Milligan v. Kansas City Light & Power Co.

*628 RAGLAND, J. This is an appeal from a judgment for $10,000, rendered April 15, 1921, in favor of one Prank Milligan and against the Kansas City Light & Power Company, for personal injuries sustained by the former while in the latter’s employ. The cause was argued and submitted in Division Two of this court at the April term, 1923, and an opinion was written. On the dissent of one of the judges of that division the cause was transferred to Court en Banc. *629 Milligan died on May 10, 1922, pending this appeal, and his administratrix was substituted as respondent. To avoid confusion of statement he will be referred to as the plaintiff, and the appellant, Kansas City Light & Power Compaily, as the defendant. Plaintiff was a lineman. At the time of his injury he was at work on a pole which was one of a line of poles extending east and west on the north side of Thirty-first Street in Kansas City. It was an iron pole eighteen feet high, with a wooden extension of five and one-half feet at the top. On the iron pole just below the wooden extension there were two iron cross-arms; on the wooden top there were two wooden cross-arms, from fourteen to sixteen inches apart. The lower wooden cross-arm was approximately two and a half feet above the upper iron cross-arm. The iron cross-arms carried the wires of the Kansas City Eailways Company and the wooden ones those of the defendant. One of defendant’s wires, a 4000-volt feeder wire, was carried on the south side on the top wooden cross-arms of the line of poles, attached to the second pin from the pole. This wire was being transferred to the pin next to the pole. The crew engaged in the work of transferring the feeder wire consisted of a foreman, two linemen (plaintiff and one Ebeck), a ground man and a wagon driver. The manner of doing the work was this: A wooden ladder was put up between the wires of the Eailways Company so that the top rested against the top iron cross-arm on the pole; a lineman then climbed the ladder and, while standing on one of the upper rounds, unwound the tie-wire holding the feeder wire to the insulator on the outer pin, moved that wire to the inside pin and then tied it. The two linemen alternated in doing the work, one of them taking one pole and the other the next. On the occasion of plaintiff’s injury he climbed the ladder and stood on the second round from the top preparatory to making a transfer of the feeder wire from the outer pin to the inner one on the top wooden cross- *630 arm. His shoulder was about even with that cross-arm. His feet, on the wooden round of the wooden ladder, were, as to elevation, about half way between the two iron cross-arms. The space between the closest wires where he had to work was thirty-six inches. When he got into the position just described he put his safety belt around the pole, took his pliers in his right hand and unwound the end of the tie-wire on one side of the insulator. He then placed his pliers in his left hand and reached over to untie the other side. As he did so either he or the ladder slipped so that his feet landed on an iron cross-arm. He thereby became grounded and instantly received the current from the heavy voltage feeder wire. His injuries from the- shock and burns were severe, the most serious being an impairment of vision. The feeder wire was uninsulated. It was merely . covered with a composition designed chiefly to protect it from the elements. This weather-proofing, however, was in perfect condition. The evidence showed without contradiction that wires with only such covering, that is, weather-proof insulation so-called, were in general use for outdoor overhead construction by companies engaged in operating electric light and power plants like that of defendant. Defendant furnished its employees who were required to work in and about or with live wires the same devices for protection that were used generally by others engaged in the same character of business. Among these were rubber gloves and rubber blankets.. There were a number of each in a box or case oh the wagon which accompanied the crew- in their work of transferring the feeder wire. But neither Ebeck nor plaintiff used them. Plaintiff stated on the witness stand that rubber gloves were at his disposal and would have furnished him adequate protection, but he thought that he did not need them. Ebeck who was a witness for plaintiff said that the gloves were useless because they had holes in them. It is fairly inferable from his and plain *631 tiff’s testimony, however, that they did not nse the gloves because they thought the wooden ladder on which they worked made it unnecessary. The alleged negligence on which plaintiff based his action was pleaded as follows: “That the said wires had been insufficiently insulated and that the insulation so used had been allowed and permitted by defendant to become defective and in a condition dangerous to human life and was so worn and defective as to fail to afford protection against the electricity «carried on said wires; that the aforesaid insufficient insulation and the defective, dangerous and worn condition thereof which caused plaintiff’s injuries, hereinafter mentioned, was well known to defendant, or in the exercise of due and proper attention and diligence in the care thereof the defendant should have so known; that while plaintiff was at work and engaged as aforesaid, he came in contact with the wires of defendant, which had been insufficiently insulated and had been allowed and permitted by defendant to become defective in insulation, dangerous and worn as aforesaid, and by reason of the carelessness and negligence of the defendant, as aforesaid, a high voltage of electricity passed from said wires into plaintiff’s hand and body, thereby severely, painfully and permanently injuring plaintiff as hereinafter stated.” In plaintiff’s principal instruction the jury were told “that it was the duty of the defendant to use and exercise the highest degree of care and foresight to have and keep its wires, which were charged with a current of electricity, such as to be dangerous to human life and safety, if exposed, so insulated or guarded as to prevent injury to a person in its employ by contact therewith while in the performance of his duties.” *632 *631 I. Respondent has filed a motion to dismiss the appeal on the ground that appellant printed and filed *632 a Ml transcript of the record instead of an abstract thereof. In