Washburn v. Laclede Gas Light Co.

214 S.W. 410 | Mo. Ct. App. | 1919

Lead Opinion

OPINION. (After stating the facts as above). — Learned counsel for appellants earnestly insist that, it appearing that Washburn did not have his rubber gloves on while standing with his hands resting as described, plaintiff could not recover. Those counsel further insist that the case at bar falls within the decisions of our Supreme Court in Junior v. Missouri Electric Light Power Co., 127 Mo. 79, 29 S.W. 988, as well as Biddlecom v. Nelson Grain Co., not officially reported but see 178 S.W. 750, and cases in other jurisdictions in line with those decisions. We do not think that the facts here fall within either of the cases decided by our Supreme Court. While it is true that the Laclede Company, defendant here, had provided these gloves, which, it is urged, when in use, afforded perfect protection against a current as high as 5000 volts, for use when working with wires, it does not appear that at the immediate time of this occurrence, Washburn was doing anything that required him to put them on. We do not understand that, even by the instructions or directions or rules and regulations of the Laclede Company, it was necessary for him to have them on at all times while engaged in his work, if he was not, at the time — and the instant of time, as we may say — engaged in handling wires over which a current was passing or might, in the exigencies of the situation, be excepted to pass. From the evidence it appears that at the particular time when he was injured, he was not handling any wire, or doing anything that required him to have his gloves on. He had evidently taken them off for temporary relief, at a time and under circumstances when he had no occasion to apprehend danger. So the jury evidently found under the instructions which were given to them as to the requirement of wearing these gloves.

In the Junior case, supra, the man was at the very time handling and putting together two wires from the ends of which he was joining together, the insulation had been scraped off. They were naked copper wires and he was doing the very thing which, at that time, under the regulations of the company, required the use of rubber gloves.

In the Biddlecom case, supra, a demurrer was sustained at the close of plaintiff's case. From a refusal of the trial court to change its ruling, plaintiff appealed, but the Supreme Court sustained the action of the trial court. There the employee was instructed to use a pole — a wooden pole with an iron hook at the end — when opening and closing the disconnecting switches of the motor. It appeared that he had undertaken to do that with his naked hands and without using this pole. In consequence his naked hands came in contact with a current of electricity passing through the motor and to the switches and so he came to his death. These were the facts on which the Supreme Court affirmed the action of the lower court.

We have no question but that under the facts in evidence, which, as before said, are the facts as set out in the petition and covered by the instructions, the verdict against the defendant Laclede Gas Light Company was correct, and the judgment, as far as that company is concerned, must be sustained.

II. We come next to the question as to the liability of the other defendant, Union Electric Light Power Company. As has been tersely stated in Fishburn v. Railway Co., 128 Iowa, l.c. 492: "The liability of a person charged with negligence does not depend on the question whether with the exercise of reasonable prudence, he could or ought to have foreseen the very injury complained of; but he may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission." Quoted with approval in Dean v. Railway Co.,199 Mo. l.c. 411, 97 S.W. 910; Buckner v. Horse Mule Co.,221 Mo. l.c. 710 120 S.W. 766. [See, also, Harrison v. Light Co., 195 Mo. l.c. 629, 93 S.W. 951; Hoepper v. Southern Hotel Co.,142 Mo. 378, 44 S.W. 257.]

"The test is whether the party guilty of the first act or omission might reasonably have anticipated the intervening cause as a natural and probable consequence of his own negligence, and if so, the connection is not broken; but if the act of the third person which is the immediate cause of the injury is such as in the exercise of reasonable diligence would not be anticipated and the third person is not under the control of the one guilty of the first act or omission, the connection is broken and the first act or omission is not the proximate cause of the injury." [Seith v. Commonwealth Electric Co., 241 Ill. 252.]

"An injury that results from an act of negligence, but that could not have been foreseen or reasonably anticipated as its probable consequence or that would not have resulted from it had not the interposition of some new and independent cause interrupted the natural sequence of events, turned aside their course, and produced it, is not actionable. Such an act of negligence is the remote, and the independent intervening cause is the proximate cause of the injury. A natural consequence of an act is the consequence which ordinarily follows it — the result which may be reasonably anticipated from it." [Cole v. German Savings Loan Co., 124 F. 114.]

Under the facts in this case the defendant, Union Electric Light Power Company, maintained a wire through which from dusk until dawn, a current of electricity of 220 volts was carried, but at the time that plaintiff met with his injuries such wire carried no current whatever. A wire belonging to the other defendant, Laclede Gas Light Company, and carrying an electrical current of high potentiality, namely, 2300 volts, was suspended upon the same pole, however upon another cross-arm So far as this record goes no showing is made that the insulation on the wire of the Laclede Gas Light Company, carrying the 2300 volts of electrical current, was in such condition at the time of the accident that anyone coming in contact with it and with the wire of the Union Electric Company, at the point where its insulation had worn off, would have thereby been injured; but it affirmatively appears that the wire carrying the high potential current of the Laclede Gas Light Company was cut through down to the copper wire by an iron hook attached to an iron block while being used by its employees in putting in a new cross-arm, thus allowing the electricity to escape into the iron hook and thence into the iron block attached to it, and that the plaintiff, at the moment the wire was loosened from the pole, in endeavoring either to save himself from coming in contact with the wire, or from falling from the pole, threw out his arms, one hand coming in contract with the iron block charged with escaping electricity, and the other hand coming in contact with the defendant's Union Electric Light Power Company's wire at the place where the insulation was defective and a short circuit was formed and plaintiff was killed.

