46 S.W. 968 (Mo. 1898), Gannon v. Laclede Gas Light Company
|Citation:||46 S.W. 968, 145 Mo. 502|
|Opinion Judge:||Robinson, J. --|
|Party Name:||Gannon v. Laclede Gas Light Company, Appellant|
|Attorney:||Henry Hitchcock for appellant. T. J. Rowe for respondent.|
|Judge Panel:||Robinson, J. Gantt, C. J., Burgess and Williams, JJ., concur. Sherwood, Brace and Marshall, JJ., dissent. To be logical and consistent under our Constitution and laws, we think the only course that can properly be pursued and maintained is, that all questions of facts, in suits at law, must final...|
|Case Date:||July 06, 1898|
|Court:||Supreme Court of Missouri|
Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel, Judge.
(1) No rule of law is better settled than that the negligence proved must conform to that charged in the petition; and a fortiori, that if the plaintiff fails to prove the negligence alleged against the defendant, a demurrer to the evidence should be sustained. Gurley v. Railroad, 93 Mo. 445; Haynes v. Trenton, 108 Mo. 123; Buffington v. Railroad, 64 Mo. 246; Price v. Railroad, 72 Mo. 414; Waldhier v. Railroad, 71 Mo. 514; Leslie v. Railroad, 88 Mo. 54. (2) A verdict which has no substantial evidence to support it ought to be set aside; and if the trial court will not do so, on appeal to this court a judgment on such a verdict will be reversed and in such case this court will reverse the judgment without remanding the cause. Reichenbach v. Ellerbe, 115 Mo. 588; Long v. Moon, 107 Mo. 334; Carroll v. Inter-State, etc., Co., 107 Mo. 653; Hunt v. Railroad, 89 Mo. 607; Spohn v. Railroad, 87 Mo. 74; Powell v. Railroad, 76 Mo. 83; Commissioners v. Clark, 94 U.S. 284; Hearne v. Keath, 63 Mo. 84; Schmeiding v. Ewing, 57 Mo. 78; Doering v. Saum, 56 Mo. 479; Routsong v. Railroad, 45 Mo. 236; Nelson v. Boland, 37 Mo. 432; Morris v. Barnes, 35 Mo. 412. (3) It is insisted for appellant, that there was no substantial evidence, nor any evidence whatever, offered by plaintiff tending to show either: (a) That the wires in question became broken in two or fell to the pavement of said alley in consequence of any negligence on the part of the defendant or its agents, or that defendant was chargeable with any negligence or carelessness in that regard; or (b) that on said day defendant or its agents knew, or ought by the exercise of any care or caution to have known, that said wires were so broken and down, at or before the time when Gannon was killed; or (c) that defendant or its agents, with knowledge or notice, actual or constructive, that said wires were so broken and down in the alley, did negligently permit said wires or any of them to remain so broken and down in said alley for a long time, or for any time after such notice to it; or (d) that the death of said Gannon was caused or in any degree contributed to by such negligence as aforesaid on the part of defendant or its agents in that behalf. (4) In default of such evidence, there was an entire failure of proof by the plaintiff of the cause of action alleged in her petition. (5) The circuit court therefore erred (a) in refusing to instruct the jury, at the close of plaintiff's case, that on the pleadings and evidence, their verdict should be for defendant; and (b) in refusing to instruct the jury, at the close of all the testimony, that upon the pleadings and all the evidence plaintiff could not recover.
(1) Plaintiff made a prima facie case when she proved that her husband met his death on a public highway by coming in contact with a deadly fluid placed on the highway by the defendant. Buesching v. Gaslight Co., 73 Mo. 220; Clarke v. Famous Shoe Co., 16 Mo.App. 464; Kirkpatrick v. Knapp & Co., 28 Mo. 427; Julia Building Ass'n v. The Bell T. Co., 88 Mo. 258. (2) It was gross negligence on the part of the defendant to transmit a dangerous and deadly fluid on wires strung seven feet from a wooden barn that was apt to take fire and melt the wires and cause them to fall into a public highway, and when it was notified of the fire, to neglect to cut off the deadly current. Light Co. v. Orr, 59 Ark. 215; Railroad v. Conery, 33 S.W. 426; Girandi v. Electric Imp. Co., 107 Cal. 126; Ahern v. Oregon T. Co., 24 Ore. 276; Haynes v. Gas Co., 114 N.C. 206; Uggla v. Railroad, 160 Mass. 353; Hutchinson v. Boston Gas Light Co., 122 Mass. 219. (3) By reason of the fact that defendant was constantly, both by day and by night, carrying a deadly current of electricity on wires strung along a public highway, it was its duty to use the highest degree of care known to human foresight in putting up and maintaining its wires, and it was a question for the jury, and the jury alone, to determine if the defendant had used the care that a prudent and reasonable man, mindful of the dangerous thing he was handling and the public place where he was handling it, and mindful that it was his duty to use the highest degree of care, would have used under like circumstances.
