ÆäÀÌÁö À̹ÌÁö
PDF
ePub

position, but the insulation had worn off, is not conclusive evidence of the fact. Expert witopinion as to facts and conditions. The jury denesses determine nothing. They testify to their termine what are the facts.

[Ed. Note.-For other cases, Cent. Dig. § 2395; Dec. Dig.

see Evidence, 571(3).]

5. TRIAL 296(3) ACTION FOR CAUSING DEATH-INSTRUCTIONS.

that he should have the land; that he was placed in possession of it and made valuable improvements. These allegations were sufficient to constitute a cause of action on the theory of a part performance of the oral contract (note, 39 L. R. A. [N. S.] 928; 39 Cyc. 52), and the plaintiff's testimony had some tendency to support each of them. Other assignments of error on the part of the defend-that if under certain conditions stated defendAn instruction which in substance charged ant are either covered by what has already ant should reasonably have anticipated that been said, or in view of the granting of the persons using a public highway might come in new trial do not require to be passed on. contact with its electric wires, and it failed to use the highest degree of care to insulate the The judgment is affirmed. All the Justices same, it was negligent, is held not to impose concurring. too high a duty upon the defendant, when considered with other instructions which charged that it was the duty of the defendant to keep its wires insulated, "or if not insulated, to keep

(98 Kan. 366)

WADE V. EMPIRE DIST. ELECTRIC CO. them in a position and location out of reach of

* (No. 20243.) *

(Supreme Court of Kansas. June 10, 1916.)

(Syllabus by the Court.)

1. ELECTRICITY ~19(2)—INJURIES — PLEADING VARIANCE-MATERIALITY

In an action to recover for the death of one who was killed by coming in contact with heavily charged electrical wires of the defendant which crossed a public highway, the petition alleged that deceased, who was moving a derrick along the highway, climbed on the derrick in order to lift the wires, and that while so engaged he slipped and fell upon and thus came in contact with the wire which caused his death. There was no evidence to show that he slipped or fell; the witnesses, who stood upon the ground 20 feet below, thought he had lifted one wire and was on his knees attempting to lift another when they heard him groan and discovered that he was unconscious. Held, the slight variance between the proof and the allegation of the petition was not fatal, and it might have been covered by an amendment to the petition, even after judgment, to conform to the proof.

[Ed. Note.-For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. 19(2).] 2. APPEAL AND ERROR 1099(3)-REVIEWSUCCESSIVE APPEALS-LAW OF THE CASE.

The law, as declared when the case was here before (Wade v. Electric Co., 94 Kan. 462, 147 Pac. 63), is held to be the law of the case upon the second trial, the facts being substantially the same, and it is held, therefore, that the deceased was not as a matter of law guilty of contributory negligence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4372; Dec. Dig. 1099 (3).]

3. APPEAL AND ERROR PRESUMPTIONS.

933(5)-REVIEW

Where a jury by their special findings indicate that they have discredited the uncontradicted testimony of witnesses, the trial court may either set aside the finding or may consider the fact in determining whether the verdict is the result of such prejudice or passion as to warrant a new trial; but where the ver: dict has been approved by the trial court, it will be assumed that the court did not regard the conduct of the jury as evidence of such passion or prejudice as would warrant a new trial. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3772; Dec. Dig. 933(5).] 4. EVIDENCE 571(3)-EXPERT TESTIMONYWEIGHT AND EFFECT.

The testimony of expert witnesses that it is not good practice to insulate electric wires carrying over 2,500 volts which cross a public highway on poles 20 feet high, where it is conceded that the wires were insulated when first placed in

all the common and ordinary traffic and travel." [Ed. Note.-For other cases, see Trial, Cent. Dig. 709; Dec. Dig. 296(3).]

6. TRIAL 191(7)-INSTRUCTIONS-PROVINCE OF COURT AND JURY-ASSUMPTIONS AS TO FACTS.

Other instructions considered, and held not to be objectionable on the ground that they assume the existence of controverted facts.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 430; Dec. Dig. 191(7).]

