29 S.W. 988 (Mo. 1895), Junior v. Missouri Electric Light & Power Co.

• Citation: 29 S.W. 988, 127 Mo. 79
• Opinion Judge: Gantt, P. J.
• Party Name: Junior, Appellant, v. Missouri Electric Light and Power Company
• Attorney: Harvey & Hill for appellant. Pollard & Werner for respondent.
• Judge Panel: Gantt, P. J. Sherwood and Burgess, JJ., concur. Finding no error we affirm the judgment. Sherwood and Burgess, JJ., concur.
• Case Date: March 05, 1895
• Court: Supreme Court of Missouri

Page 988

29 S.W. 988 (Mo. 1895)

127 Mo. 79

Junior, Appellant,

v.

Missouri Electric Light and Power Company

Supreme Court of Missouri, Second Division

March 5, 1895

Appeal from St. Louis City Circuit Court. -- Hon. John A. Harrison, Judge.

Affirmed.

Harvey & Hill for appellant.

(1) It was the duty of defendants who knew of the danger to which the deceased was exposed to warn him of the same. Wilkins v. Railroad, 101 Mo. 106; Hurt v. Railroad, 94 Mo. 255. (2) The court erred in withholding the case from the jury because the proof was not conclusive that deceased knew of the danger to which he was exposed or that he would have seen the same even if he had looked in the proper direction. Lynch v. Railroad, 112 Mo. 433; see, also, 106 Mo. 423; 108 Mo. 480. Again, it was error to hold the deceased guilty of contributory negligence on the ground that the wires were equally exposed to both.

Pollard & Werner for respondent.

(1) The abstract required by the rule of this court is intended to stand as a substitute for, and in lieu of, the record, and the latter will not be examined, but the abstract will be relied upon, and the cause decided upon it. Craig v. Scudder, 98 Mo. 664. (2) Where the facts being admitted are not sufficient, together with the inferences which a jury might legally draw therefrom, to support a verdict, on motion, instruction to the jury to find for the defendant is proper. There is no evidence to show that appellant was entitled to recover; there is no evidence tending to show negligence on the part of respondent, and the evidence does show such contributory negligence on the part of deceased as bars a recovery for his death. (3) Deceased was guilty of contributory negligence. Flood v. Tel. Co., 131 N.Y. 603.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

[127 Mo. 80] Gantt, P. J.

This is an action for personal damages, by the widow of Alfred Junior, alleged to have been caused by the defendant's negligence in leaving its electric wires defectively and insufficiently insulated and covered, whereby her husband, who was a lineman in the employment of defendant, came in contact with said wires on the first day of December, 1890, while in the discharge of his duties as lineman, and was killed.

The answer was a general denial, plea of contributory negligence on the part of deceased in the careless handling of the wires and his neglect to wear the rubber gloves furnished him by defendant, the same being perfect nonconductors of electricity, and that it was the duty of deceased as a lineman to observe and know the condition of the...