Young v. Missouri Public Service Co.

• Decision Date: 13 January 1964
• Docket Number: No. 1,No. 50016,50016,1
• Citation: 374 S.W.2d 59
• Parties: Vickey Lou YOUNG, by her Next Friend, Orrin Gee, Respondent, v. MISSOURI PUBLIC SERVICE CO., Appellant
• Court: Missouri Supreme Court

Page 59

374 S.W.2d 59

Vickey Lou YOUNG, by her Next Friend, Orrin Gee, Respondent, v. MISSOURI PUBLIC SERVICE CO., Appellant.

No. 50016.

Supreme Court of Missouri, Division No. 1.

Jan. 13, 1964.

Poague, Brock & Wall, Barkley M. Brock, Julius F. Wall, Clinton, for appellant.

William J. Cason, Harold L. Caskey, Clinton, Paul Cisel, Windsor, for respondent.

COIL, Commissioner.

Vickey Lou Young, an infant, through a next friend, claimed $25,000 as damages from Missouri Public Service Company for the alleged wrongful death of her father. A jury awarded her $20,000 and defendant appealed from the ensuing judgment. We shall refer to the parties as they were designated in the court below.

Defendant contends that plaintiff failed to make a submissible case, that the trial court erred in giving instructions and in permitting allegedly improper jury argument by plaintiff's counsel, and that the judgment is excessive.

Plaintiff submitted her case under the res ipsa loquitur doctrine. In determining whether she made a submissible case we state and consider the evidence from a standpoint most favorable to her.

Defendant owned, maintained and controlled a series of 35-foot high creosoted poles located on the west side of the main street of Green Ridge in Pettis County. At the top of each of such poles, including, of course, the particular pole in question, was a crossarm eight feet in length. Six to eight inches from each end of that crossarm was an insulator and attached and running from pole to pole was an uninsulated wire; the two wires (one at each end of the crossarm) were known as the 'primary' line or lines. That line carried 7200 volts of electricity. Four or five feet below the primary line was a single wire carrying voltage for the operation of a street-lighting system in Green Ridge. That wire was energized only after dark. Three feet below the street-light circuit wire were three wires known as the 'secondary' system. Two of those wires each carried 110 volts and the middle wire carried no current and was known as a 'neutral.' About three feet below the three wires forming the secondary system was a telephone wire which ran from a telephone pole on the east side of the street across the street to a bracket or 'stob' on the side of the light pole and thence into a house directly west of that pole. There was a No. 6 soft-drawn copper wire which ran from the top of the light pole down its side to the ground at its base. The neutral in the secondary system was tied to that copper wire. Both of those wires would conduct electricity, as would the creosoted pole.

About 10 o'clock in the morning on October 26, 1956, Billy Young, plaintiff's decedent, and James Riggs, both employees of a telephone company, went to Green Ridge for the purpose of tightening some telephone wires. The day was clear, dry, and warm. Riggs and Young disconnected the telephone wire at the pole on the east side of the street intending to put back that same line and tighten it. Apparently, as Riggs was beginning to reconnect the wire to the pole on the east side, the wire broke at a place about two feet from where it was connected to the light pole on the west side of the street. The wire in question was 14-gauge iron which bent easily and had little spring to it. Young, in order to remedy the situation, obtained a coil of wire and some tools from their truck and put the wire coil on the ground, either at the base of the telephone pole on the east or at the base of the light pole on the west side of the street (the evidence is not clear as to which, and it is unimportant). Riggs, who had remained on the telephone pole on the east side of the street, was, in the meantime, still working on the tightening of other lines and consequently did not continue to watch Young but he, Riggs, did hear the wire 'paying out on the spool down there.' Shortly thereafter Riggs heard Young 'holler 'Jim" and there was a loud noise which came from the pole on which Young was working and which was identified as a noise which was made by the arcing of electricity from a 7200-volt line. Riggs looked toward Young, saw him apparently trying to push away from the pole, whereupon Young's metal climbing spurs 'kicked out' and he slid down the pole to the ground with his safety belt still intact around the pole. The safety belt was leather with some metal rivets in it. Riggs ran to Young, calling for help as he went.