7. ELECTRICITY 14(2)-ACTION FOR CAUSING DEATH-INSTRUCTIONS.

A requested instruction that deceased was a trespasser or at least a mere licensee of defendant when he undertook to move the wires and enable the derrick to pass under them was rightly refused.

[Ed. Note. For other cases, see Electricity, Cent. Dig. § 7; Dec. Dig. 14(2).]

8. TRIAL 251(8) ACTION FOR CAUSING DEATH-INSTRUCTIONS.

Other instructions requested by the defendant considered, and held properly refused. [Ed. Note. For other cases, see Trial, Cent. Dig. 593; Dec. Dig. 251(8).]

9. ELECTRICITY 19(13)-ACTION FOR CausING DEATH-VERDICT AND FINDING.

The fact that deceased could have moved the derrick under the wire by lowering and hauling the derrick in a horizontal position was a fact for the jury to consider in determining whether under all the circumstances he was guilty of contributory negligence; but a special finding that he could have escaped injury by adopting the safe way did not authorize the court to render judgment on the finding in favor of defendant on the ground that as a matter of law the deceased was guilty of contributory negligence.

Cent. Dig. § 11; Dec. Dig. 19(13).]
[Ed. Note.-For other cases, see Electricity,
Porter and Dawson, JJ., dissenting.

Appeal from District Court, Cherokee
County.

Action by Florence Estella Wade against the Empire District Electric Company. From a judgment for plaintiff, defendant appeals. Affirmed.

A. E. Spencer, of Joplin, Mo., and Sapp & Wilson, of Galena, for appellant. H. J. Smith, of Argentine, H. C. Sluss, of Wichita, and R. J. Higgins, of Kansas City, amici curiæ. Maurice McNeill, of Kansas City, Mo., and C. A. McNeill, and C. B. Skidmore, both

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of Columbus, and J. I. Sheppard, of Ft. Scott, | Wade then said that if some one would drive for appellee.

PORTER, J. At the first trial of this case the district court sustained a demurrer to plaintiff's evidence. On appeal from that ruling the judgment was reversed and the case remanded for a new trial. Wade v. Electric Co., 94 Kan. 462, 147, Pac. 63. The case has been tried a second time, resulting in a verdict and judgment in plaintiff's favor for $8,000, from which judgment this appeal was taken.

The plaintiff brought the action to recover damages for the death of her husband, John Wade, on account of the alleged negligence of the defendant company. John Wade was by occupation a mover of houses, machinery, and articles of like character. On September 17, 1913, while engaged in moving a derrick along the highway from a place in Jasper county, Mo., to Galena, Kan., he came in contact with certain electric wires belonging to the defendant, and was electrocuted. Two grounds of negligence are charged: First, in not having the wires insulated; second, in permitting them to be too low over the highway.

The derrick was 20 feet high and about 12 feet square. The four corner posts were 6x6. It was loaded on two trucks or wagons which raised it from 8 to 12 inches and made it extend in the air from the ground 21 feet. The owners of the derrick employed John Wade and his brother, Sam Wade, to move it. Twice before reaching the place where Wade was killed, it was found necessary to remove telephone wires to allow the derrick to pass under them. At both these places, Grigsby, who was one of the owners of the derrick, climbed on top of it and lifted the wires over. Afterwards they reached the wires of the defendant company, which were strung across the road at a height of 20 feet and at right angles to the road. Adjoining the road on the west side the wires were supported by what is called a four-post construction. Four poles were set in the ground so that they formed a square. The purpose of the four-post structure, which had been in existence since 1910, was to give greater strength at a point where the wires turned at 'right angles, and to prevent the weight and strain due to contraction from pulling down the support. There was a difference in the construction of the poles and the manner of supporting the wires from that used in the construction and support of the telephone wires which Grigsby had raised. Larger wires and larger and different kinds of glass insulators are used on the poles of power lines. When the parties reached the wires of the defendant the derrick was stopped within a few inches of the obstruction, and Wade asked Grigsby to go up and lift the wires, but he refused. Wade then asked Summers, another man assisting in the work, to go up and lift the wires, and he likewise refused.

