73 S.W. 654 (Mo. 1903), Geismann v. Missouri-Edison Electric Company

Citation:73 S.W. 654, 173 Mo. 654
Opinion Judge:BURGESS, J.
Party Name:GEISMANN v. MISSOURI-EDISON ELECTRIC COMPANY, Appellant
Attorney:Albert Blair and Gilliam & Smith for appellant. L. Frank Ottofy and Jesse A. McDonald for respondent.
Case Date:March 31, 1903
Court:Supreme Court of Missouri
 
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Page 654

73 S.W. 654 (Mo. 1903)

173 Mo. 654

GEISMANN

v.

MISSOURI-EDISON ELECTRIC COMPANY, Appellant

Supreme Court of Missouri, Second Division

March 31, 1903

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

Affirmed.

Albert Blair and Gilliam & Smith for appellant.

(1) After the exclusion of the ordinances there was nothing left in the petition, and defendant's demurrer to the evidence should have been sustained. Waldhier v. Railroad, 71 Mo. 516; Schneider v. Railroad, 75 Mo. 595; Watson v. Railroad, 133 Mo. 246; McManamee v. Railroad, 135 Mo. 440; McCarty v. Rood Hotel Co., 144 Mo. 402; San Antonio Gas & El. Co. v. Speegle, 60 S.W. 884. (2) There was clearly contributory negligence by plaintiff's husband, and for that reason defendant's demurrer to the evidence should have been sustained. Church v. Railroad, 119 Mo. 215; Baker v. Railroad, 122 Mo. 589; Hickman v. Railroad, 47 Mo.App. 65; Smith v. Railroad, 60 Mo.App. 207; Weaver v. Railroad, 60 Mo.App. 207; McCarty v. Rood Hotel Co., 144 Mo. 397; Schweitzer's Adm'r v. Gen. Elec. Co., 52 S.W. 830; Cook v. Wilmington City Elec. Co., 9 Houst. (Del.) 306, 32 A. 643; Leduke v. Railroad, 4 Mo.App. 485; Carroll v. Interstate Rapid Transit Co., 107 Mo. 153; O'Donnell v. Patton, 117 Mo. 13; York v. Railroad, 117 Mo. 405; Corcoran v. Railroad, 105 Mo. 399; Junior v. Elec. Light & Power Co., 127 Mo. 79; Craig v. Sedalia, 63 Mo. 417; Fugler v. Bothe, 117 Mo. 405. (3) There was absolute lack of evidence that insulation on defendant's wire was out of repair or worn off, where, or near where, Geismann was standing when he fell, and for that reason the demurrer to the evidence should have been sustained. Hipsley v. Railroad, 88 Mo. 348; Bowles v. Kansas City, 51 Mo.App. 420; Nivette v. Railroad, 42 La. Ann. 1153. (4) The evidence raises a mere conjecture, without substantial evidence to support it, and for that reason the demurrer to the evidence should have been given. Perse v. Railroad, 51 Mo.App. 171; Drake, Adm'r, v. Critz, 83 Mo.App. 650. (5) Plaintiff's first instruction is not specific enough in restriction of evidence to allegations of the petition, and does not lay just ground upon which to hold defendant liable for negligence, and is therefore erroneous; and it ignores the evidence of the injury to the wire by plaintiff's husband and his associates, and practically ignores contributory negligence. Clements v. Elec. Light Co., 44 La. Ann. 692, 4 Amer. Elec. Cas., 386; Griffin v. United Elec. Light Co., 164 Mass. 492; Raysdon v. Trumbo, 52 Mo. 35; Chappell v. Allen, 38 Mo. 213; Young v. Webb City, 150 Mo. 342. (6) Plaintiff's second instruction has the same vices as the first, and gave no proper instructions as to Geismann's duty in view of his knowledge of the condition of the wire nor of defendant's duties and obligations in regard to the wire, and is erroneous therein; and it alleged a duty to insulate and protect the wire which was not in the petition. Carder v. Primm, 60 Mo.App. 423; Raysdon v. Trumbo, 52 Mo. 35; Chappell v. Allen et al., 38 Mo. 213; Clements v. Elec. Light Co., 44 La. Ann. 692; Chitty v. Railroad, 148 Mo. 64. (7) Plaintiff's third instruction is erroneous in limiting the appearance of the wire to the place where Geismann was standing, and making that appearance an invitation and inducement for him to risk contact with the wire. And it tendered an issue not made in the pleadings. It was also too abstract, failed to set out suitable facts and ignored the defense of contributory negligence, and said third instruction was misleading. Chappell v. Allen, 38 Mo. 213; Clements v. Elec. Light Co., 44 La. Ann. 692; Newark Elec. Light Co. v. Garden, 6 Amer. Elec. Cas., 275; Melvin v. Railroad, 89 Mo. 106; Bradley v. Railroad, 138 Mo. 293; Hector v. Boston Elec. Light Co., 161 Mass. 558; s. c., 174 Mo. 212; Chitty v. Railroad, 148 Mo. 64. (8) Plaintiff's fifth instruction is erroneous because of its generality and giving the jury no proper basis or grounds upon which to compute plaintiff's damages. Kick v. Doerste, 45 Mo.App. 141; Goss v. Railroad, 50 Mo.App. 614; Schaub v. Railroad, 106 Mo. 74; McGowan v. St. Louis Ore & Steel Co., 109 Mo. 518; Schmitz v. Railroad, 46 Mo.App. 394. (9) The court erred in modifying defendant's eighth instruction by inserting the words "defective or noninsulated," and the words "was at some point or points not properly insulated." San Antonio Gas & Elec. Co. v. Speegle, 60 S.W. 884. (10) The verdict is the result of passion and prejudice on the part of the jury. Hamman v. Cen. Coal & Coke Co., 156 Mo. 245; Chitty v. Railroad, 148 Mo. 64. (11) The verdict is against the weight of the evidence as to negligence of defendant and contributory negligence by plaintiff's husband. (12) Defendant could not reasonably have anticipated any such accident and therefore was not negligent in not providing against it. Hysell v. Swift & Co., 78 Mo.App. 39; Block v. Railroad, 89 Wis. 378; Huber v. Railroad, 6 Amer. Elec. Cases, 293; McMillan v. Illuminating Co., 5 Amer. Elec. Cases, 332.