Should the injury to plaintiff's decedent be held to be a natural and probable consequence of the act of the Union Electric Light Power Company in allowing the insulation on its buzz wire to become defective? We think not. Defendant under the rule we have above outlined, should be held liable for the natural and probable result of its negligence when such act is the proximate cause of an injury, but defendant should not be held liable for an injury which could not have been foreseen nor reasonably anticipated as a natural or probable result of the act of negligence complained of on the part of the said defendant.

As we construe the facts as they appear in the record before us, there was an independent intervening cause which was the proximate cause of the injury and such intervening act one that could not reasonably have been foreseen or anticipated as a natural or probable result of said defendant's alleged original negligence. The independent intervening cause which we hold was the proximate cause of the injury, was the negligent act of the defendant, Laclede Gas Light Company, in the use of an instrumentality in such a manner as to cut through the insulation of its wire down to the copper wire itself, and thus permit an escape of electrical current from such wire, with the result stated above.

Our conclusion is that under the facts and circumstances of this case, as they appear from the record before us, in light of the law applicable thereto as we have outlined above, the learned trial judge should have given the instruction in the nature of a demurrer requested by the defendant, Union Electric Light Power Company, at the close of the case. It follows and it is hereby ordered that the judgment as to the defendant, Laclede Gas Light Company, be affirmed, and that the judgment as to the defendant, Union Electric Light Power Company, be reversed.

Allen J., concurs; Reynolds, P.J., dissents as to the reversal of the judgment against the Union Electric Light Power Company in a separate opinion filed, deeming so much of the opinion as reverses the judgment as to the Union Electric Light Power Company contrary to decisions of the Supreme Court in Brash v. City of St. Louis, 161 Mo. 433, 61 S.W. 808, and other cases cited in memorandum filed by him, the cause, together with all the files therein, is certified to the Supreme Court.

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Dissenting Opinion

DISSENTING OPINION. While I concur in affirming the judgment as to the Laclede Gas Light Company, I do not concur in reversing it as to the Union Electric Light Power Company.

It is true the situation is different as to Washburn's relation to the two companies. Washburn and his associates were not in the employ of the Electric Company, or doing any work for it, but they were at work on a pole upon which that company had strung its wires. It is in evidence that the Electric Company's wire, which was called the buzz wire, and ran along one of these arms, usually carried not more than 220 volts of current and then only after dark, and that on this occasion, during the daytime, there was no current on it. Nevertheless, it appears that the covering on it, the material used for insulation, was defective and ragged, not completely insulating this wire. So the real question is, was the Union Electric Light Power Company responsible for leaving a wire in this condition on this pole? While not carrying an electric current, it was there, and when the covering was off or the insulation defective, that wire was apt to carry any electric current which might, by any chance, be communicated to it from the outside, if connection was made between it and another wire carrying electricity, as in the case at bar, was the wire of the Laclede Company. The Union Electric Company knew that these wires were being carried on this pole by the Laclede Company; in fact, it appears that the pole belonged to the Laclede Company and that the user of it at all by the Union Electric Company was under arrangement between it and the Lacelede Company. It knew that the linemen of the Laclede Company might be working among these wires at any and all times.

When putting and maintaining this buzz wire along the arm attached to the pole that was used in common with the Laclede Company, it was the duty of the Electric Company to consider, in the interest of the safety of those whom it knew would be working on this pole and about the wires of the Laclede Company, carrying a dangerous current, the possibility that the linemen working with the Laclede Company wires, would be liable to come in contact with it, and that this defectively covered wire might become highly charged with electricity if connection was made between it and wires that did carry a heavy voltage. In the light of that possibility and of the great degree of care required of those using the deadly element that we know as electricity, I hold that it was the duty of the Union Electric Company to use due precaution to prevent possible accident by not leaving a defectively protected wire in this position and among these surroundings, and to keep all its wires in a safe condition. The law requires the utmost care on the part of those in charge to keep in place a properly protected wire. [Giesmann v. Missouri-Edison Electric Co., 173 Mo. 678, 73 S.W. 654; Von Treba v. Laclede Gas Light Co., 209 Mo. 648, 108 S.W. 559; Campbell v. United Railways, 243 Mo. 141, l.c. 152,147 S.W. 788.] In the latter case it is said at the same page; "Negligence is the failure to exercise the degree of care which prudence required under the circumstances of each particular case." I think, that under the authorities, the Union Electric Light Power Company was chargeable with the knowledge of the fact that men would be on these poles working around these wires, and that to maintain a defectively covered, imperfectly insulated wire, was to invite danger. In point of fact, it has been held by our Supreme Court in Von Treba v. Laclede Gas Light Co., supra, that it was not necessary for the plaintiff to prove, as a part of her prima-facie case, that the insulation was off of the wire of the Union Electric Light Power Company, if it appeared that the injuries to the lineman (Washburn), or his death, were caused by his coming in contact with the wire, it being conclusively proven that the insulation was defective.

