Trebra v. Laclede Gaslight Co.

• Decision Date: 26 February 1908
• Citation: 108 S.W. 559,209 Mo. 648
• Parties: BERTHA VON TREBRA v. LACLEDE GASLIGHT COMPANY, Appellant
• Court: Missouri Supreme Court

108 S.W. 559

209 Mo. 648

BERTHA VON TREBRA v. LACLEDE GASLIGHT COMPANY, Appellant

Supreme Court of Missouri, First Division

February 26, 1908

Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.

Affirmed.

I. H Lionberger for appellant.

(1) The specific and only act of negligence charged in the petition is that "defendant had allowed its wires to become defective in insulation and in a dangerous condition." No proof in support of this allegation was offered, and none appears in the record. The uncontradicted testimony of all the witnesses, both for plaintiff and defendant, establishes the fact that the insulation was of the sort usually used and required by law, and in good condition at the time of the accident. Negligence of another sort, to-wit, in not providing a new and different kind of insulation, which was not required by the ordinance, is not provable under such charge. McCarthy v. Rood Hotel, 144 Mo. 397; McNamanee v. Railroad, 135 Mo. 440; Schneider v Railroad, 75 Mo. 295; Waldhier v. Railroad, 71 Mo. 516. (2) Mischief, which a reasonable person could not have anticipated, cannot be taken into account as a basis on which to predicate a wrong. By a reasonable estimate of probabilities it could not have been anticipated that a situation which had proved safe for all sorts of linemen ascending and descending the pole for a period of fourteen years, was dangerous to an ordinarily careful man. Fusch v. St. Louis, 167 Mo. 646; American Brewing Assn. v. Talbot, 141 Mo. 674. (3) Defendant was in no sense an insurer of the safety of the plaintiff's husband. It was bound to use reasonable care, all the facts of the situation considered. The wires were not on a roof, nor accessible to the public in general. They were strung on a pole elevated a considerable distance above the highway and no one had the right to go near them but an experienced lineman familiar with wires and their dangers. The wires were plainly visible, and strung on the proper or back side of the pole. They were insulated in the customary and required manner. Circular loom would have been more dangerous in wet weather, and after storms wires usually require to be repaired. They had been passed in safety thousands of times by all sorts of men, and no accident had ever occurred. They had been passed in safety by Von Trebra himself. The situation was safe to one using ordinary care, and it was not negligence not to anticipate such an accident as occurred. Fusch v. St. Louis, 167 Mo. 646; Frauenthal v. Gas Co., 67 Mo.App. 1. (4) The evidence does not prove, nor tend to prove, that plaintiff's husband was killed by the wires of defendant. He might have met his death from either of several causes, all of which existed and are established by the evidence. A conjecture that defendant's wires might have caused the death is not sufficient to fix responsibility upon defendant. Trigg v. Lumber Co., 187 Mo. 227; Hewett v. Steele, 136 Mo. 335. (5) Assuming, however, that the wires of defendant were dangerous and caused the death of plaintiff's husband, yet plaintiff's own testimony shows that he was guilty of contributory negligence. Von Trebra was a lineman of long experience in this sort of work. He knew all the wires, the currents carried and the dangers of contact. He had been cautioned by his own foreman. The wires of defendant were in plain view. He had passed them in ascending the pole. He saw the insulation used. His clothes were saturated with perspiration. He started down the wrong side of the pole, knowing the presence of the wires. He might have gone the other way. To choose a dangerous and unnecessary way to descend the pole while his clothes were wet and the dangers of contact were excessive, was to neglect a precaution which ought to have been taken. Under such circumstances, he was the author of his own wrong. Davies v. Mann, 10 M. & W. 548; Roberts v. Tel. Co., 166 Mo. 378; Phelps v. Salisbury, 161 Mo. 1; Howelson v. Railroad, 157 Mo. 225; Watson v. Railroad, 133 Mo. 250; Craig v. Sedalia, 63 Mo. 430; Ray v. Poplar Bluff, 70 Mo. 252.

Chas. L. & Phillips Moss for respondent.