[145 Mo. 507] In Banc.
This action was begun by the respondent Annie Gannon against appellant to recover $ 5,000 for the death of her husband William Gannon, alleged to have been caused by the fault of the defendant company, as set out in her petition, containing the following substantial averments:
"That the Laclede Gas Light Company, defendant, is a corporation under the laws of Missouri, engaged in the business of furnishing and selling electric light throughout the city of St. Louis, Missouri; that in conducting said business the defendant had erected and strung upon poles along the streets and alleys of said city wires charged with a certain dangerous and life-destroying fluid and current known as electricity. And that on the 18th day of April, 1894, on a certain public highway of said city, to wit, in an alley running east and west through the block bounded on the north by Sheridan avenue, on the south by Thomas street, on the east by Elliot and on the west by Leffingwell avenue; through and along which alley it then and there had erected and maintained as aforesaid its said [145 Mo. 508] wires as aforesaid charged with electricity in the conduct of its said business; and at a point in said alley in the rear of residence No. 2737 Thomas street the defendant negligently and carelessly permitted its said wires, to the number of six or seven, then and there charged as aforesaid, to become broken in two and to fall to the pavement of said alley, and to remain broken in two and down for a long time then and there while full charged with electricity as aforesaid, when it knew, or ought by the exercise of any care and caution to have known, that the said wires were so as aforesaid broken and down and liable if touched by any human being while so broken down and charged as aforesaid to destroy human life. And plaintiff states that while the said wires were then and there in said alley broken in two and down and charged as aforesaid, her said husband, while walking along in the said alley at said point, struck with his foot against one of said defendant's said wires and was thereby instantly killed by the fault and recklessness and carelessness of the said defendant then and there in the premises as aforesaid, to her damage in the sum of $ 5,000, for which sum plaintiff prays judgment."
Defendant's answer was a general denial coupled with a plea of contributory negligence on part of plaintiff, to which plaintiff replied denying the allegation of new matter contained in defendant's answer.
At the close of plaintiff's testimony in chief the defendant asked the following instructions: "The court instructs the jury that on the pleading and evidence the plaintiff can not recover and the verdict will be for defendant," which being refused, the defendant offered testimony on its part to the effect that the wires belonging to defendant that killed plaintiff were melted or burned in two by reason of a fire originating in a stable that was fronting on the alley, in which its wires [145 Mo. 509] were strung; that said fire was not caused by the wires and that its origin was unknown; that the defendant was not notified of the existence of the fire or that its wires were broken down in the alley where the fire occurred until after plaintiff's husband had been killed; and that said wires were down upon the ground in the alley only a short while before plaintiff's husband was killed; that there was no appliance at defendant's power house at the time to indicate when one of its wires was grounded; and that defendant had at the time of the fire a contract with the city for lighting certain streets and alleys with electricity, and also certain public and private institutions which required it to keep in operation during the day a constant current of electricity passing over its wires.
At the close of all the testimony in the case, defendant again prayed the court to instruct the jury "that upon the pleading and all the evidence the plaintiff can not recover," which being refused, the jury under proper instructions submitted by the court found a verdict for plaintiff for $ 3,000 on which in due time judgment was entered, and to reverse which on account of error alleged in refusing defendant's two peremptory instructions this case is here. No objection is made now to the proposition of law announced in the instructions given by the court, if the refusal of defendant's instruction at the close of the case is held good. The sole controversy has grown out of the application of the law to the facts under the peculiar averments of the petition.
The plaintiff to sustain her case offered testimony tending to show that William Gannon in respect to whose death this action was begun, was the husband of plaintiff; that he came to his death by stepping upon an electric wire belonging to the defendant company that was broken in two and lying upon the ground [145 Mo. 510] in one of the public alleys of the city of St. Louis, charged with an electric current of more than double the voltage necessary to kill a human being; that plaintiff's husband was at the time in the...
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