Defendant had a crew working some distance south, 1 1/2 blocks or more away, and the foreman and members of that crew also rushed to the pole. Young was removed from the base of the pole. Tied to his safety belt was a piece of the old telephone wire four or five feet long. The coil of wire which Young had removed from the truck and which was on the ground and from which Riggs had heard wire uncoiling was never found although a search for it was made, but not until about an hour after the ambulance had removed Young's body. The topmost spur mark made by Young's metal climbers was 18 feet above the ground and thus 17 feet below the 7200-volt line. When Riggs saw him, Young's head was about 10 feet below the primary line. There were no burn marks on the primary line, the streetlight line, or on any of the wires forming the secondary, and there would have been burn marks on those wires if another wire had come in contact with any of them. Likewise, there were no burn marks on the short piece of wire which was attached to the decedent's belt. Young had a severe burn on his left hand and left thumb and what appeared to be burns on his back about midway between his shoulders and waist and what appeared to be a burn on his left hip.

There was evidence that there were trees under the lines in question, some of the limbs of which were as high as the primary wires. The evidence showed further that one of defendant's work crews was at the time of the casualty engaged in installing street lights in Green Gidge. They were working a short distance (about 1 1/2 blocks) south of the pole in question. The crew was hanging new lights across a street and they had to string wire. The foreman was hooking up the neutral to the streetlight circuit. They were working within four feet of the primary wires. One of the workmen nearest the pole in question heard a loud noise--a high voltage flash which came from a 7200-volt line. There was no other 7200-volt line in the entire area.

The res ipsa loquitur doctrine in Missouri applies when '(a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence. Clark v. Linwood Hotel, 365 Mo. 982, 291 S.W.2d 102, 104-105; and McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559, 92 A.L.R. 641.' Layton v. Palmer, Mo., 309 S.W.2d 561, 564, 66 A.L.R.2d 1242, and see Glasco Electric Co. v. Union Electric Light & Power Co., 332 Mo. 1079, 61 S.W.2d 955, 957[1, 2].

It was established that Billy Young was electrocuted. Defendant concedes that the electricity which killed him came from the 7200-volt primary wires at the top of the pole on which Young was located at the time, as is shown by this language in defendant's brief, 'The facts were such in this case that it was conclusive that Young received the 7200 current in some manner and it was eight feet above him.' No citation of authority is necessary to support the proposition that a jury reasonably could have found that electricity escaping on a dry, clear day from primary wires carrying 7200 volts, down a pole or through a wire or wires, and into the body of a telephone repairman on the pole who had not come in contact in any manner with the primary wires or any of the others, was an occurrence which does not ordinarily happen if those is charge use commensurate care.

Certainly the instrumentalities involved were under the management and control of the defendant. The 'management and control of the defendant does not mean, or is not limited to, actual physical control, but refers rather to the right of control at the time the negligence was committed.' McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 560, 92 A.L.R. 641. Defendant admits it had control of the primary lines, but suggests that it did not have exclusive control of the pole because Young was working thereon. But defendant concedes in its brief that the telephone company for whom Young worked had been given permission to use the pole and for its men to climb the pole. It seems obvious, therefore, that even if the pole, as such, was part of the instrumentality involved, rather than only the electric wires on the pole, the defendant demonstrated that it had the right to control its own pole by the very fact that it gave permission to the telephone company to use that pole. There was no evidence that the presence of the decedent interfered with or affected defendant's exclusive right to manage and control the instrumentalities involved.

There is no contention that defendant did not possess superior knowledge or a superior means of obtaining information as to the cause of the occurrence than did plaintiff.

It seems clear, then, that the facts of the present case, stated favorably to plaintiff, bring it surely within the applicable principles of res ipsa loquitur and that plaintiff made a submissible case.

Defendant argues, however, that only by piling inference upon inference may it be said that there is a submissible case; that decedent could not have been injured except by his own negligence and that there was no 'connection between defendant and the immediate cause of the injury.' We think defendant has failed to give recognition to the fact that a 'jury may believe all of the testimony of any witness or none of it or may accept it in part and reject it in part, just as the jury...