(1) (a) Under the allegation of the petition that by reason of the negligence of defendant the wires "were in a dangerous condition," any evidence tending to show that defendant had not discharged its full duty in rendering them safe is admissible. Its duty under the circumstances of this case was to use every precaution which was reasonably accessible to insulate its wires at the point of contact or injury, and to use the utmost care to keep them so. Geisman v. Elec. Co., 173 Mo. 654; Winkelman v. Kansas City E. L. Co., 110 Mo.App. 184; Ryan v. Railroad, 190 Mo. 621. (b) "An objection that the evidence is not within the issues must be made at the time the evidence is offered or it is waived and the appellant can neither complain of instructions based upon such evidence nor ask the upper court to pass upon it on appeal." Stuart v. Goodrich, 9 Mo.App. 125; Chouquette v. Railroad, 152 Mo. 257; Harwood v. Tons, 130 Mo. 225; Miller v. Railroad, 105 Mo. 421; Lancaster v. Ins. Co., 62 Mo. 121; Sexton v. Allen, 49 Mo. 417; Lox v. Railroad, 57 Mo.App. 350; Bank v. McMenamy, 35 Mo.App. 203. (c) Unless there is a failure of proof in a case "in its entire scope and meaning," there is no failure of proof, but only a variance. In the case of a variance, which may be cured by amendment, defendant's remedy is by affidavit proving to the satisfaction of the court that he was misled as provided for by the statute, Revised Statutes 1899, section 655. In case defendant fails to pursue this remedy the point is waived and objection to the evidence claimed to be variant can not be urged by him on appeal. To allow him to do so would deprive the plaintiff of his right to amend at the trial. Chouquette v. Railroad, 152 Mo. 257; Miller v. Railroad, 105 Mo. 144; Ridenhour v. Railroad, 102 Mo. 270; Meyers v. Chambers, 68 Mo. 626; Wills v. Sharp, 57 Mo. 56; Turner v. Railroad, 51 Mo. 509; Litton v. Railroad, 111 Mo.App. 144; Chartrand v. Railroad, 57 Mo.App. 425; Brown v. Railroad, 31 Mo.App. 661. (d) The allegations of the petition that the wires "had been allowed by defendant to become defective in insulation, and were in a dangerous condition," were amply proven under the doctrine of res ipsa loquitur by the evidence tending to prove that Von Trebra could have been killed by no other agency than a shock from defendant's wires. Geisman v. Elec. Co., 173 Mo. 654; Winkleman v. Kansas City E. L. Co., 110 Mo.App. 184; Ryan v. Railroad, 190 Mo. 621. (2) "It is the duty of an electric lighting company to use every accessible precaution to insulate its wires at all points where people have the right to go and to use the utmost care to keep them so insulated." Geisman v. Elec. Co., 173 Mo. 654; McLaughlin v. Elec. Co., 100 Ky. 173, 34 L. R. A. 812; Overall v. Elec. Co. (Ky.), 47 S.W. 492; Clements v. Elec. Co., 44 La. Ann. 692, 16 L. R. A. 43, and cases cited by the Geisman case supra; Winkleman v. K. C. Elec. Co., 85 S.W. 99, 110 Mo.App. 184; Ryan v. Railroad, 190 Mo. 621.

OPINION

WOODSON, J.

This is an action which was instituted in the circuit court of the city of St. Louis, by the plaintiff, who is the widow of Ernest C. Von Trebra, against the defendant, to recover the sum of five thousand dollars damages for the alleged negligent killing of her husband in that city, on August 20, 1904.

The petition, omitting formal parts, is as follows:

"Now comes the plaintiff, by her attorneys, and for her cause of action herein avers:

"That the defendant is a corporation duly organized under the laws of the State of Missouri, and engaged in business in the city of St. Louis, and was at the time hereinafter mentioned engaged in manufacturing and furnishing electricity for light and power to its customers and consumers in said city. That the defendant owned, maintained and operated in said city for said purposes, at said times, a system of wires which were strung on poles erected in the streets, by which means the electric current was carried over, upon and through the streets of said city, from its plant to its various consumers; and had and maintained certain such wires on a pole belonging to the Kinloch Telephone Company, which stood on the south-east corner of Broadway and Dock streets in said city at the time hereinafter stated, and which said wires carried a high and dangerous voltage of electricity.

"That plaintiff was the lawful wife of Ernest C. Von Trebra hereinafter named, until his decease, as hereinafter shown, and is now his widow.

"That on the 20th day of August, 1904, the said Ernest C. Von Trebra, husband of plaintiff, then and there lawfully and of right, being engaged in the line of his duty as an employee of the Union Electric Light and Power Company, on and upon the said telephone pole on the southeast corner of Broadway and Dock streets aforesaid, came in contact with the said wires of defendant thereon, which had been allowed by defendant to become defective in insulation, and were in a dangerous condition, and was thereby shocked, burned, thrown to the ground and immediately killed.

"That by reason of the neglect of defendant, its servants and employees the said wires of defendant which thus caused the death of plaintiff's husband had been allowed to become defective in insulation and dangerous to human life; all of which was well known to defendant, or in the exercise of due and proper attention and diligence in the care thereof should have been so known.

"That said deceased so came to his death because of the negligence and misconduct of defendant, and without his own fault or negligence, and because of said wrongful act, negligence and default of defendant the...