Epperson v. Postal Telegraph Cable Company

Decision Date27 March 1900
Citation50 S.W. 795,155 Mo. 346
PartiesEPPERSON v. POSTAL TELEGRAPH CABLE COMPANY, Appellant
CourtMissouri Supreme Court

Rehearing Denied 155 Mo. 346 at 383.

Appeal from Jackson Circuit Court. -- Hon. E. L. Scarritt, Judge.

Reversed.

Gage Ladd & Small for appellants.

(1) Under all the circumstances of this case the evidence affirmatively shows that the foreman was not only guilty of no negligence in inspecting the wire, but that he exercised extraordinary care in so doing before he ordered the plaintiff to ascend the pole. Defendant was not bound to adopt a system of inspection which would absolutely insure plaintiff against injury. In any event, plaintiff knew what inspection had been made, and he made no objection to it therefore, as to him, the inspection was not negligent. Flood v. W. U. Tel. Co., 131 N.Y. 603. (2) The negligence, if any, of the defendant's foreman in inspecting the wires, had nothing to do with the accident. (a) Because the evidence shows that as a matter of fact, there was no current on the wires when the foreman examined them and so informed the plaintiff, consequently the most diligent inspection on his part could not have discovered the current. Essex v. Kelley, 29 A. 427. (b) There is no claim in the petition and no evidence to prove that the current which injured the plaintiff got upon the wires through any negligence or fault of the defendant, and the court so instructed the jury. Therefore, it must have got upon the wires through the fault of some third person or from lightning. Searle v. Railroad, 101 N.Y. 661; Breen v. Cooperage Co., 50 Mo.App. 202; Baltimore & C. R. R. Co. v. Reaney, 42 Md. 117. (c) The real cause of the accident was the dangerous current on the wire. That is what injured the plaintiff. That was the proximate cause. There was no defect in the construction or operation of the defendant's plant, and the current was not brought upon the wires through any fault or negligence of the defendant, and the court so instructed the jury and they must therefore have so found. Therefore, the current which injured the plaintiff must have arisen from a pure accident, or from the act of God, or the fault of a third party. In neither event was defendant liable.

Wash Adams and N. F. Heitman for respondent.

(1) Knowledge on the part of the defendant, of the presence in the wires of the unusual and dangerous intermittent current of electricity, cast upon the defendant the duty of exercising ordinary care, to the end that plaintiff, its servant, should not be exposed to the danger of handling these wires, while it was reasonable to suppose this dangerous current might be present or recur therein. The master must not only use reasonable care in furnishing his employes safe appliances with which to perform their duties, but he must also use reasonable care in keeping them in repair and in safe condition. Parker v. Railroad, 109 Mo. 392; Gutridge v. Railroad, 105 Mo. 525; Parsons v. Railroad, 94 Mo. 282; Gardner v. Railroad, 150 U.S. 349. (2) If the master orders the servant into a situation of danger and he obeys and is thereby injured, the law will not deny him a remedy against the master on the ground of contributory negligence unless the danger was so glaring that no prudent man would have entered it even when like the servant, he was not entirely free to choose. Keegan v. Kavanaugh, 62 Mo. 230; 2 Thompson on Neg., 975; Shortel v. Joseph, 104 Mo. 114; Stephens v. Railroad, 96 Mo. 212; Hamilton v. Rich Hill Mining Co., 108 Mo. 364; Aldridge v. Furnace Co., 78 Mo. 565; Warner v. Railroad, 62 Mo.App. 190; McGowan v. Railroad, 61 Mo. 532; Southwest Sel. Co. v. Woughton, 56 Ark. 206; Lee v. Woolsey, 109 Pa. St. 124; Illinois Steel Co. v. Schymanowski, 44 N.E. 879. (3) An assurance from one representing the master that the machinery or apparatus being used is all right, and an order from him to the servant to use it, notwithstanding the complaint of the servant as to its sufficiency amounts to a guaranty of safety and the master will be liable for any injury then resulting from its use. McGowan v. Railroad, 61 Mo. 528; Rowland v. Railroad, 20 Mo.App. 463; Warner v. Railroad, 62 Mo.App. 191; Aldridge v. Furnace Co., 78 Mo. 559; Monahan v. Coal Co., 58 Mo. 680; Keegan v. Kavanaugh, 62 Mo. 230; Stephens v. Railroad, 96 Mo. 207. (4) Although the servant knows of the dangerous condition of the appliance, yet if he reports it to the master and the master promises to remedy it, the servant is justified in continuing its use relying on such promise. Conroy v. Vulcan Iron Works, 62 Mo. 35; Flynn v. Railroad, 78 Mo. 195; Hollornan v. Iron & F. Co., 133 Mo. 480. (5) The risks assumed by the servant do not include such as result from the neglect of the master to discharge his personal duties. Henry v. Railroad, 109 Mo. 493; Gardner v. Railroad, 150 U.S. 549. (6) Mere knowledge of the servant of the danger does not preclude recovery -- such knowledge is only an element of evidence to be considered by the jury. Omellia v. Railroad, 115 Mo. 205; Warner v. Railroad, 62 Mo.App. 190; Stoddard v. Railroad, 65 Mo. 514; Delvin v. Railroad, 87 Mo. 545; Huhn v. Railroad, 92 Mo. 440.

