91 Kan. 450 | Kan. | 1914
The plaintiffs recovered a judgment for the death of their minor son caused by a shock of electricity received by touching a windlass attached to an electric light pole situated on the Fort Leavenworth Military Reservation. The defendant was under contract with the government to furnish the electric current for illuminating and small motor purposes on such reservation, such current to be furnished at such times and places and in such quantities as required by the service and as directed by the officer in charge. The current for arc lamp exterior lighting was to be paid for at a flat rate, and the company was to maintain transformers or regulators at its power house so as to furnish the proper power for the lamps in use, and to supply, maintain and trim all arc lamps used for street lighting. The electricity furnished under this contract, regulated by the transformers, was a current transmitted to the lamps upon the reservation, returning thence to the company’s power plant. The light pole where the injury occurred is located upon a thoroughfare or public highway and upon the reservation, near the intersection of this highway and one of the city streets. It appears that from one of the wires on the pole in question the insulation had worn off and the wire had become looped over an iron step on one side of the pole, and the chain of the windlass by which the arc light was raised and lowered coming in contact with such step became charged with electricity, and the deceased touching the windlass received the shock from which he died. An employee of the- defendant attended to the care and maintenance of the lamps, trimming them about once in seven days. He had the use of a crank with which to lower and raise the windlass but was not shown to have any further duty than the care of the lamps. He stated that if anything was out of order he informed the post elec
Two principal contentions are made, first, that the action can not be maintained because the death occurred on the reservation, which is under the exclusive jurisdiction of the United States; and second, that having no contractual right to inspect or repair the equipment belonging to the government the defendant can not be held liable for a defect therein.
Section 8 of article 1 of the federal constitution provides that congress shall have power to exercise exclusive legislation in all cases whatsoever over all places purchased by the consent of the legislature of the state in which the same shall be for the erection of forts, magazines, arsenals, dock yards and other needful buildings. The reservation in question was not acquired in this way, but jurisdiction was ceded by chapter 66 of the Laws of 1875 (Gen. Stat. 1909, § 4584). This act saved to the state the right to serve civil and criminal process within the reservation in suits or prosecutions for or on account of rights acquired, obligations incurred or crimes committed in the state but outside the cession and reservation. It saved also to the state the right to tax railroads, bridges and other corporations, their franchises and property, on such reservation. Jurisdiction of the state in criminal matters was asserted before the act of cession in Clay v. The State, 4 Kan. 49. Afterwards, in Ft. L. Rld. Co. v. Lowe, Sheriff, 27 Kan. 749, it was held that the state could tax railroad property on the reservation, and in C. R. I. & P. Rly. Co. v. McGlinn, 28 Kan. 274, this court decided that the railroad fence or stock law of 1874 was in force there. In Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525, the decision in 27 Kan. 749 was affirmed, and it was held that on such reservation the buildings, appurtenances and instrumentalities used by the government will be free from any such interferences and jurisdiction from the
There are two theories and two lines of decisions touching the question of the defendant’s liability. One is that by the act of furnishing for use so dangerous a force as an electric current a party is bound to know that the poles and wires over which it is to be conveyed are in such condition that the furnishing of such current will not endanger life or limb. The other is that the one who provides and controls the apparatus and equipment over which the current is conveyed is bound to attend to their safety, and that its mere supply to such party does not render the party supplying it responsible for the condition of such apparatus and equipment. The cases chiefly relied on by the defendant in support of the latter, contention are Minneapolis General Electric Co. v. Cronon, 166 Fed. 651, 20 L. R. A., n. s., 816; Gas & Electric Co. v. Speers, 113 Tenn. 83, 81 S. W. 595; Nat. F. Ins. Co. v. Denver Consol. E. Co., 16 Colo. App. 86, 63 Pac. 949; and Fickeisen v. Electrical Co., 67 W. Va. 335, 67 S. E. 788, 27 L. R. A., n. s., 893. In the first of these cases the widow of the deceased sued to recover damages for a death caused by coming in contact with an electric wire suspended from the wall or ceiling of a blacksmith shop to which was attached an electric bulb for use in shoeing horses. When not in use the wire was hung on a nail driven into the side of the wall. The shop had caught fire and the deceased had entered and was trying to extinguish it when he lost his life. The inside wiring of the shop was done under an independent contract by the electric company three years before the accident and became the private property of the owner of the building. The use of the suspended wire was for his own convenience and the manner of hanging it on the wall was of his own selection. The
“ ‘Where, however, they are only employed to deliver the current by connection with wiring already made by the individual who owns the property, it seems to us that their responsibility ends when the connection is properly made under proper conditions and they deliver the current in a manner which will protect both life and property.’ ” (166 Fed. 656.)