his team he would lift the wires. When he started upon the derrick, his brother cautioned him, saying, "Look at them; be careful what you do," and in reply John said, "I have raised hundreds of them," and climbed to the top of the derrick. During the time he was raising the wires he directed the man below to drive forward and back, the wires being too far from the derrick or too close to be raised. He had reached down and raised the first wire and placed it across the derrick, and was on his knees attempting to raise the second wire when he received the shock which killed him. Mr. Boughton, one of the owners of the derrick, who was present at the time of the accident, was called as a witness for the plaintiff. He testified:

"When we came to the wires on that day Mr. Wade and Grigsby and the balance of us knew they were not like the wires we had previously passed under; we knew they were the wires of the Empire District Electric Company; we knew those wires carried electricity."

Summers and Grigsby both testified that they refused to go upon the derrick because they knew the wires were those of the electric company and were dangerous. Sam Wade, brother of the deceased, testified that he knew the company furnished light, heat, and power, and that these wires carried electricity for large separating plants; also that when his brother asked the others to go up and handle the wires they said they "didn't like to." The deceased had been engaged actively in moving houses, machinery, and derricks for 10 years in the district where the defendant had from 150 to 160 miles of wires crossing the highways.

[1] There is a contention that a demurrer to the evidence should have been sustained because of the absence of any testimony to support the averment of the petition that John Wade took hold of the wires preparatory to lifting them over the derrick and in doing so slipped and fell, and thus came in contact with the wires that killed him. It is said no witness testified that he slipped and fell. The contention borders upon the technical. The witnesses stood upon the ground, and none of them could tell the exact manner in which Wade came in contact with the wires. It was conceded that he was handling them in some way for the purpose of getting them over the derrick. The slight variance between the proof and the statement of the petition occasioned no possible prejudice to defendant because its claim of contributory negligence was not strengthened by the evidence showing the facts; and, besides, upon request the trial court would have allowed the petition to be amended to conform to the proof even after judgment.

[2] When the case was here before we held it was error for the trial court to sustain the demurrer to the evidence and to rule as a matter of law that Wade was guilty of contributory negligence. Notwithstanding the former decision much of defendant's brief

is based upon the contention that plaintiff's of the defendant down in the street, and that own evidence shows that Wade was guilty of he told him the current on the wires was contributory negligence, and we are again dangerous and liable to hurt some one, and urged to hold that as a matter of law because that he offered his assistance in passing unof his negligence the plaintiff cannot recover. der the wires whenever notified; also that It is suggested that in view of the common he had another talk with Wade a few weeks knowledge in regard to the wires and busi- before the latter was killed. At that time ness of the defendant, it seems "absurd" to Wade was moving a house, the owner of say that John Wade was not also familiar which had notified Halliwell, and when the with the wires and with the danger of at- latter arrived, Wade said if he had not come tempting to handle them. Webster defines pretty soon he would have moved the house "absurd" as "obviously and flatly opposed to without him. Halliwell says he told Wade manifest truth; inconsistent with the plain the wires were dangerous, that he was liadictates of common sense; logically con-ble to be injured or killed in trying to handle tradictory; nonsensical; ridiculous." The them. Another employé of defendant testievidence of the plaintiff was substantially fied that he was present and heard both conthe same at both trials. In the former opin-versations testified to by Halliwell. ion, Mr. Chief Justice Johnston, speaking The jury by their special answers indicate for the court, said: that for some reason they discredited the "If the question whether Wade acted as a testimony of these witnesses. It is urged reasonably prudent man would under the cir- that this shows the finding is contrary to cumstances in handling the wires in the effort the evidence, and should have been set aside. to move the derrick along the highway is one on which reasonable minds might differ it should Where the trial court is satisfied that the have been submitted to the jury under appro- jury have disregarded evidence it should priate instructions. K. P. Ry. Co. v. Pointer, 14 consider that fact on the motion for a new Kan. 37; Beaver v. A., T. & S. F. Rd. Co., 56 Kan. 514, 43 Pac. 1136; Kemp v. Railway Co., trial in determining whether the verdict has 91 Kan. 477, 138 Pac. 621." 94 Kan. 469, 147 been the result of passion and prejudice; but Pac. 65. where the case comes to this court with the verdict approved by the trial court, it will be presumed that the court which heard the testimony of the witnesses did not regard the finding of the jury as such evidence of passion and prejudice as to warrant a new trial. As has been repeatedly held, this court cannot weigh the evidence. Notwithstanding the repeated decisions to this effect, the brief of the defendant marshals the evidence on which the plaintiff sought to show that derricks and machinery had frequently been transported over this road for many years before the accident. As against this, the defendant arrays the testimony of its witnesses to the contrary, together with facts and admissions drawn out by the cross-examination of plaintiff's witnesses, and the contention is made that the evidence does not sustain the finding that the road had been generally used for the purpose of hauling derricks, houses, and machinery which was higher than the wires of defendant. The answer to all this is, as stated, that we cannot weigh the evidence.

