101 Kan. 388 | Kan. | 1917
The opinion of the court was delivered by
The plaintiff, as administratrix of the estate of her husband, sues to recover damages for his death caused by coming in contact with a high-tension wire in one of the stations of the defendant. The Union Traction Company oper
It was his custom to take the interurban car from Coffeyville
On Friday, March 20, 1914, when, he returned to take the train for home he sat down on the bench in front of the transformers, and a few minutes later Mrs. Myers discovered him lying on the floor between the two transformers that stood nearest the west wall, with his head to the west. She testified that in a couple of minutes he got up and sat on the bench until the car arrived, when he left for home. Mrs. Myers also testified that two or three days previous to this occurrence she had a conversation with the deceased in which she- told him the voltage carried by the current on the high-tension wires and showed him where these high-tension wires came down the wall and entered the transformers. Her testimony is that the next day, Saturday, March 21, 1914, Mr. Patton came out on the interurban car, got off at the station and crossed the tracks, walked out in the public highway toward Jefferson, and then returned to the station for some purpose. He walked up to the ticket counter where Mrs. Myers stood and gave her a newspaper, and they had some conversation. He then laid his overcoat on the bench, walked around the end of the bench, put his hand on the middle transformer and stooped over as if to get a rubber overshoe that evidently had fallen from his foot the day before. The rubber lay under the north end of the middle transformer. Without taking it up he rose, stepped across the ditch, walked down between the west and the middle transformers until he came in contact with the high-tension wire behind the transformers. There was a flash, his head went back and then down, and he fell behind the transformers. The power was turned off, physicians were called, but it was found that life was extinct.,
It was charged in the petition that defendant was negligent in maintaining in its waiting room uninsulated wires carrying such a high and dangerous voltage, and in failing to exercise the highest degree of care and caution to prevent people lawfully in the waiting room from coming in contact with them. The answer was a general denial, with a plea of contributory negligence. The jury returned a verdict for the
The first complaint of error is that incompetent testimony was admitted. Mrs. Myers was called as a witness for the plaintiff, and on cross-examination she was asked if she ever had any talk with the deceased concerning the high-tension wires. She answered that she had, and was asked what was said in the conversation concerning the wires. Over the objection of the plaintiff the court permitted her to relate the conversation with the deceased concerning the íocation and dangerous character of the wires and the high voltage carried on them. It is claimed that this was not proper cross-examination. However, if the objection had been sustained, the defendant, by making Mrs. Myers its witness, could have secured the same testimony at the same time in the progress of the trial. No leading questions were asked, and there is no force in the claim that prejudice could have resulted from permitting her to answer the questions on cross-examination.
Complaint is made of an instruction stating the rule to be that if the deceased “failed on his part to exercise ordinary care, or, in other words, was guilty of contributory negligence in the premises, and thereby contributed to his own death, then the plaintiff can not recover.” It is insisted the instruction should have stated that “if the deceased voluntarily or of his own free will failed to exercise ordinary care.” The instruction stated the rule correctly. It was for the jury to determine, under all the circumstances shown in the evidence, whether or not the deceased was in the exercise of ordinary care at the time of the accident.
There is a complaint that the court refused to give a number of requested instructions, particularly instructions Nos. 7 and TO, which merely stated in other language the same rule of law aptly stated by the court in the instructions given, that “if the use of electricity by the defendant in the prosecution of its business at the place where the injury occurred is shown by the evidence to be a highly dangerous agency to life unless exercised with great care, then to such extent the highest degree of care in its supervision, management and use was required of the defendant at places where people had a right to go, and had been in the habit of going and would likely continue
The jury answered the following special questions submitted at the request of plaintiff:
“Do you find from the testimony that the defendant in any manner guarded or protected the high-tension wires in its station at Jefferson? Answer. No.
“Do you find from the testimony ■ that the high-tension wires could have been protected by running guard rails or lattice work from east to west immediately north of the transformers? Answer. Yes.
“Do you find from the testimony that there was anything to prevent, the defendant from safeguarding and protecting the high-tension wires by running a railing, lattice work, or other devices from east to west immediately in front of said transformers? Answer. No.
“Do you find from the testimony that at and in its station and waiting-room at Jefferson on the 21st day of March, 1914, and for a number of months prior thereto, the defendant kept for sale and sold chewing gum, peanuts and other similar articles? Answer. Yes.
“Do you find from the testimony that there wfis any sign or warning of danger kept or placed at or near the said high-tension wires? Answer. No.
“Do you find from the testimony that the sign ‘Danger, be careful,’ which was placed in front of the switch-board located in the east part of the waiting-room was a distance of about from 12 to 14 feet from the high-tension wires with which deceased came in contact? Answer. Yes.”
Special questions submitted at the request of defendant were answered as follows:
“Did M. A. E. Patton, deceased, and Mrs. Myers, have a conversation in the substation at Jefferson, Kansas, just a few days before the accident on March 21st, 1914, concerning the high-tension wires, connected with the transformers? Answer. Yes.
“Did Mrs. Myers during said conversation, inform Mr. Patton that said wires were charged with 22,000 volts of electricity?' Answer. Yes.
“Did M. A. E. Patton on March 20th, 1914, preceding the day of his death, while between the same transformers, receive a severe shock of electricity? Answer. No.
“Was M. A. E. Patton, on March 21st, 1914, and at the time of the accident, in full control of his powers of locomotion? Answer. No.
“Was the deceased, M. A. E. Patton, in full possession of all his mental faculties, unimpaired, on March 21st, 1914, and at and immediately prior to the accident on that date? Answer. Yes.”
The plaintiff filed a motion for a new trial, and argues that because of the special finding that the deceased.was not in full
We are unable to discover any errors in the admission of evidence, in the giving or refusing of instructions, nor in denying a new trial. The judgment is affirmed.