Washburn v. Laclede Gas Light Co.

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.