Kuhlman v. Water, Light & Transit Company

Citation271 S.W. 788,307 Mo. 607
Decision Date13 April 1925
Docket Number24669
PartiesMARY KUHLMAN v. WATER, LIGHT & TRANSIT COMPANY, Appellant
CourtUnited States State Supreme Court of Missouri

Appeal from Chariton Circuit Court; Hon. Fred Lamb, Judge.

Reversed and remanded

S J. & G. C. Jones, Collett & McKittrick, F. C. Sasse and Conkling & Withers for appellant.

(1) Under the petition and evidence it was the duty of the court to give the peremptory instruction requested by defendant at the close of all of the evidence in the case. The evidence in the record fails to make a case. Curtis on Electricity, sec 417; Minneapolis v. Cronin, 20 L. R. A. (N. S.) 816; Harter v. Colfax Elec. Co., 124 Iowa 500; Brunell v. Electric Co., 188 Mass. 493; Smith's Admr. v. Middleborough, 174 S.W. 773. (2) Reversible error exists in instruction number one given on the part of plaintiff. That instruction broadens the scope of the petition, viz: (a) Paragraph "first" of said instruction submit to the jury a specification of negligence not pleaded in the petition. (b) Paragraphs "second," "third," "fourth" and "fifth" submit specifications of negligence not proven by the evidence, and therefore broadens the scope of the case and also permits the jury to determine for themselves the law of the case. Walquist v. K. C. Ry Co., 292 Mo. 34; Daniel v. Pryor, 227 S.W. 105; State ex rel. v. Ellison, 270 Mo. 653; Christian v. Ins. Co., 143 Mo. 469; Fieldworth v. Railroad, 181 Mo.App. 640; Redding v. Railroad, 165 Mo.App. 130. (3) The court erred in giving instruction number two on the part of plaintiff. Said instruction did not confine the jury to the issues made by the pleadings; it enlarged the scope of the pleadings and evidence. Walquist v. Railroad, 292 Mo. 34; Fieldworth v. Railroad, 181 Mo.App. 640; Redding v. Railroad, 165 Mo.App. 130; Craton v. Huntzinger, 163 Mo.App. 640. (4) Instruction number three on the part of plaintiff contains reversible error in that it submits to the jury matters not shown by the evidence. There is no evidence showing that the men who made any repairs were employees of the defendant, that they were acting for defendant or that they had any authority to bind the defendant by any word or act of theirs. Neither is there any evidence showing what the line and scope of their employment were. State ex rel. v. Ellison, 270 Mo. 655; Walquist v. Railroad, 292 Mo. 30; Daniel v. Pryor, 227 S.W. 105; Fieldworth v. Railroad, 181 Mo.App. 640. (5) The evidence shows that plaintiff received her injuries by voluntarily taking hold of the ground wire to disengage it from the poultry wire. Therefore she cannot recover. Minneapolis v. Cronin, 20 L. R. A. (N. S.) 822. (6) Paragraph two of plaintiffs instruction numbered 1 is in direct conflict with defendant's instruction numbered 3. This conflict was bound to mislead the jury, to confuse them, and there is no way of telling which instruction the jury followed. Stid v. Mo. Pac. Ry. Co., 236 Mo. 398; Allen v. Lumber Co., 171 Mo.App. 504; Paris v. Crutcher, 189 Mo.App. 150; Smith v. Railroad, 126 Mo.App. 123; Wollack v. Transit Co., 123 Mo.App. 167.

John D. Taylor for respondent.