After reviewing the facts the court held that upon the evidence it cannot be said that as a matter of law Wade was guilty of contributory negligence. When the case was here before we recognized the importance of the question involved not only to the parties directly interested, but to the public generally because of the frequency with which similar accidents occur. The case was given the careful consideration which the court deemed its importance required. The law of the case, so far as contributory negligence is concerned, was determined in the former decision. We are satisfied that the conclusions arrived at then are supported by sound reasoning, and therefore shall not in this opinion reconsider that question.

[3] The defendant called two of its employés as witnesses, an inspector and the city foreman at Galena. The inspector testified that on one occasion he had found John Wade moving a house, and that Wade was attempting to put the wires over the house without assistance from the company, and that he said to him, "John, you know what you are doing?" that Wade replied, "I believe I do;" that he said, "You've got some hot stuff;" that Wade said, "I don't care a damn, I've handled it before;" that he said, "John, you took an awful chance;" that Wade replied he had handled hundreds of the wires. The inspector testified that he told the deceased the company would let him through in the proper manner if notified; also that at another time he helped Wade put wires over a house and told him they would kill a horse, and that Wade would get his sooner or later. Halliwell, defendant's city foreman, testified that he found Wade moving

[ocr errors]

[4] The defendant called a large number of expert witnesses, men of wide experience in the field of electrical engineering, who testified that it was not good practice to insulate wires carrying a voltage as high as 5,500; that it was better not to insulate because the insulation would not be a protection, and the mere fact that an attempt had been made to insulate would lead inexperienced persons to assume or believe they could handle the wires with safety, and would result in more accidents than if insulation had not been attempted. Others testified that in the general practice of the best managed electrical companies, wires carry

in outdoor construction it is impossible to insulate wires carrying 5,500 volts so as to make them safe to handle. It is said in the brief:

"We contend that our construction was in good condition, and that it complied with all requirements as to safety as determined by the expert witnesses."

But expert witnesses determine nothing. They testify to facts and to their opinions concerning conditions, and the jury determine what the facts are.

[5] It is argued that if defendant's contention in regard to insulation is true, then there was no negligence in its failure to have the wires insulated. It is insisted that the former opinion invited defendant to introduce persons competent to testify on this subject. The portion of the opinion on which they rely reads:

"Some of the witnesses said that the insulation of these high-voltage wires would be so expensive as to be prohibitive. Others testified that the wires could be insulated at the crossing without great expense as it could be done for forty cents a foot. Whether it is practicable to insulate even at crossings is a question upon which persons appear to differ." 94 Kan. 466,

147 Pac. 64.

of law that it was the defendant's duty to insulate its wires; and our attention is challenged to the answer which the jury gave to the first question submitted by the plaintiff, as follows:

"No. 1. Was the deceased killed by reason of the uninsulated and unsafe condition of defendant's wires which crossed the public highway? A. Yes."

The defendant cites numerous authorities in which this court has held that a judgment will be reversed for refusal of the trial court to instruct the jury concerning a disputed question of fact, and others holding that the trial court should fairly present the law applicable to the theories of both parties so far as they are supported by any evidence. Morse v. Ryland, 58 Kan. 250, 48 Pac. 975; Honick v. Railway Co., 66 Kan. 124, 71 Pac. 265. It is urged that the instruction was improper because it assumes a fact disputed by the evidence. It is only fair to consider the criticism of this particular instruction in connection with other instructions which charged the jury that the duty rested upon the defendant to keep its wires insulated so as to be harmless to others, or if not insulated, to keep them in a position and location out of reach of all common ordinary traffic and travel." ed with the law as declared in the former Moreover, the defendant is again confrontopinion, where the following excerpt from Winegarner v. Edison, 83 Kan. 67, 73, 100 Pac. 778, 780 (28 L. R. A. [N. S.] 677), was quoted with approval:

It is said the defendant complied with the invitation and produced a large amount of testimony showing that it is impracticable to cover the wires with insulation, and complaint is made that the trial court ignored this testimony and instructed as a matter of law that defendant was guilty of negligence if it failed to insulate. In this connection error is predicated upon the refusal to give "If from all the circumstances the defendant two instructions which the defendant offer- had reason to apprehend that the building would ed, in substance, that if the jury believed it be moved under the wires where the accident ocwas impracticable to insulate the wires then curred, it was its duty, knowing its wires to be no negligence could be based upon defend-wires at the street crossing insulated, or to take highly charged with electricity, to have such ant's failure to do so. The particular in- such other precautions as might be necessary struction which the court gave and which to protect any one who might be likely to be is objected to, charged the jury that if they upon such building from contact with or injury from such wires." found from the evidence that the business of moving derricks and other properties of a greater height than the wires of the defendant where they were strung across the highway was a common and ordinary custom which had existed for a number of years, and the defendant knew of these facts or could have known thereof, and might have "reasonably anticipated that persons might rightfully be in proximity to or come in contact with its said wires and it failed to use the highest degree of care to insulate the same and make and keep them safe and by reason of such failure the said John Wade was injured in such manner that he died, while he himself was in the exercise of ordinary care, from a contact with such wires, then the defendant would be liable and the plaintiff would be entitled to re

cover.

The part of the instruction quoted is objected to on the ground that it in effect charged the jury that unless the defendant insulated its wires it was guilty of negligence, and that the court not only ignored the defendant's testimony on this issue by refusing to give the instructions requested, but committed error in deciding as a matter

The opinion also quotes from Shank v. Great Shoshone & Twin Falls Water Power Co., 205 Fed. 833, 837, 124 C. C. A. 35, 39, electric wires across a highway, as follows:

a case where a derrick came in contact with

reasonable precaution to raise and keep its high "It was clearly its duty to have used every 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. structures were common to that locality."

Such

In a very recent case (Snyder v. Light & Power Co., 157 Pac. 442), it was said:

"It was a continuing duty of the defendant to keep its wires insulated, but it appears that the insulation had been broken and the wires had been partly bare for a long time. The defendant therefore must have known that the wires were uncovered and the electric current unconfined at the place in question."

