123 Kan. 104 | Kan. | 1927
Lead Opinion
The opinion of the court was delivered by
The plaintiffs, corporations, sued to recover from the defendants damages caused by a fire alleged to have been brought about by their negligence. Judgment was rendered in favor of each of the defendants on its demurrer to the evidence of the plaintiffs, who appeal.
The Lenfestey Broom Works owned a quantity of broom corn which was stored in a building situated at 416 South Commerce street, in the city of Wichita. The Hudson Insurance Company issued a policy of fire insurance to the Lenfestey Broom Works insuring the broom corn against loss or damage by fire. The policy provided for the subrogation of the Hudson Insurance Company to the rights of the Lenfestey Broom Works on account of any loss which the insurance company might be compelled to pay to the broom works. A loss by fire occurred, that loss was paid by the insurance company, and this action was commenced by the plaintiffs to recover for that company.
The plaintiffs alleged that the railway company had erected a crane to be used in loading and unloading freight from cars on its tracks; that the defendants and each of them were guilty of negligence in placing high voltage electric wires running to the transformers in such close proximity to low voltage wires running from the transformers as to make possible the escape of electrical current from the high voltage wires to the low voltage wires; and that they were negligent in so unloading a piece of sheet steel as to permit it to come in contact with the electrical wires and thereby make a contact between the high-tension wires and the low-tension wires and cause a high-voltage current to be communicated to the wires leading to the building at 416 South Commerce street, causing the fire which burned and damaged the broom corn.
The evidence tended to show that upon a pole not far from 416 South Commerce street and near the defendant railway company’s railroad track, the defendant electric company had placed three
Concerning what occurred at 416 South Commerce street, there was evidence which tended to show that at about the time of the occurrence at the crane, there was a flash of fire in the building which came out of the meter box; that there was an explosion in the fuse box; that the fuse box was in good repair before the explosion; that after the explosion it was torn from its fastenings; that it was connected with a ground wire which led to a pipe in the floor; and
The city electrician testified that after the fire he found broken insulators and a broken fuse box under the transformer pole near the Santa Fe crane; that he found the insulation scraped off one of the vertical wires on the pole near the crane; that another vertical wire had been recently spliced; that one of the damaged wires was a high-tension wire and the other a low-tension wire; that contact had evidently been made between these two wires; that the fuse box at 416 South Commerce street showed indications of high •voltage; that it was excessive voltage which caused the fire; and that the closeness of the vent pipe to the conduit contributed materially in causing the fire.
There was evidence which tended to prove that the fire would not have occurred but for the defective electrical wiring and equipment in the building at 416 South Commerce street.
1. The Kansas Gas and Electric Company and S'. M. Wible were actively engaged in their separate operations at the time of the fire. The property of the Atchison, Topeka & Santa Fe Railway Company was being used by S. M. Wible at that time. .The property of the railway company and the electricity from the electric company were being used by S'. M. Wible in unloading the steel plate. The crane, the electricity, and the electrical appliances then being used by him were under his control. He was not under the control of either the railway company or the electric company.
In Luengene v. Powder Co., 86 Kan. 866, 876, 122 Pac. 1032, the court said:
“ ‘Where two or .more parties, by their concurrent wrongdoing, cause injury to a third person, they are jointly and severally liable.’ (Kansas City v. Slangstorm, 53 Kan. 431, syl. ¶ 2, 36 Pac. 706; Kansas City v. File, 60 Kan. 157, 55 Pac. 877; Arnold v. Milling Co., ante, p. 12, 119 Pac. 373; McKenna v. Gas Co., 198 Pa. St. 31, 47 Atl. 990; Louisville v. Schneider, 143 Ky. 171, 136 S. W. 212, 35 L. R. A., n.s., 207; Note, 29 L. R. A. 356; Note, 32 L. R. A., n.s., 809; 1 Thompson, Com. on the Law of Neg. §75.)”
To the same effect is Wholesale Grocery Co. v. Kansas City, 115 Kan. 589, 593, 224 Pac. 47, which cites a number of cases.
It takes joint or concurrent action to make joint liability. It follows that if any one of the defendants was not negligent and did not concur in any negligence of either of the others, that defendant is not liable.
In Bowers v. Mildren, 107 Kan. 584, 193 Pac. 318, it was said that—
“In an action for damages, the question whether the injured plaintiff was guilty of contributory negligence is ordinarily one to be determined by the jury in view of all the evidence, and cannot be disposed of by a demurrer.” (Syl. ¶1. See, also, Kansas City, Ft. S. & G. R. Co. v. Owen, 25 Kan. 419; Missouri Pac. Ry. Co. v. Kincaid, 29 Kan. 654, 656; St. L. & S. F. Rly. Co. v. Richardson, 47 Kan. 517, 521, 28 Pac. 183; Eidson v. Railway Co., 85 Kan. 329, 116 Pac. 485; Bennett v. Bank, 100 Kan. 90, 163 Pac. 625.)
The facts established by the evidence were not such that the court can say they of themselves constituted such contributory negligence as prevents a recovery. The demurrer could not have been properly sustained on the ground of contributory negligence.
3. Was the evidence sufficient to prove a cause of action against the Atchison, Topeka & Santa Fe Railway Company? It erected the crane for the use of its patrons in loading and unloading heavy freight. The railway company had nothing to do with the electrical wiring or appliances. It did not operate the crane, but furnished a competent man to operate it for those who desired to use it. The man thus furnished controlled the application and release of electrical power and worked under the direction of those who were using the crane in loading or unloading freight. The crane wag being used in this manner at the time of the fire, of which the plaintiffs complain. There was no evidence which tended to prove that the crane had been defectively constructed; that the railway company was negligent; or that it concurred in the negligence of either of the other two defendants in the construction or placing of the electric wires, poles, or appliances, or in the manner in which the crane was operated. The demurrer of the railway company to the evidence of the plaintiffs was properly sustained.
4. The petition alleged that the wires and other electrical appliances had been defectively constructed and placed. The evidence tended to show that the placing of the wires and of the other electrical appliances by which electricity was transmitted to the crane was under the control of the electric company. There was evidence from which the jury might have found that the wiring had
The petition alleged that the steel plate was unloaded in a negligent manner in that it was not prevented from striking the electric wires during the process of unloading. The evidence tended to show that the plate struck the wires and thereby caused the fire. The evidence also tended to prove that no effort was made to guide or control the steel plate during the process of unloading. S. M. Wible did the unloading and controlled it. He is responsible for any negligence that occurred in unloading the steel plate. From that evidence, the jury could have concluded that it was his negligence in not guiding or controlling the steel plate while unloading it that caused the fire. That evidence should have been submitted to the jury. It was error to sustain Wible’s demurrer to the evidence of the plaintiffs.
The judgment is affirmed as to the Atchison, Topeka & Santa Fe Railway Company, and is reversed as to the Kansas Gas and Electric Company and S. M. Wible, and'a new trial is directed as to them.
Dissenting Opinion
dissents from the judgment of reversal as to the Kansas Gas and Electric Company, on the ground maintenance of its appliances merely furnished conditions under which the injury occurred, the legal cause of which was the negligent conduct of Wible.