(1) A demurrer to the evidence admits as true every fact which testimony tends to prove and every inference to be reasonably drawn therefrom. Lebrecht v. Miller, 192 S.W. 1050; Bingaman v. Hannah, 270 Mo. 611. On a demurrer to the evidence plaintiff was entitled to every reasonable inference from the evidence taken in the light most favorable to her. Link v. Hamlin, 270 Mo. 319; Wagner v. Wagner, 204 S.W. 390; Wojciechowski v. Coryell, 217 S.W. 638; Weiss v. Heat & Power Co., 227 S.W. 837; Curtis on Electricity, pp. 620, 729, 910; Montgomery v. Railroad, 181 Mo. 503. (2) There was no error committed in giving plaintiff's Instruction 1. Every allegation of negligence in the instruction is to be found in the petition. Moreover, this instruction is an instruction favorable to the defendant. It expressly prevents the jury from finding on any issue not set out in the petition. Lee v. Knapp & Co., 155 Mo. 610; Chadwick v. Transit Co., 195 Mo. 517; Montgomery v. Railroad, 181 Mo. 508. (3) There was no error in giving Instruction 2. This instruction read with Instruction 1 clearly states the law and expressly limits the jury to the acts of negligence pleaded. Montgomery v. Railroad, 181 Mo. 513. Nor is the reference to the petition error. Hartpence v. Rogers, 143 Mo. 633. (4) Instruction 3 merely informs the jury that, however skilled a workman might be, that skill does not excuse negligence. Appellant overlooks the fact that there was positive proof that Wires was manager of the defendant company; that he directed the installation of the lines from the house to the garage and chicken house; that the defendant company received compensation for material and labor; that when trouble was had with the lights Wires was communicated with: that immediately following the communication with him men appeared for the declared purpose of making inspections and corrections; that when necessary they controlled the cutting off of the current; that it was the methods of correction, and that the inspection indicated both negligence and a lack of skill and competency. Appellant also overlooks the fact that the jury are entitled to draw reasonable inferences from facts proved. 2 Chamberlain on Evidence, art. 1027. (5) The evidence is uncontradicted that plaintiff received her injury before she discovered the condition of the wire on the outside. There is no evidence that she ever came in contact with the wire. This assignment of error on the part of appellant is not based upon any fact in evidence and is an unwarranted assumption. (6) There is no conflict between plaintiff's Instruction 1 and defendant's Instruction 3. Paragraph 2 of plaintiff's instruction complains because defendant permitted current to pass over the wires into the house when they knew the wires and equipment were in a defective condition. Defendant's instruction instructs the jury that they cannot find that defendant permitted an excessive voltage of electricity to pass into the house. This dealt with an entirely different situation and one upon which no issue was made in the trial. Moreover, there would be no conflict if the two instructions dealt with the same matter. Instruction 1 merely points out the grounds of negligence complained of and limits the jury to those grounds and denies the right to find for plaintiff on any other ground. Defendant's Instruction 3 instead of conflicting would in that circumstance limit the recovery further and would be harmonious rather than conflicting. Montgomery v. Railroad, 181 Mo. 513.

Seddon, C. Lindsay, C., concurs.

OPINION
SEDDON

Suit for damages for personal injuries. Plaintiff's petition alleges that during the year 1917 the Brunswick Light & Water Company built transmission lines from Brunswick to Keytesville, by way of Dalton, Missouri for the purpose of transmitting electric current from Brunswick to Keytesville and Dalton, to supply the inhabitants of said towns and persons living along the route of said lines with electric current for lighting and mechanical purposes; that said Brunswick Light & Water Company entered into an agreement with plaintiff and her husband wherein said company agreed to furnish a transformer, all wiring, equipment and fixtures necessary for wiring and equipping plaintiff's home, together with competent and experienced men to do said work, for which plaintiff's husband was to pay the reasonable cost, and thereafter said company was to furnish electric current to be used in said home for lighting and mechanical purposes, and said company agreed to inspect and keep said transformer in proper operating condition and to furnish skilled and experienced men for the purpose of making inspection of said wiring and equipment used in said home, regulating and correcting any trouble that might arise from time to time and making any and all repairs that might be necessary; that thereafter the Brunswick Light & Water Company sold its plant, lines and other equipment to defendant, which has since continued to operate said electric plant by means of said transmission lines, and defendant has since said date continued to furnish electric current, and to furnish the service of persons for the purpose of making repairs, correcting trouble and making inspections, to plaintiff and her husband at their home near Dalton, conducting and carrying on the agreement theretofore made with the Brunswick Light & Water Company; that on the day of June, 1921, either because defendant was permitting an unusual and excessive amount of current to come from its transmission lines through said transformer and into plaintiff's home, or because of some defect in wiring and equipment in said home, the electric current was escaping or charging parts of said equipment with which it was necessary to come in contact in using same, so that a person would receive a shock when using same; that immediately upon discovery of said condition, plaintiff communicated the fact to defendant by notifying the person in charge of its office at Brunswick, and within a short time thereafter defendant's manager sent certain employees to plaintiff's home for the purpose of making inspection and repairing and correcting the defective condition; that they made certain changes, corrections and repairs on said occasion, but failed to correct the defective condition; that plaintiff thereafter, on a number of times, notified defendant of such conditions and called upon it to repair and correct such conditions so that said appliances could be used in the usual and ordinary manner safely and without damage to persons and property, and defendant's manager at Brunswick caused certain employees to come to the premises and to...

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