Matthews v. St. Louis Grain Elevator Co.

• Decision Date: 31 March 1875
• Citation: 59 Mo. 474
• Parties: BRIDGET MATTHEWS, Respondent, v. THE ST. LOUIS GRAIN ELEVATOR COMPANY, Appellant.
• Court: Missouri Supreme Court

59 Mo. 474

BRIDGET MATTHEWS, Respondent,

v.THE ST. LOUIS GRAIN ELEVATOR COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1875.

Appeal from St. Louis Circuit Court.

This case was formerly before this court. See 50 Mo., 149.

Slayback & Haeussler, for Appellant.

If defendant did remove the earth from about the pole, Matthews knowing the fact, and being aware of what he was doing, his own negligence was the immediate cause of his own misfortune. And the fact of defendant having removed the earth, was a circumstance too remote in the order of causation for plaintiff to recover. (Cuff vs. Newark & N. Y. R R. Co., 6 Vroom, [N. J.] R. 32; Fitzsimmons vs. Inglis, 5 Taunt., 534; 4 C. & P., 262; 11 C. B. [N. S.] 142; 11 Metc., 542; 35 N. H. 271; 8 Ohio St., 570; 14 C. B., 411; 20 Penn. St., 171; 1 H. & C. 152; 26 Ala., 189.)

Morris & Peabody, for Respondent.

The court's instruction was wrong. The fact that Matthews knew of the condition of the pole, or might by proper diligence have known of its condition, was not itself proof of negligence in climbing it. Whether under the circumstances he was negligent, was a question to be submitted to the jury. (See S. C., 50 Mo., 149; Smith vs. St. Jo., 45 Mo., 449; Smith vs. City of Lowell, 6 Allen, 39; Reed vs. Inhab. Northfield, 13 Pick., 94; Clayards vs. Dettrick, 12 Ad. & El., 439; Maloney vs. Met. R. R. Co., 104 Mass., 73; Newson vs. N. Y. Cent. R. R. Co., 29 N. Y., 383.)

NAPTON, Judge, delivered the opinion of the court.

This action is one instituted by the widow of John Matthews, to recover the statutory penalty of $5,000, on account of her husband's death, which she claims occurred through the negligence of this defendant.

The case was submitted to a jury on instructions, and the jury found a verdict for the defendant. The only point upon which the case comes here, is, that the instructions were wrong.

The facts seem to be in the main quite clear. The Elevator Company had at their office a connexion with the main lines of the Telegraph Co., by means of a wire called a “guy,” and designing to remove their office for a short distance, they requested the telegraph company to send some one to remove the pole, on which the wires were suspended, to a place more convenient for keeping up the connexion with their office. John Matthews, who had been for years employed in business of this kind by the telegraph company, was sent to attend to this. He went up the pole by the aid of spikes on his feet, and after cutting the wires at a hight of twenty feet, the pole came down, and the forceps which he had in his hand, to cut the wires with, penetrated his skull and killed him instantly.

The pole had originally been placed there under the supervision of Matthews, at a depth of five feet, but the elevator company had graded down the ground around their office three or four feet, and the pole was at the time only sixteen inches in the ground. And the question was, whether this excavation of the ground around the pole made the elevator company responsible for negligence immediately contributing to the death of Matthews, or whether the deceased was guilty of negligence in attempting to climb the pole and cut the wires. The grading down of the ground was apparent to any one; and Matthews was in the habit of visiting the office frequently.

There was some evidence in the examination of plaintiff's first witness, which tended to show that Matthews did not follow instructions in the mode he adopted to remove the telegraph pole without disturbing the transmission of messages. But this point was submitted to the jury on instructions to which no objections are taken.

The instruction given by the court was this: “If the jury believe from the evidence, that John Matthews, the husband of plaintiff, went upon lands in the possession of defendant, for the purpose of removing a telegraph pole, for the accommodation of defendant, by the direction of the agent of the Western Union Tel. Co., given at defendant's request, and so went by permission of defendant; that defendant had previously removed the earth from around the pole so carelessly and negligently as to render the pole dangerous to climb; that in the usual mode of performing the work of removing that pole, Matthews had to climb it; that he did climb the pole in the performance of the work, and proceeded to perform it in a careful and proper manner, and that solely by reason of the negligence of defendant in the removal of said earth, the pole fell, and thereby John Matthews was killed, the jury will find for the plaintiff, unless they believe from the evidence that Matthews knew of the condition of the pole, or might by proper diligence have known its condition, or otherwise by his negligence directly contributed to produce the fall or his death.”

The only objection to the instruction is, that the liability of defendant is placed “solely” on the removal of the earth around the pole, and the jury are told that the plaintiff's right of action...