Geismann v. Missouri Edison Electric Co.

• Citation: 173 Mo. 654,73 S.W. 654
• Parties: GEISMANN v. MISSOURI EDISON ELECTRIC CO.
• Decision Date: 17 March 1903
• Court: United States State Supreme Court of Missouri

73 S.W. 654

173 Mo. 654

GEISMANN v. MISSOURI EDISON ELECTRIC CO.

Supreme Court of Missouri, Division No. 2.

March 17, 1903.

ELECTRICITY—NEGLIGENCE CAUSING DEATH—UNINSULATED WIRES—DUTY OF COMPANY— CONTRIBUTORY NEGLIGENCE—FAILURE TO TAKE PRECAUTIONS—KNOWLEDGE OF DANGER—SUFFICIENCY OF PETITION—MEASURE OF DAMAGES — INSTRUCTIONS — EXCESSIVE DAMAGES.

1. A petition for negligent death, averring that deceased, while in the line of his duty and in the exercise of due case, came in contact with one of defendant's electric wires, upon which the insulation had, through defendant's negligence, been permitted to become out of repair, so that the current had become exposed, in consequence of which deceased received a shock, etc.; that the wire had been out of repair and the current exposed a long time prior to the date of the accident, which fact defendant knew, or by the exercise of ordinary care might have known, etc.—states a cause of action.

2. Whether a laborer engaged in taking down a sign from a building was guilty of contributory negligence in coming in contact with an electric wire was a question for the jury.

3. It is the duty of an electric lighting company to use every accessible precaution to insulate its wires at all points where people have the right to go, and to use the utmost care to keep them so insulated.

4. The fact of death from contact with electric wires at a place where deceased had a right to be and might be expected to be is conclusive proof of defective insulation and of the negligence of defendant.

5. A petition averring that death was caused by contact with one of defendant's electric wires, upon which the insulation had, through defendant's negligence, become worn off, and the current exposed, and that the defect had existed for a long time prior to the date of the accident, which defendant knew or might have known, was sufficiently broad to justify an instruction that it was incumbent on defendant to keep its wires reasonably safe.

6. It is the duty of an electric light company to keep its wires safe. It is not enough that they be kept reasonably safe.

7. An instruction that, if electric wires where deceased was standing had the appearance of being properly insulated, it was an inducement to risk contact with them, though it simply announced an abstract proposition of law, and did not purport to cover the whole case, was not prejudicial.

8. An instruction on the measure of damages for negligent death, that the jury might assess such damages as they deemed fair and just, not exceeding $5,000, on which point defendant asked for no instructions or modification, was not error.

9. In an action for death resulting from contact with a defectively insulated electric wire, an instruction on the negligence of decedent in failing to wear a rubber coat, boots, or gloves was properly limited by a qualification as to their practicability in his situation as a sign hanger.

10. Defendant requested an instruction that if decedent knew or ought to have known of the danger resulting from contact with an uninsulated wire, and the wire was seen or should have been seen by him, and he negligently came in contact therewith, the verdict should be for defendant. The instruction was given with the modification, "and knew that defendant's wire was at some point not properly insulated." Held, that the modification was not misleading or prejudicial.

11. In an action for negligent death, where the evidence was that deceased was a man 37 years of age, earning $9 a week, and left a wife and four children, a verdict of $5,000 was not excessive.

12. In an action for negligent death, resulting from contact with an electric wire, it was not necessary for plaintiff to prove, in order to recover, that at the exact point of contact the insulation was off the wire.

Appeal from Circuit Court, St. Louis County; Rudolph Hirzel, Judge.