In that case, as in this, the defendant's lines were insulated when first constructed, but defendant failed to keep them insulated. Again it was said in the opinion:

"If accidental contacts with the unprotected wires or contacts which occur through the acts

company, a secluded spot where the deceased and a companion with bottles of beer went in the evening. The deceased took hold of a guy wire which was charged by having come in contact with a live wire. There was no evidence that the officers of the company knew of the condition of the guy wire. All that was claimed was that defendant was negligent in failing to discover the condition. Wade was lawfully using a public highway at the time he was killed and was in no sense a trespasser, nor was he a mere licensee of the defendant.

of third parties, either adults or children, are, way, but the private premises of a railway not within reasonable anticipation, there is little, if any, reason for insulation of wires which are placed thirty feet above the ground. What is the necessity for insulating wires hung beyond the reach of any one? It is surely not alone required for the protection of employés who may have to handle them. These are not the only ones for whom the law requires such protection. Insulation is required largely because the uncovered high voltage wires are a menace to the public through contacts of an accidental character or by the thoughtless action of third parties or through the acts of children. Occurrences of this kind happen often enough in a thickly settled community to admonish those in control of such wires to cover them and provide against such interventions and contacts."

[8] Complaint is made because the court refused an instruction to the effect that the defendant company had the right to maintain its wires across the road. As no one contended to the contrary, an instruction of this kind was not needed. The jury understood with

The trial court in the instructions complained of used substantially the same language in defining the duties of the defendant in this case as the court used in the cases just cited. It is, conceded that the wires which caused the death of Wade were insu-out an instruction that the defendant had the lated at one time, but the insulation had worn off, and that they carried a voltage of 5,500.

right to maintain its wires lawfully upon the highway, provided it took proper precautions to prevent persons lawfully using the highway from being injured by coming in contact with them. We have carefully examined the instructions given and do not think they are open to the objection that the court assumed the existence of any of the material facts against the defendant.

[6] In the twelfth instruction the court charged the jury that in determining whether Wade exercised the degree of care and caution which a reasonably safe, careful, and prudent person would have used, they should take into consideration the circumstances which surrounded the deceased, and among [9] The jury find that the deceased could other things "any notice he may have had of have moved the derrick under the wire by the dangerous condition." This is criticized lowering it and hauling it in a horizontal poon the ground that the court assumed the sition. It is contended that upon this finding wires were in a dangerous, condition. We defendant was entitled to judgment, and that think the criticism is unjust. In that par- the court should have held the deceased guilticular instruction the court was not under-ty of contributory negligence as a matter of taking to state what would establish negli- law, because he failed to adopt a safer methgence of the defendant, but was explaining od. That there was a safer method was one what the jury should consider in determining the kind of care and caution with which Wade was chargeable at the time he came in contact with the wires, and the words "dangerous condition" meant no more than if the court had said, “Any notice he may have had of the danger to himself in handling the wires." Defendant concedes they were dangerous to any person coming in contact with them.

[7] It is seriously contended that the trial court erred in refusing an instruction that John Wade was a trespasser when he drove the derrick against the wires, and therefore the defendant owed him no duty except not to kill him wantonly. The first case cited in support of the rather novel contention that Wade was a trespasser, or, as suggested, "at least a mere licensee," is McCaughna v. Owosso Elec. Co., 129 Mich. 407, 89 N. W. 73, 95 Am. St. Rep. 441. The syllabus in that case reads:

"An electric light company maintaining its overhead and guy wires over the private premises of a railway company need not protect trespassers thereon, nor is it liable for injury to them caused by their coming in contact with a live guy wire.'

In the opinion it is stated that the place

of the facts and circumstances proper for the jury to consider in determining whether Wade exercised ordinary care and prudence.

The defendant offered testimony to prove that no accident had ever occurred at the place prior to the death of Wade. It is said in the brief:

"If the numerous high structures were moved as claimed by the plaintiff, and no accidents ever occurred, is not this of itself strong evidence to show that defendant's wires were not in an unsafe and dangerous condition?"

That no accident occurred there before was a circumstance which it was proper to urge before the jury, but the fact itself has no place in an argument before a court which cannot determine facts.

Some of the special questions submitted by the plaintiff are open to the criticism that they assumed as true some of the controverted questions. They were objected to for this reason. We do not consider them unfair in substance, and we think the defendant sustained no prejudice by the form in which they were drawn. The material facts in the case were not as involved or complex as defendant seems to think they were. There was no dispute as to the manner in

« ÀÌÀü°è¼Ó »