L. Frank Ottofy and Jesse A. McDonald for respondent.

(1) With the municipal ordinances excluded, a complete case of negligence is described and charged against defendant by the petition, and the evidence was conclusive and conformed to the pleading. Gannon v. Laclede Gas Light Co., 145 Mo. 511; Knox County v. Groggin, 105 Mo. 182; Morrow v. Susber, 97 Mo. 155; Radcliffe v. Railroad, 90 Mo. 127; Kehoe v. Taylor, 31 Mo.App. 588. (2) The defendant was required under the law, in view of the dangerous character of its wires, to exercise the highest degree of care to prevent injury to the deceased who was engaged in a lawful occupation, in a place where he was entitled to be. Appellant should, therefore, not complain that the case was submitted to the jury on a series of comprehensive instructions, requiring of it only ordinary care and prudence. Gannon v. Laclede Gas Light Co., 145 Mo. 512; Perham v. Portland General Electric Co., 33 Oregon 471; Clements v. Electric Light Co., 44 La. Ann. 692; Newark Electric Light and Power Co. v. Garden, 78 F. 74; Ennis v. Gray, 87 Hun 355; Giraudi v. Improvement Co., 107 Cal. 120; Griffin v. Electric Co., 164 Mass. 492; McLaughlin v. Light Co., 100 Ky. 173; Railroad v. Conery, 33 S.W. 428; Haynes v. Gas Co., 114 N.C. 203; O'Donnell's Adm. v. Electric Light Co., 55 S.W. 202; Thompson on Electricity, sec. 65. (3) The evidence clearly shows improper construction of defendant's wires, so that the insulation was liable to become worn off and the current exposed, and that the insulation had, in fact, become defective at various points along the wires. The testimony of defendant's witnesses does not in any manner contradict this proof, but on the contrary, strongly supplements and corroborates it. (a) There was ample evidence that deceased received an electric shock from contact with the defendant's wire. Dwyer v. Buffalo Electric Co., 46 N.Y.S. 874; Buesching v. St. Louis Gas Light Co., 73 Mo. 219. (b) The mere fact that deceased received an electric shock from contact of the wire in his hand with defendant's wire is prima facie proof of negligence. The doctrine of res ipsa loquitur applies. Snyder v. Wheeling El. Co., 43 W.Va. 661; Clarke v. Nassau El. Co., 41 N.Y.S. 78. (c) But in this case it is not necessary to rely upon the doctrine of res ipsa loquitur. There was direct proof of negligence, and it was not necessary to prove the exact point of contact, nor to show in detail the extent of the defect in the insulation. Griffin v. United Elec. Lt. Co., 164 Mass. 492; Schultz v. Faribault Con. & Gas Co., 82 Minn. 100. (4) There is no evidence of contributory negligence such as could, as a matter of law, bar plaintiff's recovery, and that question was fully and fairly submitted to the jury. O'Mellia v. Railroad, 115 Mo. 205; Giraudi v. Elec. Imp. Co., 107 Cal. 120; Griffin v. United El. Lt. Co., 164 Mass. 492; Dwyer v. Buffalo Genl. Elec. Co., 46 N.Y.S. 883; Barry v. Railroad, 98 Mo. 62. (5) There is no claim made by appellant that plaintiff's first instruction does not state the law sufficiently favorable to it, and the law, as stated, is properly applied to the facts proved. Defendant's theory of the case was correctly presented to the jury in its own instructions. State ex rel. v. Hope, 102 Mo. 426; Henry v. Railroad, 113 Mo. 536; Spillane v. Railroad, 111 Mo. 565; Muehlhausen v. Railroad, 91 Mo. 346; McGrew v. Railroad, 109 Mo. 590. (6) Plaintiff's third instruction lays down an abstract proposition of law, which is correct under the authorities cited by appellant and additional cases cited herein. It does not purport to cover the whole case and authorize a recovery, and must be read in connection with the other instructions. It was no more than saying that Geismann had a right to presume, from the fact of apparent insulation, that defendant discharged its duty by properly insulating the wire. Clements v. El. Lt. Co., 44 La. Ann. 692; Newark El. Lt. Co. v. Garden, 78 F. 74; Perham v. Portland Gen. Elec. Co., 33 Oregon 451; McLaughlin v. Light Co., 100 Ky. 173; Perrette v. Kansas City, 162 Mo. 238; Estes v. Fry, 22 Mo.App. 88; Alberger v. White, 117 Mo. 362; Noble v. Blount, 77 Mo. 240. (7) The appellant argues that the fifth instruction given at plaintiff's request is erroneous in that it fails to furnish the jury a proper basis or ground upon which to compute plaintiff's damages, and cites a number of opinions of the Courts of Appeal in support of its argument. This court has expressly approved the instruction in Barth v. Railroad, 142 Mo. 555; Browning v. Railroad, 124 Mo. 55; Tetherow v. Railroad, 98 Mo. 74. (8) The defendant being found maintaining defective and non-insulated wires, carrying a dangerous and deadly voltage of electricity in a place where it is apparent to ordinary prudence that...

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