Goodwin v. Columbia Telephone Co.

• Decision Date: 12 June 1911
• Citation: 138 S.W. 940,157 Mo. App. 596
• Parties: GOODWIN v. COLUMBIA TELEPHONE CO.
• Court: Missouri Court of Appeals

138 S.W. 940

157 Mo. A. 596

GOODWIN v. COLUMBIA TELEPHONE CO.

Kansas City Court of Appeals. Missouri.

June 12, 1911.

Rehearing Denied June 28, 1911.

1. TRIAL (§ 156) — DEMURRER TO EVIDENCE — CONSIDERATION.

On demurrer thereto, plaintiff's evidence must be considered under the view most favorable to plaintiff.

2. ELECTRICITY (§ 19) — DEATH OF PEDESTRIAN — LOCATION OF WIRE — EVIDENCE — SUFFICIENCY.

In an action for death of a pedestrian by grasping an electric wire concealed by foliage, evidence held to sustain a finding that the wire had sagged within ordinary reach.

3. NEGLIGENCE (§ 2) — NATURE.

Negligence in its technical sense embraces failure to discharge a legal duty to an injured person.

4. ELECTRICITY (§ 14) — TELEPHONE WIRES — NEGLIGENT MAINTENANCE — LIABILITY.

Liability for negligent maintenance of telephone wires is measured by the consequences reasonably to be anticipated.

5. NEGLIGENCE (§ 119) — RIGHT TO RECOVER — PLEADING.

One suing for an injury on the theory of defendant's omission to use ordinary care must recover, if at all, on that theory.

6. ELECTRICITY (§ 16) — MAINTENANCE OF WIRES — DUTY OF TELEPHONE COMPANY.

In constructing and maintaining its wires, a telephone company must anticipate the likelihood of contact between its wires and those carrying dangerous currents.

7. ELECTRICITY (§ 16) — NEGLIGENCE — CONTACT OF WIRES.

That a telephone company permits its uninsulated wire to remain in direct contact with an electric wire for 12 days shows negligence.

8. ELECTRICITY (§ 18) — DEATH OF PEDESTRIAN — CONTRIBUTORY NEGLIGENCE.

A pedestrian is not guilty of contributory negligence in extending his hand into the foliage of a tree near a sidewalk, as affecting liability for his death caused by his hand coming in contact with a concealed electric wire.

9. ELECTRICITY (§ 16) — KNOWLEDGE OF DEFECT — NOTICE TO EMPLOYÉ.

That information as to the dangerous condition of a wire was reported to a telephone company's lineman off duty does not show notice to the company of the condition, it not appearing the lineman was in control of the particular line, or that he had any authority to repair on his own initiative, or that he was under any duty to report "trouble" of which he received information while off duty.

10. CORPORATIONS (§ 428) — NOTICE TO AGENT — EFFECT.

Knowledge coming to an agent of a corporation while not performing his duties is not notice to the corporation.

Appeal from Circuit Court, Boone County; N. D. Thurmond, Judge.

Action by Gertrude Goodwin against the Columbia Telephone Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

E. W. Hinton and McBaine & Clark, for appellant. Harris & Finley and Chas. M. Hay, for respondent.

JOHNSON, J.

Plaintiff, the widow of James W. Goodwin, deceased, is prosecuting this action under section 5426, R. S. 1909, to recover damages for the death of her husband, which, she alleges, was caused by the negligence of defendant. The answer is a general denial and a plea of contributory negligence. The cause is here on the appeal of defendant from a judgment of $6,000 recovered by plaintiff at the end of a trial to a jury.

The injury which caused the death of Goodwin occurred between 6:30 and 7 o'clock in the evening of July 29, 1910, on Fifth street, in the city of Columbia. This street runs north from Broadway, and in the order named crosses Walnut, Ash, and Para Avenue, east and west streets. A granitoid sidewalk four feet wide is on the west side of Fifth street, and at a place south of Ash street the sidewalk runs under the overhanging branches of a large locust tree, the trunk of which is on a low terrace just west of the sidewalk. Defendant operated a telephone exchange in the city and maintained a line on Fifth street consisting of poles, cross-arms, and eight wires; the poles being planted on a line just east of the east line of the sidewalk mentioned. One of these wires (the cause of Goodwin's death) swung about 18 inches east of the sidewalk at a height variously estimated by the witnesses. The line was in poor repair, and for some time the wires including the one under special consideration, were slack and swung low at the place where they passed through the overhanging foliage of the tree. Early in the morning of Sunday, July 17, 1910, 12 days before the death of Goodwin, a severe windstorm broke some of the limbs of the tree in a manner to cause them to press the wire in question down to a height of about six feet, and hold it there. Soon after some of the lower branches were removed, but the wire continued to be held down by other branches of the broken limbs, and a number of witnesses introduced by plaintiff say that the height of the wire above the sidewalk until the death of Goodwin was between six and seven feet.

