94 Kan. 462 | Kan. | 1915
The opinion of the court was delivered by
Florence Estella Wade brought this action against The Empire District Electric Company to recover damages for the death of her husband, John
Plaintiff, basing her action upon the statutory provisions of the state of Missouri, alleged, substantially, that John Wade was by occupation a mover of houses and mining derricks; that on September 17,1913, while engaged in moving a derrick on a highway from a place in Jasper county, Missouri, known as Tan Yard Hollow, to Galena, Kan., he came in contact, with certain uninsulated and heavily charged electric wires owned and operated by the defendant, and was electrocuted;' that the defendant was negligent in not having the wires insulated and in permitting them to.be improperly arranged and hung so low over the highway that a person engaged in a legitimate business and making a proper and common use of the highway would come in contact with them; and that because of this negligence her husband came to his death. She further alleged that the highway was a public one and had been so used for more than five years, and that during that time many derricks, similar to the one with which the deceased was working, had been moved along the highway. Plaintiff also alleged that the derrick, when loaded upon the wagon, was about twenty-one feet high; that the wires of defendant were only about nineteen feet above the ground; that her husband, not knowing that the wires carried a high voltage of electricity and were dangerous, climbed the derrick for the purpose of lifting the w'res no and over it, and while l’fb'ng them he slipped and fell upon the wires, receiving an electric shock which caused his death. Damages in the sum of $10,000 were asked. To plaintiff’s petition the defendant pleaded contributory negligence. On the trial of the case evidence was offered tending to prove that the height of the derrick, as loaded upon the wagon, was about twenty-one feet; that the wires were about
It is here complained that the trial court committed error in sustaining the demurrer to plaintiff’s evidence, in holding as a matter of law that Wade was guilty of contributory negligence. -Electric companies that use the highways and employ so dangerous an agency as electricity for their own private advantage are required to exercise the highest care in constructing and maintaining their poles, wires and appliances so as to avoid injury to those using the highway for work, business or pleasure. (Railway Co. v. Gilbert, 70 Kan. 261, 78 Pac. 807, and cases cited.) In Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778, it was decided that:
“It is the duty of an electric light and power company having wires charged with a high voltage of electricity suspended upon poles across a street in a city, upon which street the moving of a building of greater height than the wires is reasonably to be anticipated, to insulate the wires at such crossing or to take such other precautions as are necessary to protect any person who is liable to be upon such building and to be brought in contact with such wires.” (Syl.)
In that case a recovery was sought for the death of a house mover who came in contact with uninsulated wires that were strung across a street about eighteen or twenty feet from the ground. The house which they were moving along the street was higher than the wires, and the deceased went up on the house to attend to the wire's, and he either seized or fell across the wires, which were charged with 2300 volts, and his death was instantaneous. This court approved an instruction given on the theory stated, and added that the trial court “submitted to the determination of the jury, as a question of fact, whether under all the evidence in the case the defendant was guilty of negligence, and whether the deceased was guilty of contributory negligence, and by its instructions told them that if under all the facts of the case persons were likely to come in contact with
“It would have been but a small item of expense to defendant to have placed its wires high enough above the road to have eliminated all probability of danger to persons traveling on the highway, and, if it neglected this precaution to the injury of a citizen, the courts will not search for technical reasons to protect it from the
The highway in question is in a mining district and the moving of derricks and mining rigs of varying heights along the highway is common. Many of these structures, as well as houses, so moved are more than nineteen feet high, which is approximately the height of the wires in question, and so whether the defendant should have anticipated that a person following his usual and rightful occupation might accidentally or otherwise come in contact with the dangerous wires is a question upon which the parties divide. In a case arising, as did the present one, from a derrick having come in contact with electric wires the court said:
“It was clearly its duty to have used every reasonable precaution to raise and keep its high power transmission wires sufficiently high above ground for the safe passage of such structures as the plaintiff was engaged in moving at the time and at the place he was injured. Such structures were common to that locality. It was not of unusual height and its passage along the highway and over the bridge was to be expected at any time.” (Shank v. Great Shoshone & Twin Falls Water Power Co., 205 Fed. 833, 837, 124 C. C. A. 35.)
In Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778, it was said that:
“If from all the circumstances the defendant .had reason to apprehend that the building would be moved under the wires where the accident occurred, it was its duty, knowing its wires to be highly charged with electricity, to have such wires at the street crossing insulated, or to take such other precautions as might be necessary to protect anyone who might be likely to be upon such. building from contact with or injury from such wires.” (p. 73.)
It is said to be practicable to place these dangerous wires at such a height as would allow the passage of derricks and like structures and that many of the high-voltage wires have been so placed. In view of
Although the negligence of defendant is discussed at 'considerable length by counsel for both parties the trial court appears to have held that the evidence produced made a prima facie case of negligence against the defendant. -Its written opinion, which is included in the abstract, proceeds upon the theory that there was some evidence to sustain the charge that the defendant was negligent but that a recovery could not be had because plaintiff’s testimony showed that Wade was himself guilty of negligence. The court said:
“In this case when the deceased moved up there he must have seen that the wires had been insulated; that they were bare in a great many places. This instead
On the evidence can it be said as a matter of law that Wade was guilty of contributory negligence? If the facts are not in dispute and but one inference can be drawn from them the question of deceased’s negligence can be decided by the court. If the facts are disputed the negligence is a question of fact for the jury, and even if the facts are undisputed, but different inferences may be drawn from-them the deceased’s negligence is still a question for the jury and not for the court. If the question whether Wade acted as a reasonably prudent man would under the circumstances in handling the wires in the effort to move the derrick along the highway is one on which reasonable minds might differ it should have been submitted to the jury under appropriate instructions. (K. P. Rly. Co. v. Pointer, 14 Kan. 37; Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514, 43 Pac. 1136; Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621.) If Wade knew or was chargeable with knowledge that the wires were carrying a deadly or dangerous current of electricity and deliberately took hold of them he would be regarded as negligent and must take the consequences of his negligence. In support of the ruling of the court it is urged that Wade had been engaged in moving houses and derricks in that vicinity for more than twelve years, where defendant had many light and power wires strung along and over the streets and highways of the district and was necessarily familiar with its system. It is said that Wade had an opportunity to know that many of the wires in the district carried dangerous currents, and also that he must have observed the difference between telephone and power
The fact that one of the four wires had at some time been covered and the insulation had mostly worn off was, in a sense, a warning of danger to one who observed it, but it appears that the wire which had once been insulated was lifted by Wade without injury.
It is contended and there is some basis for the inference that the wires could have been safely lifted if one had not been brought in contact with another, and that the bringing of the wires in contact, or the making of a short circuit, was an accident, but the decision upon the question of contributory negligence is placed on the broad ground that the case comes within the rule often stated that where the evidence is such that different minds may draw different inferences as to the reasonableness and care of the conduct of a person the court can not take the case from the jury and determine, as a matter of law, that the person was negligent.
The judgment of the district court will therefore be reversed and the cause remanded for a- new trial.