We speak here of the wire of the Electric Company, the "buzz wire," as it is called, being imperfectly insulated, of course implying that it was possible to have it insulated to the extent of preventing accident from immediate contact with the wire, and we say this in spite of the fact that the superintendent of construction of the defendant Laclede Company testified that "insulation does not insulate." To quote that witness, he says, after making the above rather remarkable statement:

"It is just a wrong term that is used. It is really only a covering of the wires. It is not really insulation. It is put on mainly for insulation, but it has come to be a common expression, insulation. There is practically no insulation for high tension wires."

Yet this same witness testifies, and in fact the defense of both appellants rests on the claim, that defendant, Laclede Gas Light Company, had furnished each of its men, including Washburn, with a pair of rubber gloves that afforded perfect protection up to 5000 volts. The testimony that there is no such thing as insulation, is somewhat of the character described by Judge WOODSON, in Hill v. Union Electric Light Power Co., 260 Mo. 43, l.c. 81, 169 S.W. 345, of which he says:

"It does not arise to the height of respectable nonsense to contend that science can and has so insulated the hand as to make it safe for one to handle a wire of high voltage, and then, in the next breath, insist that science has not and cannot insulate a similar wire with a similar substance with like results."

That learned judge further adds, that the contention that no insulation can be put on wires, "is in direct conflict with common observation and is disproved by common knowledge. If it was not for the perfect insulation of wires carrying high voltage or for some other equally protective system such as are thrown about trolley wires, how long would any or all of the great cities of this and other countries exist? I dare say that should all insulation be removed from all such wires but few of such cities would survive the night."

The pole, as far as its use was concerned, was a pole used both by the Laclede Company and the Union Electric Company in common, so that each company owed the same duty to the employees of the other company that it did to its own, so far as concerns its duty with reference to the condition of the wires owned by each.

In Newcomb v. New York Central Hudson River R.R. Co.,169 Mo. 409, 69 S.W. 348, it is said (l.c. 422):

"A defendant may be liable even if the accident was not caused by his sole negligence. He is liable if his negligence concurred with that of another, or with the act of God or with an inanimate cause, and became a part of the direct and proximate cause although not the sole cause."

In Harrison v. Kansas City Electric Light Co., 195 Mo. 606, l.c. 623, 93 S.W. 951, it is said:

"The law is well settled in this State that the doctrine of comparative negligence does not obtain in this State. The doctrine of concurrent negligence is firmly rooted in the jurisprudence of this State."

Following this the case of Newcomb v. New York Central Hudson River R.R. Co., supra, is cited and quoted from as above. The case of Brash v. City of St. Louis, 161 Mo. 433, l.c. 437,61 S.W. 808, is also cited and the quotation then made from 1 Shearman Redfield on Negligence (5 Ed.-, sec. 39 (6 Ed.), sec. 39, is approved, to the effect that.

"It is universally agreed that, if the damage is caused by the concurring force of the defendant's negligence and some other cause for which he is not responsible, including `the act of God' or superior human force directly intervening, the defendant is nevertheless responsible, if his negligence is one of the proximate causes of the damage, within the definition already given. It is also agreed that, if the negligence of the defendant concurs with the other cause of the injury, in point of time and place, or otherwise so directly contributes to the plaintiff's damage that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable notwithstanding he may not have anticipated or been bound to anticipate the interference of the superior force which concurring with his own negligence, produced the damage."

This is peculiarly applicable here, in that the negligence of the defendant Union Electric Company in having an insufficiently insulated wire on this pole, did concur with the other cause of the injury in point of time and place, in that, carrying a heavy current through the wire of the Leclede Company, over which a heavy voltage was at the time passing, the current passed through the body of Washburn and resulted in his death, one of his hands coming in contact with the defectively insulated wire of the Union Electric Light Power Company, the other with the iron pulley and its tackle, the hook of which had cut through the insulation of the highly charged copper wire of the Laclede Company. [See, also, Buckner v. Stockyards Horse Mule Co.,221 Mo. 700, 120 S.W. 766, where, at page 711, Harrison v. Kansas City Electric Light Co., supra, is quoted approvingly on this point.]

I do not think that the fact that this accident was directly caused by the cutting through of the soft covering of the Laclede Company's wire by an iron hook attached to an iron block, makes any difference here in the liability of the Union Electric. It is true this was a happening the Union Electric Company possibly could not have anticipated. But it did know that the wires of the Laclede Company carried a high and dangerous voltage; that employees of that company were required to work in and among those wires and its own wires, and it was its duty to protect its wires from any and all danger of contact, no matter how made, with the Laclede Company's wires. It seems clear to me that this accident happened by Washburn, through his body, making a conduit from the Laclede to the Union Electric wire, and if the latter had been properly insulated, the accident would not have occurred.

In this view of the law, I think it clear that the Union Electric Light Power Company is jointly liable for the result of this happening.