Witnesses for defendant testify that the wire was over eight feet high, and, since defendant contends that the evidence of plaintiff relating to this fact must be ignored as contrary to the plain and undisputed physical facts of the situation, we shall briefly review this evidence after completing the history of the death of the unfortunate man. At Park avenue the second street north of the tree the telephone line crossed a line of electric light wires maintained by the city. These wires carried high-power currents of electricity, and were insulated. Defendant's telephone wires carried low currents, and were uninsulated. The wire in controversy at the crossing had been run between the electric light wires, and there is substantial evidence tending to show that on July 17, 1910, and thence on to the death of Goodwin, it had come into contact with one of the light wires, had worn off its insulation, and consequently was in place and condition to make a short circuit of the powerful current carried by the light wire. Goodwin, his wife, and small child and a young woman were returning home from a visit to the "county fair." They walked south on the sidewalk on the west side of Fifth street, and Goodwin, who was 30 years old, and the young woman, were in a playful mood. He "tagged" her on the arm. She ran on to the sloping terrace. He started to follow, but turned back to the sidewalk, and reached up to push aside the depending foliage, or to pluck some leaves. His hand grasped the telephone wire running through the foliage, and his body formed a short circuit for the deadly current drawn by the telephone wire from the electric light wire at the crossing on Park avenue. He was a large, vigorous man, and struggled with death a brief moment. Witnesses say he fought the wire, and, as they describe the scene, the wire seemed a sentient enemy of overpowering strength which, despite his struggles, slowly drew him to its embrace. At some time the wire broke. One witness said the wire "seemed sticky," and that Goodwin vainly tried to push it away. Once he sank down, but arose, still fighting, then sank again, never to arise. In line with the contention of defendant that the wire was over eight feet high, its evidence tends to show that Goodwin followed the young woman on to the terrace, and then, turning playfully, jumped and tried to catch the foliage, but, instead, caught the wire. The inference might be drawn from some of the evidence that the young man intentionally caught the wire, but nearly all of the witnesses, including some introduced by defendant, say they thought he was trying to catch at the leaves or branches of the tree, and in the consideration of the demurrer to the evidence, we shall assume that such was his purpose, and that he had no thought that a deadly enemy lay concealed in the foliage; and, further, should we find that the evidence of plaintiff touching the height of the wire is not opposed to plain and indisputable physical facts we would be justified, under the rule that requires us to take the most favorable view of the evidence of plaintiff, in passing on the demurrer to the evidence, in assuming that Goodwin did not jump at all, but, standing on the sidewalk, merely reached up his hand to brush away the hanging foliage, or, perhaps, to pluck some leaves. The contention of counsel for defendant relative to the height of the wire is based on the fact that at the places where the wire was held down by the broken branches the bark was rubbed off, and that these abrasions were over eight feet above the sidewalk by actual and accurate measurement made after the event.

The evidence of plaintiff relative to the height of the wire and the existence of the short circuit even as far back as July 17th is as follows: J. F. McCowan testified that in going along the sidewalk the afternoon of the day of the storm he observed that the wire was being held down by the branches, and was not over six feet high, that it was low enough to strike him on the head, and that he tried to take off one of the limbs, and accidentally came in contact with the wire receiving a severe shock. Witness then followed the wire back to Park avenue, and saw that it rested on an electric light wire at the crossing, and had worn a groove in the insulation. Further he testified: "Q. Did you notice the height of the wire from the sidewalk on the day that Mr. Goodwin was killed? A. It was about — the limb that held the wire down right under the tree, it was about 6 foot high there, and after that the limb was taken off and the wire sagged back south and it was lower back south than under the tree. Q. Back south 5 or 10 or 15 feet south of the place where the limb had rested upon the wire, how high was the wire from the sidewalk? A. It was not over 6 feet high. Q. Was that the condition on the day that Mr. Goodwin was killed? A. I never noticed it just the day he got killed, but it was the day before he got killed."

J. W. Woods testified that on the day of the storm he pushed a limb off of the wire with a pitchfork and received a severe shock. We quote from his testimony: "Q. At that time how high was...