287 P. 238 | Kan. | 1930
The opinion of the court was delivered by
Plaintiff sued to recover damages for the death of her husband alleged to have been caused by the negligence of defendant! ' The trial court sustained a demurrer to plaintiff’s evidence on the ground, primarily, that the death of plaintiff’s husband resulted from his own negligence. Plaintiff has appealed.
The pertinent facts disclosed by the record may be stated as follows: The city of Norcatur owns and operates an electric- transmission line from Oberlin, where the electricity is generated, to Norcatur. The city of Dresden has a similar line from Oberlin to Dresden, which iyas-built several years after the Norcatur line was constructed. Each of these lines ordinarily carries about 13,200 volts of electric current. At one place where a turn was made in the Dresden line it was so constructed that the wire strung on it nearest to the Norcatur line was thirty-one inches from the nearest wire on the Norcatur line. From this point the lines diverge. ' The city of Norcatur had an engineer, C. W. Craig, whose duties. included that of looking after the cityte electric line and equipment, including this transmission line, and keeping the same in repair, and for that purpose had authority to employ such help as was needed, who worked under his supervision and instruction. Plaintiff and her husband, Louis Sebaugh, lived at Norcatur. Louis Sebaugh
In support of the judgment of the court below it is argued that the city of Norcatur was not negligent in any respect which contributed to the death of Louis Sebaugh. But, since the court did not base its ruling on that .ground, and the determination of the question is not necessary for the decision of the case, we shall pass that point without determining it. We also pass the question whether or not Louis Sebaugh assumed the risk, for it is clear from the evidence that his death resulted from his own negligence. He knew the Dresden line was there, for it was plainly visible, and he and Craig had talked about it that morning, and he was bound to know that to loosen this grounded wire and jerk it would, in all probability, throw the end of it against or across the wires of the Dresden line. The safe way to take down the ground wire was to untie it, climb to the top of the pole on the Norcatur line, and so handle the ground wire that it would not come in touch with the wire on the Dresden line: But Sebaugh did not do that. There is some evidence that he was in a hurry because of threshing he planned to do that afternoon, but whatever the reason was it is clear that his own careless method in releasing and taking down this ground wire was the sole cause of his death. It requires no citation of authorities to establish the fact that under those circumstances plaintiff could not recover.
The judgment of the trial court in sustaining the demurrer to the evidence is affirmed.