99 Kan. 381 | Kan. | 1916
Lead Opinion
The opinion of the court was delivered by
The action was to recover damages for injuries sustained in coming in contact with heavily charged and uninsulated wires which defendant maintained across a public liighway. Plaintiff recovered judgment and defendant appeals.
Upon the facts, the case is quite similar to the Wade case against the same defendant (Wade v. Electric Co., 98 Kan. 366, 158 Pac. 28). Wade was killed by coming in contact with high voltage wires of the defendant, while he was engaged in attempting to lift them over the top of a derrick which he was assisting in moving along a public road. His widow recovered a judgment which was affirmed.
The plaintiff in the present case was assisting in moving a frame store building along a public road across which defendant maintained its line of. poles and wires. Two telephone wires and a ground wire which were nineteen feet above the road were suspended from one cross-arm; from another cross-arm were suspended two 33,000 volt wires which were twenty-three feet two inches above the roadway. The store building ■was moved on trucks which brought the highest part of the structure to a height of twenty-one feet three inches. Plaintiff was on the roof of the building attempting to raise, the telephone wires or the ground wire, and in some manner came too near one of the heavily charged wires just above the one lie was handling and received the .shock which caused his injuries. The wires carrying a voltage of 33,000 were uninsulated.
The principles of law, which for the most part control this case, were quité fully considered in the Wade case, supra, and it will be only necessary to review a number of alleged trial errors.
It is complained tffat the court erred in not sustaining a motion for judgment on the findings, because it is insisted the
Defendant places too narrow a construction upon plaintiff’s theory as to the use of the highway. The plaintiff’s evidence as to the use of the highway was not confined to houses, nor to store buildings; it embraced any and all kinds of structures customarily moved along public roads, such as buildings, derricks and other machinery high enough for these wires to interfere with them. The testimony in respect thereto was, of course, not confined to the time since defendant placed its wires across the road. It would hardly do to say that had the accident happened .only a month after defendant first placed its wires there no inquiry could be made as to the ordinary use of the road prior thereto for the purpose of charging defendant with notice of such use. The finding that only one store building had been moved is of no more importance than if the jury had found that only one store building painted the same color as the building in question had been moved. The finding that three houses and only one store building high enough to interfere with the wires had been moved along that road since 1909, when defendant’s wires were first placed there, covers but a part of the facts in evidence, and only a’ part of the circumstances relied upon by plaintiff, to show that defendant, should have anticipated the use of the highway for the purpose of moving such structures.
It is argued, however, that all the evidence shows conclusively that the moving of a building, such as the one in question, was not a common, ordinary use of the highway. “Common, ordinary use” is a relative expression the value of
It may be conceded that there is a difference as regards houses. They are not constructed primarily for the purpose of being moved, while heavy machinery and traction engines are. The use of streets and highways for moving houses is so far extraordinary as to authorize municipalities having control of the highways to provide regulations for such use, prescribing, as ordinances in many cities do, the hours streets may be used for that purpose, and that owners of overhead wires shall first be notified and given an opportunity to raise their wires, and providing for payment of compensation to the owners for the injury or inconvenience suffered. These regulations are upheld, also, because of the inconvenience that might otherwise be suffered by the public through the interference with the business carried on by means of overhead wires. Where no
A number of cases are cited by defendant which hold that the moving of houses on public streets is an extraordinary use of the highway, and that where such use will injure or destroy overhead wires which are lawfully maintained in the streets, injunction will lie at the suit of the owners of the wires to prevent interference therewith. Equity, in most cases, would find little difficulty in moulding its decree so as to permit the structure to be moved at a time and under such conditions as to safeguard the rights of the mover, the convenience of the public and the rights of the owners of the wires. Presumably the decisions are cited because the opinions contain declarations to the effect that the ipoving of a house on roads or streets is an extraordinary use, and the rights of the mover merely temporary and private as opposed to the rights of a public-utility company using the streets by virtue of a city franchise. (Frontier Telephone Co. v. Hepp, 121 N. Y. Supp. 460.) It is sufficient to say that this court in Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778 (approved in Wade v. Electric Co., 98 Kan. 366, 158 Pac. 28) held it to be the duty of an electric-light company having its high-tension wires suspended across a street in a city to anticipate the moving of a building of greater height than the wires in that case were, and to take precautions to protect persons liable to be on such building and liable to be brought in contact with such wires.