view of the ruling in Frohman v. Lowenstein, 303 Mo. 339, the motion must be overruled. II. Appellant’s main contention is that on the trial below it was entitled to a directed verdict. This for the twofold reason, as it alleges, that the petition did not state a cause of x action, nor did the evidence tend to establish one. * It is patent from the record that plaintiff’s action proceeded on the theory that the failure of defendant to insulate its wires was negligence per se, that as a matter of law defendant owed its employees who were required to work in proximity to its electrically-charged wires the duty of so insulating those wires that the current could not escape and inflict injury. Plaintiff contented himself with showing the non-insulation, contact while at work within the scope of his employment and the resulting injury. While he was doing this defendant drew out of his witnesses on cross-examination the fact that precisely the same character of wire was used in like constructions by other employers operating similar plants, and the further fact that the safety devices furnished by defendant to its employees were not only, such as were in general use, but that they were entirely adequate to protect them from injury. These facts the plaintiff ignored. Whether he deemed them irrefutable, or merely irrelevant, does not appear. The. theory of liability upon which plaintiff tried his case seems to be based on the ruling in Geisman v. Missouri-Edison Electric Co., 173 Mo. 654; Ryan v. Transit Co., 190 Mo. 621; Von Trebra v. Gas Light Co., 209 Mo. 648; Clark v. Railroad, 234 Mo. 396 and Sudmeyer v. United Rys. Co., 228 S. W. 64. These cases all hold that it is the duty pf a company handling and distributing the highly dangerous force of electricity to use every available precaution to *633 insulate its wires at all points where people have a right to go, and to use the utmost care to keep them so insulated, but all, except the one last mentioned, were dealing with the duty which such a .company owes to the public generally, and not to its employees. The distinction between them and the ease at bar is manifest. The public have neither warning of the hidden peril of an electrically-charged wire, nor the means of protecting themselves against it; while employees, circumstanced as was the plaintiff, are not only fully advised as to the character of the wires about which they work, but are supplied with safety appliances which afford ample protection from injury. While an employer owes to his employees the duty to make safe' the place where they are required to perform their services, he is not liable as an insurer in that respect. He is bound only to exercise reasonable care, the degree depending upon the danger attending the employment, and the standard being the care exercised by prudent employers under similar circumstances. The facts of the instant case clearly bring it within the influence of this universally accepted doctrine. The place where plaintiff was required to work was dangerous. The defendant might have made it reasonably safe by insulating its wires, if that were practicable in the construction of which they formed a part. Instead of doing that, however, it followed the usage that obtained among employers generally under similar circumstances. It furnished its employees, including plaintiff, with safety appliances which would fully protect them. It must be held, under the facts disclosed by this record, that in so doing it discharged its full duty to them. In Sudmeyer v. United Rys. Co., supra, the employee was engaged in mending a broken trolley wire while standing on an insulated repair truck. The trolley wire and a sub-feed wire attached to it carried a current of five hundred and fifty volts. The trolley wire was necessarily uninsulated, but the sub-feed wire was, or had *634 been,, insulated. In making such repairs it was not customary to use rubber gloves, because tbe rubber-wheeled truck was supposed to afford full protection. On the occasion of the injury giving rise to that case, however, the workman by some unknown means became grounded and when he took hold of the sub-feed wire received a shock which caused his death. In holding that the failure to keep the sub-feed wire properly insulated made a case for the jury on the question of defendant’s negligence, it was said: “It could be insulated, and was insulated by the defendant, so that its employees, when repairing it or coming in contact with it while repairing the trolley wire, would have the double protection of an insulated wire, as well as an insulated instrument or platform upon which to stand while doing the work. That persons of ordinary prudence in this dangerous business would give their employees this double protection when practicable is conclusively proven by the fact that defendant did insulate its feed wires, and, so far as the evidence shows, such construction is not extraordinary or uncommon.” . : Whether it was practicable to so effectually insulate the wire in the construction involved in this case that the electrical current could not have escaped from it was not shown. It does appear, however, that defendant made no effort to insulate its wires; that it adopted other means which were efficient, to protect its employees; and that in both these respects it followed the custom and practice which generally obtained among employers under similar circumstances. These facts seem to distinguish this from the Sudmeyer Case. In any event that case is not an authority for the proposition that an employer, such as the defendant, under any and all circumstances and conditions, owes to its employees the absolute duty to insulate its wires; it merely holds that a failure to insulate, under the circumstances which it details, will support a finding of negligence. *635 Ebeck, one of plaintiff’s witnesses, casually remarked while on the witness stand that the rubber gloves furnished by defendant were old and had holes in them. This statement has not been overlooked; under the issues it is unimportant, if true. The action was based solely upon the alleged negligent failure to insulate the wires, and not in any respect upon a failure to inspect and re-place as they became defective the safety appliances furnished. Other questions raised are largely incidental to the principal one which has been disposed of and need not be considered. The judgment of the circuit court is reversed and the cause remanded. All concur.