In the Speers case the company contracted to furnish electricity for the illumination of a sign in front of a building but had no interest in or control over the wires or appliances by which the current was conducted thereto, and it was held not liable for the killing of the plaintiff’s horse by electricity escaping from such wires through a defect in construction or insulation. It was said:
“It is true that electricity is a subtle and, unless controlled, a dangerous agent; yet we do not see how this fact fixes responsibility on this company when it simply furnished the electric current to the wires of Roberts, over which it had no control, and with regard to which there was on its part no duty of inspection, and when the record does not impute to it any knowledge of the defect producing the loss complained of.” (113 Tenn. 86.)
In the case against the Denver Consolidated Electric Company (16 Colo. App. 86) suit was brought by a number of insurance companies to recover the amount they had paid to the depot company for a fire loss claimed to have been caused by defective wiring. It did not appear, however, that the electric company had anything to do with such wiring or its inspection or had made any agreement to keep the same in proper
Four cases are also chiefly relied on to support the other contention: Maysville Gas Co. v. Thomas’ Adm’r, 25 Ky. Law Rep. 403, 75 S. W. 1129; Lewis’ Adm’r v. Bowling Green Gas Light Co., 135 Ky. 611, 117 S. W. 278; Hebert v. Hudson River Electric Co., 120 N. Y. Supp. 672; and Hoboken, &c., Co. v. United Electric Co., 71 N. J. Law, 430, 58 Atl. 1082. In the first of these cases a boy was killed by coming in con-’
The case of Thomas’ Adm’r was first reported in 25 Ky. Law Rep. 403, 56 S. W. 153, the decision already referred to, 75 S. W. 1129, being practically a reaffirmance of the former one. The Lewis case (135 Ky. 611) was decided by the same court. In the Speers (113 Tenn. 83) and Cronon (166 Fed. 651) cases the doctrine of the Thomas (25 Ky. Law Rep. 403) decision was disapproved. The Fickeisen case (67 W. Va. 335), decided by the West Virginia supreme ■court of appeals, was followed by the case of Perry v. Railway Co., 70 W. Va. 697, 74 S. E. 993, holding that there is no obligation upon a generating company that sells and delivers electricity to a distributing company to see that the lines of the latter company, over which the current is to be carried, are in safe condition. The decision and discussion in the Fickeisen case were ■expressly reaffirmed.
In Sckmeer v. Gas Light Co., 147 N. Y. 529, 42 N. E. 202, 30 L. R. A. 653, it was held that before turning on gas for the benefit of tenants in an apartment house a gas company must use reasonable precaution to ■ascertain that the pipes in the building are in such condition that the gas will not flow out into the apartments of the tenants who have not applied for it, to their injury. The decision was by Peckham, J., and stated the rule to be that the gas company in making the delivery was not an insurer, but simply bound to
“As the company has no control over the piping, •does not put it in, and is not consulted about it, the principle upon which it might be held liable, in cases of this character, at the time of the first delivery of gas, if no precaution were taken at all, is simply that it, would have the right to refuse to turn on, or permit others to turn on, the gas for the supply of the applicants until properly assured of the condition of the piping in other portions of the building. Having become assured of it, and the gas being on, it would not seem that the company ought further to be regarded as liable for the continuous good condition of the piping. Here we may justly say that to impose such a liability upon the defendant would clearly be unreasonable. It would render necessary the examination, at frequent intervals, of all the buildings in the city in which gas was used. This would be so onerous as to be practically impossible of execution, because of the expense to the company. The law ought not to, and does not, exact an unreasonable amount of care from any one. Under the restrictions, however, as above stated, we think the question of defendant’s negligence was for the jury.” (p. 541.)
The jury found that the pole was erected and the wire steps and chain placed thereon according to the plans and specifications of the government of the United States, and had been in place about nine years; that no one' representing the defendant had any actual notice that the wire was caught over the step; that the current had been turned on less than an hour when the ■accident occurred; that the government employed a competent and practical electrician, who stated that inspection was made every two or three months, of
The question of the defendant’s liability is a new one in this state and must be decided in accordance with established principles. Two of these principles are that one shall so use his own as not to injure another, and that the law demands only what is reasonable under the circumstances to avert such injury. The furnishing of electric current to distant places is a necessity of modem civic and industrial life, but it is in strict line with the dictates alike of law, moráis and humanitarianism that one who generates and sells this dangerous agency should use proper care to avoid resulting harm. When such power is simply furnished to a responsible party for use in a system of poles, wires and appliances owned and controlled by such party and in proper condition to receive the current safely, the furnishing party is not required to maintain inspection or to see at its peril that such equipment is kept safe, but so long as not chargeable with knowledge of defect therein it may justly and reasonably assume that such safety will be maintained; justly and reasonably, because the using company is presumed to act in accordance with prudence and safety until the contrary appears. The fact that in furnishing such power for arc lighting the seller undertakes to supply and maintain the necessary lamps and carbons does not change the rule, for such party has the same right as before to assume that the purchaser will act with due care. In order, therefore, to hold the seller liable it must
The jury having found that no one representing the defendant had any actual notice that the wire was caught over the step, and there being no showing that the company had knowledge of the defect which caused the injury, the defendant is not liable.
The judgment is therefore reversed and the cause remanded with directions to enter judgment for the defendant.