Action by Emma Geismann against the Missouri Edison Electric Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action by plaintiff, who is the widow of Bernard Geismann, against defendant company, to recover $5,000 damages for the negligent killing of her husband in the city of St. Louis on the 24th day of January, 1898. At the time of the accident the deceased was a laborer, engaged in hanging and removing signs. The defendant at that time was a lighting corporation, engaged in supplying electric light and electric power to consumers in the city of St. Louis. The deceased was an employé of a concern known as Schurk General Ironworks, in the capacity of laborer, and as such it was his duty to hang or remove signs in different parts of said city. He was sent by his employers, with other workmen, to remove a sign which was hanging in front of the store numbered 111 North Broadway, in said city, which was occupied by a tailor doing business under the name of "Brooks, the Tailor." The petition sets out several ordinances of the city of St. Louis regulating the placing of electric wires, etc., and then alleges their violation by defendant; but, as they were eliminated from the case by the ruling of the court, it is unnecessary to say more with respect to them. The case therefore rests on the subsequent averments of the petition of the defendant's negligence, which are that while the deceased, without negligence on his part, was, on the day mentioned, engaged, in the line of his duty, in removing the sign, "one of the loosened wires with which the sign had been attached to the building immediately over the front of said store came in contact with one of the said wires of defendant, upon which said wire the insulation had, through negligence and carelessness of the defendant, and in violation of the said ordinances and provisions aforesaid, been permitted to become out of repair and worn off to an extent that the dangerous and deadly electric current passing through the same had become exposed and dangerous to those required to be thereabout, and in consequence thereof the said Bernard Geismann received an electric shock from said exposed current, which caused him to lose consciousness, thereby precipitating him upon his head to the stone pavement, some fifteen feet below, and inflicting injuries by reason whereof he died on the 3d day of February, 1898; that said wire had, through the negligence of defendant, been permitted to become out of repair, and the insulation thereof to be worn off, and the dangerous current passing through the same to be exposed, for a long time prior to said 24th day of January, 1898, which facts defendant knew, or by the exercise of ordinary care on his part might have known, but that the said Bernard Geismann, owing to his inexperience with electric wires and currents, did not know, and by the exercise of ordinary care on his part could not have discovered." The answer admitted the defendant's corporate existence, and put in issue all the other allegations of the petition, and further stated (1) that the deceased did not receive a shock from an electric wire that caused him to fall; (2) that he was negligent in approaching the wires mentioned in the petition, because they were strung far above the reach of persons passing along the sidewalk, and, if said wires were bare of insulation, the deceased, by the exercise of ordinary care, could have known that fact, and he was therefore negligent in approaching the wires, for the purpose he did, without first assuring himself that the insulation thereof was in good condition; and (3) that he was guilty of negligence in approaching defendant's said wires, they being of the size and appearance of those usually employed to conduct electric currents of high tension and of dangerous character, and then handling other wire, without first providing himself with a coat, gloves, and foot gear of rubber. All the new matter of the answer was denied by the reply.

The facts as disclosed by the evidence are about as follows: Deceased was at the time of his injury 37 years of age, and was earning $9 per week in putting up and taking down signs. He had a wife and four children who were dependent upon him for support. On the day of the accident, deceased and two other men were sent by his employer to take down a wooden-frame, canvas-covered sign, about 3 feet in width and 10 feet in length, and weighing 25 to 35 pounds. The sign was suspended about 22 feet from the sidewalk, and at the top of the first story of a building abutting on the public street. The back or lower part of the sign was nailed to the tailor's sign, and the front or upper side was supported by guy wires 15 to 18 feet long, which were attached to the building in the recesses on either side of the bay window. The front of the building was 26 feet in length, on a north and south line with a bay window about 8 feet wide, extending out about 2 feet 8 inches from the second story line. The sign in question had been taken off the building and replaced three or four times, and it had been up only four to six weeks when the deceased and his companions were sent to take it down. There was evidence that Schurk, deceased's employer, had repeatedly cautioned his men (among them, the deceased) to "take care of electric wires about their work," and that the deceased had worked about electric wires, in putting up and taking down signs, once or twice a week during the time he was in that employ. Corrigan, with whom the deceased had worked, did not know whether he knew the danger of electricity. They had never talked about the danger of electricity. It was a bright, dry day. Defendant introduced evidence tending to show that rubber gloves, coats, and boots were a safeguard to persons working about electric wires, and that the deceased had not provided himself with such clothing. The plaintiff's witnesses testified that sign hangers could hardly wear rubber coats, gloves, and boots at their work, and that such clothing was never worn by men engaged in...