Ethеl F. Hamilton, plaintiff, sued the Laclede Electric Cooperative, a corporation, defendant, for $10,000 damages for injuries received as the alleged result of negligence in the construction and maintenance of a high voltage uninsulated electric wire in use to supply electric power to plaintiff’s farm home. The court sustained defendant’s motion for a directed verdict at the close of plaintiff’s case on the ground plaintiff’s evidence established her contributory negligence as a matter of law.
Plaintiff and her husband were engaged in removing a pipe and pump from a drilled well when the pump came in contact with one of defendant’s wires and plaintiff was severely shocked and burned. Her petition charged defendant was negligent in locating a high tension uninsulated wire directly over the well; in failing to insulate said wire and keep the same insulated; and in failing to warn plaintiff of the danger. She contends in her brief defendant should have “located said line in a different place, at a greater distance as well as height from the well” or should have “insulated said line”; and that plaintiff was not contribu-torily negligent as a matter of law.
Mr. and Mrs. Hamilton, as husband and wife, had purchased a 120 acre farm in Dallas county, Missouri, and took possession on March 10, 1954. They knew the farm had electric service. Plaintiff stated she would not want it without electric service. The Plamilton house is east of a north-south gravel road, facing it. They had a big yard south of the house, with the drive on the south side of the yard. A “drilled well,” with a “pitcher pump,” was in a well house 12 to 15 feet south of the east side of the house. The well house was about 3½ feet wide, 10 or 12 feet long and 7 or 9 feet high, with the well in the southwest corner. The door was on the north side of the well house, and about over the well was a hole in the roof, about 6 or 8 inches wide and extending 12 to 18 inches down the roof.
Defendant’s high tension line was on the west side of the road. The. transformer pole for service to the Hamilton farm was *13 south and east of the well house and 65 steps of approximately a yard each from defendant’s main line. Three insulated wires ran northeast from the transformer pole to other poles. The meter measuring the service and a yard light were on a pole or on different poles in the yard. The two wires from the road to the transformer pole are here involved, particularly the top wire. They were uninsulated and carried 7,200 volts. Mr. Hamilton testified these wires were “four big steps” south of the well. This was the testimony of Otis Richardson, plaintiff’s other witness on the issue, who testified that the pump and pipe had to lean in a southerly direction about 12 feet before it would hook onto the wire involved.
The water from the well became muddy, unfit for drinking, cooking or washing. Mr. Hamilton had pulled pumps before, and plaintiff had helped pull pumps at least a couple of times. She testified that she and her husband owned the farm and the pump and pipe together and that they were pulling the pipe for their joint benеfit, as did Mr. Hamilton. Neither knew the depth of the well nor the length of the pipe in the well. They decided to pull the pump about 3 p. m., March 25, 1954. Mr. Hamilton went to the well house, took some “rotten” boards out of the floor and handles and things off of the pump. The dirt floor was damp. He called for plaintiff to help. Mr. Hamilton would lift the pump and pipe about 3 feet, plaintiff would hold it while he secured another grip, and this procedure would be repeated. No wires were over the well house. Plaintiff testified: “If you had kept them over there [the hole in the well house roof], we would have seen them”; but neither she nor her husband looked up through this hole.
Mr. and Mrs. Hamilton were facing north, toward the door, and just as the pipe cleared the well casing therе was an “explosion” and Mr. and Mrs. Hamilton were “knocked” out of the door and severely injured. Plaintiff and her husband were taken to a hospital in Lebanon, where they remained overnight. They returned home the following day. Plaintiff re-entered the hospital on April 15th and remained there until May 10,1954.
The pipe and pump assembly had contacted the top wire to the transformer pole, and the pump spout had caught on it. Mr. Hamilton testified the pipe was in joints, “two or three”; but they did not unjoint it, because they had no wrenches to take it apart. He thought the joints were short, probably 12 feet. The pipe and pump were measured later and were 31 feet and 2 inches in length, the, pump being 12 to 18 inches long. The whole weighed about 100 pounds. When plaintiff was injured, 24 or 25 feet of pipe was above .the hole in the roof, which was between 7 and 8 feet above. the ground.
On March 25, 1954, plaintiff was 49 and Mr. Hamilton was 43 years old. He had worked for a utility company in “high lines,” had known from the time he was 17 or 18 that electricity was dangerous, and had quit such employment because of his fear of electricity. Plaintiff worked for “Sears Roebuck in Kansas City” from 1925 to 1946. She then worked for four years as a driver of a taxicab in Kansas City. She and Mr. Hamilton were married in 1946. After her marriage she drove a taxicab in Oklahoma. Her husband was in the United States Army and was ordered overseas. She went to New York and worked in the “Sears telegraph office” for five months. She then joined her husband overseas. They purchased the farm soon aftеr his discharge from the Army.
The Hamiltons had no telephone, only electric service. They knew electric service was furnished by means of wires strung on poles. When they purchased the farm, plaintiff secured the meter reading from defendant and checked the meter to see if the reading was .correct. The lights and electric appliances in the house were оperating properly. All of plaintiff’s witnesses testified there was 'nothing obstructing the view of the wires and poles serving plaintiff’s premises. Plaintiff testified with ref *14 erence, to the wires: “Q. If you, had looked up there, you could have seen them ? A. Yes, they were in plain sight.” However, the testimony of plaintiff and her husband is to the effect that while they knew wires furnishing electric service were dangerous,- each “paid no attention” to the. wires until after they were injured. Mr. Hamilton stated he had probably seen the wires, but when he' got ready to pull the: pump, that didn’t' enter his mind, “didn’t think about it at all”; that “Q. If you had-seen the wire there you would have known it was dangerous? A. If I had seen the-wire I'would have known it was an elec-, trie wire and dangerous. Q. You didn’t look to see? A. No.” If he had unjoint-ed the piрé, it-would not have come in contact with the wire. Asked if he took any precaution at all to keep the pipe from coming in contact with the electric wires, he answered: “I said' I didn’t even know those electric wires were up there.” After the occurrence, Mr. Hamilton looked at the wire in qeustion and could easily tell it was -not insulated; but plaintiff could not tell whеther the wires were insulated. Plaintiff’s witness Otis Richardson, a neighbor, testified he had no trouble knowing which wires were insulated and which were not while standing oh the ground; and that the distance from defendant’s line to his yard pole, the location of which was not shown, was 60 steps and the wire was insulated.
Plaintiff, asked if she would have intentionally pulled the pump and pipe into the wires, answered: “Absolutеly not. Q. Why? A. Who wants to get hurt? Q. You knew it would be dangerous to do that? A. Why, sure.” She also testified: “But I didn’t realize there was a wire within a mile of that pump house because I hadn’t paid any attention to it.” And: “If I had an idea he [her husband] was going to put a pump into a live wire, I would •have stopped him and so would anybody”; she would have warned him.
Plaintiff cites cases on the duty of an electric utility to exercise the highest degree of care to prevent injury to persons who-lawfully might come in close proximity to its wires, Gladden v. Missouri Pub. Serv. Co., Mo.,
It is stated in Atchison, T. & S. F. R. Co. v. Calhoun,
There is no direct testimony on the height of the wire in question. From thе length of the base and approximate length of the hypotenuse of the right angled triangle involved (the distance from the well to the defendant’s line and the total length of the pipe or its length above the roof of the well house) some reasonable estimate of the height may be calculated. This would bear on defendant’s actionable negligence. We recognize contributory negligence postulates negligence; but the evidence on behalf of plaintiff appears to so clearly establish her negligence as a matter of law directly contributing- to her injuries that we rule this review on the ground *15 stated by the trial court and earnestly controverted by plaintiff. In so proceeding we do not rule the issue of actionаble negligence.
An electric utility is not an insurer of the safety of persons. Its liability rests upon the rules of negligence. State ex rel. Kansas City L. & P. Co. v. Trimble,
Plaintiff cites many cases on contributory negligence.
Davis v. Missouri El. P. Co., Mo.App.,
In Thompson v. City of Lamar,
In Privette v. City of West Plains, Mo. App.,
In Lebow v. Missouri Pub. Serv. Co., Mo.,
In Gladden v. Missouri Pub. Serv. Co., Mo.,
The above cases are representative of plaintiff’s citations. They involved instances where the injured person came in bodily contact with electric wires in populous areas and at public places or at places and under circumstances where defendant knew, or in the ■ exercise of proper care should have known, that persons rightfully transacting business thereat were likely to come in bodily contact with the wires. In some .the current jumрed or arced and caused the injury. They differ from the factual situation in the instant case, where there is no indication of rec-cord that defendant’s wires were, or were likely to be, touched by the body of a person on the farm. Thompson v. City of Lamar, supra, 17 S.W.2d loc. cit. 972, quoting with approval Ratliff v. Mexico Power Co., supra.
We find no Missouri cases directly in point. The following cases from other jurisdictions involved somewhat similar facts.
Dresser v. Southern Calif. Ed. Co.,
In May v. Illinois P. Co.,
In Hale v. Montana-Dakota Util. Co., 8 Cir.,
Consult also Gladden v. Missouri Pub. Serv. Co., supra; Morris v. Kansаs City L. & P. Co.,
“One may not disregard the laws of prudence and exact of others a primary obligation to protect him against his lack of caution. If he exercises due care for his own safety, then, absent information to the contrary, he may rely upon the presumption that others will obey the law.” Dempsey v. Horton,
*17
We said, citing authority, in Branscum v. Glaser, Mo.,
Court en banc has observed that a bright,' intelligent boy, doing well in school, past 14 years of age and living in the city, should understand and appreciatе it would be dangerous to come in contact with an electric wire. State ex rel. Kansas City L. & P. Co. v. Trimble,
In the instant case plaintiff and her husband had no telephone. Their electric appliances had been functioning properly. They had seen the poles in the yard, had to walk under the wires, and knew that electricity was brought to the house by means of wires and poles. No wires were over the well house. The wire involved was 12 feet south of the well. The reсord indicates no injury would have resulted had the pipe slanted in some other direction. There were no obstructions to their view of the poles and wires, which plaintiff stated were in “plain sight.” Plaintiff and her husband knew that wires carrying 'electricity were dangerous. They say they did not see the wires; that they did not look. They in effect paid no attention to the wires. The evidence оn behalf of plaintiff is that they took no precaution whatsoever. Nothing had occurred to distract plaintiff’s mind from the situation at hand, and in the circumstances of record, lack of attention or even forgetfulness does not excuse. Clark v. Missouri Nat. Gas Co., Mo.,
Other issues are advanced in defendant’s brief. They need not be developed.
The judgment is affirmed.’
PER CURIAM.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.
All concur.
Notes
. Consult Coleman v. Haworth,