SHERWOOD, J. Robinson and Marshall, JJ., concur. Brace, J., concurs in the result. Gantt, C. J., concurs in the opinion, but not in the rule announced by Day, J. Burgess, J., absent. Valliant, J., not sitting.

OPINION

In Banc.

SHERWOOD J.

Action for $ 10,000 damages for injuries received while acting as lineman for defendant corporation, and through alleged negligence of defendant. The cause was tried on the first count in plaintiff's petition which is nearly seven printed pages in length, and, in substance, the following That defendant, a corporation, was proprietor of, operating and constructing a line of telegraph from Chicago, Ill., to Indianapolis, Ind.; that such line was operated by means of wires stretched on poles, and a large gang of men was employed for the purpose of constructing such line, plaintiff being one of the number, and his duty being to climb poles and stretch wires; that Terwilliger was in charge of the gang of men, acting as foreman; that when within a few miles of Indianapolis, and on the 28th of September, 1891, the foreman negligently and carelessly commanded plaintiff to take the wires so being stretched, ascend the pole and attach the wire to the pole, on which were other wires stretched; that the foreman knew, at the time of giving such command, or by the exercise of ordinary care might have known, that the wire plaintiff was ordered to ascend the pole with was in a dangerous condition by being charged with a dangerous intermittent current of electricity; that the carrying of such wire up the pole and attaching it, etc., would greatly imperil the life or limbs of plaintiff; that the wire thus being strung by the gang employed for the purpose was, and ought to be, a dead wire, without any current of electricity in it, and was expected by the members of such gang to be in that condition; that on the date aforesaid plaintiff observed an unexpected current of electricity in said wire, the existence of which in said wire was contrary to the ordinary course of plaintiff's employment of stringing a new wire through the country, and the risk arising from the existence of such current of electricity in said wire was a risk not ordinarily incident to the employment in which plaintiff was engaged in the stringing of such wire; that on one occasion, on the morning of the day mentioned, plaintiff observed the unexpected current of electricity in said wire, and, notifying the foreman of it, was told by him that if he noticed the existence of the current again he should notify him about it, and the latter would take steps to find out what the trouble was; that on the same morning, having again noticed the current of electricity in the wire, he again notified the foreman of that fact; that the foreman negligently failed to ascertain the cause of the existence of the current in the wire, and to protect plaintiff against such unusual danger; that just before plaintiff started up said pole, having handled the wire all day, only feeling the current of electricity at intervals, he again noticed that the current of electricity was in said wire, and complained to the foreman that "said wire was too strongly charged with electricity to be handled with satisfaction;" that thereupon the foreman picked up the wire, held it in his hands, said he felt nothing in it, and thereupon negligently and carelessly assured plaintiff the wire was all right, and ordered plaintiff to go ahead with his work; that plaintiff, relying on this statement of the foreman, and being lulled into a sense of security thereby, went up said pole in obedience to said order; that after being notified of the intermittent current of electricity in said wire, it became the foreman's duty to investigate and find out the cause of such wire being charged with electricity, etc.; that the foreman did not perform such duty in a careful manner, but negligently failed to do so, after being notified, etc.; that it was also the duty of the foreman to remove the cause of the existence of such current of electricity in said wire, which he could have done by cutting the wire behind the places where plaintiff and other climbers were at work; that this duty, also, defendant negligently failed to perform; that pursuant to the order aforesaid, negligently given, plaintiff, with the wire in his belt, mounted the pole; that when about thirty feet above the ground, while endeavoring to fasten the wire, by means of other wires, to the cross timbers on the pole, he received a shock of electricity from said wire; that it robbed plaintiff of consciousness, and caused him to fall...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT