212 P.2d 221 | Kan. | 1949
The opinion of the court was delivered by
This was an action to recover damages for death by wrongful act. The defendant’s demurrer to plaintiffs’ second amended petition was sustained, and they have perfected an appeal to this court.
As has been stated the trial court sustained the defendant’s demurrer to the petition. In the journal entry filed there is included the statement of the court in ruling on the demurrer that it was of the opinion that the decision in Hawn v. Kansas Gas & Electric Co., 122 Kan. 395, 252 Pac. 245, was directly in point and decisive of all of the issues tendered by the plaintiffs’ second amended petition, and that the Kansas statutes, as interpreted in that case, clearly prevented plaintiffs’ recovery.
In the Hawn case, supra, this court had before it for consideration the force and effect of Laws 1917, ch. 251, which now appears as G. S. 1935, 17-1914, et seq. In a summary way it may be said the statute provides that no person shall move any house of the height of sixteen or more feet when in position for moving, upon any highway outside the limits of any incorporated city, upon which electric power wires are strung, without first obtaining a permit therefor from the county clerk, and if it shall be necessary to cut, move, raise or interfere with any such wires, the application for the permit shall state the name of the owner of the wires and the time and place when and where the cutting, raising or otherwise interfering with the wires will be necessary; that the county clerk shall give twenty-four hours’ notice to the owner of the wires and it shall be the owner’s duty to furnish competent workmen to cut and raise such wire as will be necessary to facilitate removing of the house, provision for payment of expense being made in the statute. The statute then provides:
“No person engaged in moving any house . . . shall raise, cut, or in any way interfere with any such . . . wires unless the persons . . . owning . . . the same shall refuse so to do after having been notified*297 . . .; then, only competent and experienced workmen or linemen shall be employed in such work . . .”
The statute further makes it an offense for any person engaged in moving a house along the highways outside the limits of an incorporated city “to move, touch, cut, molest or in any way interfere” with any electric power wires except under and in compliance with the provisions of the act, and provides penalties.
In the Hawn case, swpra, the action was by a workman engaged in moving a house down the highway and who was injured by coming in contact with or near to high voltage electric lines alleged to have been negligently maintained, and the appeal arose from a ruling sustaining a demurrer to an answer where it was alleged that the house being moved was within the purview of the above statute, and that no permit had been procured. It is unnecessary that we here review the analysis made of the above statute, the purposes o'f its enactment and results following failure to observe its requirements, reference to that opinion being made therefor. All is reflected in the syllabus of the opinion, which states:
“The statute regulating the moving of houses, buildings, derricks, and other structures, upon or across public highways over which telegraph, telephone, electric light or electric power wires are suspended, was enacted in the interest of the public welfare generally, and was designed in part to prevent loss of life and bodily injury in the adjustment of wires to permit moving structures to pass.
“A house mover, whether employer, or employee, who, without observance of the regulations, undertakes to lift a wire suspended over a highway intersection, to permit a moving building of statutory height to pass, engages in unlawful conduct, and takes the risk of consequential bodily injury.” (Syl. Mil, 2.)
Appellants seek to distinguish the Hawn case, supra, from the case at bar and direct attention to the fact that no permit was procured in the Hawn case, but that one was in this case, and that in the Hawn case the plaintiff attempted to lift the wire while in this case the allegation was that the deceased did not attempt to lift the wire. In our opinion the differences noted do not make the reasoning of the Hawn case inapplicable. While it is true Lear, the employer of Sipult, had procured a permit and in accordance with the statute the city had furnished competent workmen, it is equally true from the allegations of the petition that at the time of the injury to Sipult, the city’s workmen were not present. If it be assumed from their absence that the city refused to furnish competent workmen, then the duty of Sipult allegedly “ignorant and unlearned
Appellants direct our attention to language in Cracraft v. Kansas Power & Light Co., 163 Kan. 285, 181 P. 2d 318, where the issue was the authority of the owner of the wire to demand a cash deposit before the work was done and arose under the same statute now under consideration. In answering a contention that under the statute,' no duty was imposed upon the owner to move its wires, this court said that:
“Indeed, prior to the enactment of the statute the authorities indicate defendant would have had such a duty upon proper notice. (Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778; Logan v. Electric Co., 99 Kan. 381, 161 Pac. 659.)” (l. c. 287.)
Appellants interpret this to mean that regardless of the notice required, the city had a duty to him, and that the statute was “nothing more than cumulative of the law which already existed,” and our attention is directed to decisions in cases decided prior to the enactment of the statute under consideration. We shall not review those decisions for we are of opinion that, as was held in the Hawn case, the statute was enacted in the interest of the public welfare generally and was designed in part to prevent loss of life, and by its express terms not only provided a means whereby the person moving a house down a public highway was relieved from undertaking the risk of cutting, moving or raising an electric power wire, but was specifically prohibited from doing so except as provided in the statute. Appellants’ interpretation of the decision in the Hawn case cannot be sustained. In our opinion, the statute did not create another cause of action, additional to what may here be called actions for common law negligence, but regulated all activities coming within the field of its operation. The allegations of the second amended petition disclose S'ipult, contrary to the statute, moved the
The judgment of the trial court is affirmed.