There is a contention that it was error to exclude testimony offered to show a rule of defendant that upon notice to it the company would render assistance to persons desiring to move such structures under its wires. There would have been no error in admitting the testimony, but the defendant by the adoption of such a rule could not limit the right to use the highway for a lawful purpose.
One of plaintiff’s witnesses testified that it is impracticable to insulate wires which carry more than 6000 voltage, and we are asked, in view of the general knowledge of that fact, to take judicial notice thereof and to hold that the court should have sustained a demurrer to the evidence. But failure to insulate the wires was not the only negligence charged. It was
“We are never allowed to go below 25 feet and from that on up to 35 and 40 and up as high as -65 feet; we have never been allowed to go below 25 feet with any thing of high tension.”
He further testified that it was customary to construct high-tension wires with a raise where they crossed roads and after crossing to “drop down.”
There is a complaint of the refusal to allow defendant to introduce a model made to show the arrangement of defendant’s poles and wires. The accident, happened across the line in Missouri, beyond the jurisdiction of the court, and for this reason the court was not asked to send the jury to the place of the accident. In almost every one of a large- number of cases cited the court had admitted the model or photograph, and this was held not to be error. In one case cited (De Forge v. New York, &c., Railroad, 178 Mass. 59, which was an action to recover for personal injuries, it was held error to refuse to admit in evidence an X-ray picture showing plaintiff’s physical condition. The weight of authority holds that -the admission of models and photographs rests largely in the trial court’s discretion. A reproduction of the poles and wires in this case was constructed and set up in a room adjoining the courtroom. The judge of the court examined the model and came to the conclusion that it ought not to be admitted in evidence, and sustained plaintiff’s objection. The defendant contends that the model would have served to enable the jury to understand the testimony, and that its purpose was to show the relative position of the wires, the cross-arms, brackets, insulators and other parts of the construction of defendant’s lines where they crossed the highway. All these matters could be and were explained by the evidence of witnesses, and while the admission of the model would not háve been error, we think it can not be said that there was an abuse of discretion in refusing to admit it.
The jury awarded plaintiff damages in the sum of $15,000. It is urged that the amount is excessive and shows prejudice and passion on the part of the jury. At the time of his injury plaintiff was twenty-two years of age, and his usual wages were from $2 to $2.50 a day. The argument is that after allowing $1000 for damages in addition to loss of earning power, the amount remaining, if invested at six per cent, would produce a sum far in excess of plaintiff’s probable earnings in the future. If this were the only consideration the amount would seem excessive; but the nature and the extent of plaintiff’s physical injuries as shown by the evidence must be taken into consideration. The effect of the electric current rendered him unconscious for ten days. A piece of his skull, which the testimony shows was four inches in length and nearly two inches wide, had to be chiseled out, which necessitated six operations, a silver plate being inserted in place of the portion removed. There were burns and scars on his
Other claims relate to the exclusion of testimony which was not produced at the hearing of the motion for a new trial under section 307 of the code. The nature of the testimony, so far as disclosed by the record, satisfies us that there was no error in excluding it.
The judgment is affirmed.
Dissenting Opinion
(dissenting) : I think the amount of the judg-
ment is excessive and that it should be reduced to $10,000. For these reasons I dissent from paragraph 8 of the syllabus and corresponding portions of the opinion.
I am authorized to say that Mr. Justice Burch and Mr. Justice Dawson concur in this dissent.