. No warning signs of danger. A. 2. Wires not sufficiently taut to prevent undue sagging according to standards of Public Service Commission of Kansas."

Defendant appeals and contends that negligence was not established by the evidence and that its demurrer to plaintiff's evidence, which was overruled, should have been sustained.

It contends also that there was error in the rejection of evidence offered by defendant and error in the instructions given to the jury, also error in refusing to set aside special findings of the jury, and that the findings of the jury as made failed to show negligence on the part of the defendant.

It appears that the power line was not originally built by the defendant. It had a central station at Emporia and a line to Americus. The towns of Bushong, Allen, and Admire desired to obtain electric energy from defendant's central station, and these towns contracted with defendant to furnish energy over a transmission line to be built by themselves. The extension line, which was about nineteen miles long, was built by the three towns, and the poles were thirty feet long, set five feet in the ground, and the line consisted of three steel wires carrying a current of 13,200 volts. Before the extension was built, application had been made to the Public Utilities Commission for permission to build the line, stating the plans and specifications upon which it was to be built, and the application was approved by the commission. Shortly after it was built, the extension line was acquired by the defendant and was operated by it at the time that Davis was killed. The place of the accident was near the city of Allen, on a farm of 160 acres, bounded on the east and north by public highways, and the line in question ran east and west along the north edge of the farm. A tenant named Wheat had rented the farm from the owner, and two or three days prior to the accident had constructed a silo near the power line.

The power line, it appears, was built according to plans submitted to the commission, except that it was built on the south side of the highway instead of the north side, as planned, and that the poles were planted on the adjoining farm instead of on the highway. The employee who laid out the line testified that he intended it to be in the highway. Although there is some dispute in the evidence as to how far it encroached on private property, there was testimony showing that the corner pole near the place of the accident was 2 feet and 7 inches over the property line and on the farm, and that the cross-arm carrying the wires on the next pole extended 3.95 feet inside the property line. The corner pole and wires were 24.7 feet from the ground, and the next pole, which was 295 feet away from the corner pole, was 23.3 feet from the ground. Between these poles there was a considerable sag of the wires. The silo was 18 feet high, and had been built within the property line and about 2 feet and 2 inches from the south wire. It appears that the extension line was built about six years before the accident, and shortly after it was built by the three towns named it was acquired by the defendant, and since that time, and when the accident occurred, it was operated by the defendant. The place of the accident was on the north edge of the farm, the line running east and west on the north edge of the farm. Jeff. Wheat had rented the farm from the owner and had grown cane thereon for ensilage. He built the silo on the north side of the farm, and, as stated, close to the power line about two or three days prior to the accident.

It does not appear that the defendant had any notice of the building or location of the silo until after the accident. The day before the accident, ensilage had been placed in the silo. Wheat, the tenant, had brought Davis from town to assist him in filling the silo. On the morning of the accident, Davis went up on the top of the silo, which was nearly filled, and was tramping down the loose damp cane which had been placed in the silo the previous day, and while doing so the accident occurred. No one saw him at the moment he was electrocuted. A witness near the silo said he heard Davis gasp and looked up and saw that he was stiff and was falling on the wires. Whether he touched the wires inadvertently or purposely, or had accidentally fallen against them, or had been shocked by his proximity to the wires without actual contact, was not shown by the evidence. There was testimony to the effect that electricity is a magnet, and that there is danger of going within 3 feet of a wire carrying a voltage of 13,200 volts. Some witnesses said there was danger when being within 10 or 12 feet, especially if the person is stranding on a damp footing. The ensilage on which Davis was walking was green and necessarily somewhat damp. There were no burns or bruises on the hands of Davis, but there...