85 S.W. 99 (Mo.App. 1905), Winkelman v. Kansas City Electric Light Company
|Citation:||85 S.W. 99, 110 Mo.App. 184|
|Opinion Judge:||ELLISON, J.|
|Party Name:||LEE WINKELMAN, Respondent, v. KANSAS CITY ELECTRIC LIGHT COMPANY, Appellant|
|Attorney:||Boyle, Guthrie & Davison for appellant. I. N. Watson and D. W. Brown for respondent.|
|Case Date:||February 06, 1905|
|Court:||Court of Appeals of Missouri|
Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.
(1) The plaintiff pleaded a liability by reason of the alleged violation of an ordinance. No evidence of any ordinance was introduced. The plaintiff was permitted to recoved on an alleged common law liability. This he was not entitled to do under the pleadings. McManamee v. Railroad, 135 Mo. 447; Holliday v. Jackson, 21 Mo.App. 660; Hansberger v. Railroad, 43 Mo. 196; Kansas City v. Hart, 60 Kan. 684; Railroad v. Wyler, 158 U.S. 285. (2) The plaintiff should not have been permitted to recover under an instruction stating that the defendant would be liable in case of the existence of the defect, if it knew or should have known thereof, in the absence of evidence showing knowledge or duty to know. Marr v. Bunker, 92 Mo.App. 651. (3) Under the evidence in this case, the court erred in giving the plaintiff's second instruction that it was the duty of the defendant to use every precaution which was accessible to insulate these wires at the point where the accident occurred. Geismann v. Electric Co., 173 Mo. 678. (4) The court erred in refusing the defendant's third instruction to the effect that if the defendant used the best insulation procurable for the purpose; that it had been there such a length of time that men familiar with the business would not have expected it to have deteriorated and that it was in fact in good condition; and that the injury occurred because of a concurrence of special circumstances not reasonably to be expected, plaintiff could not recover. Skipton v. Railroad, 82 Mo.App. 134; Graney v. Railroad, 157 Mo. 683; Fuchs v. St. Louis, 167 Mo. 620; Kane v. Falk Co., 93 Mo.App. 209. (5) The plaintiff, by his own testimony, was guilty of contributory negligence, which was therefore a question for the court, and the peremptory instruction for the defendant should have been given. Poindexter v. Paper Co., 84 Mo.App. 352; Harff v. Green, 168 Mo. 308; Davies v. Railroad, 159 Mo. 7; Roberts v. Telephone Co., 166 Mo. 384; Holding v. St. Joseph, 92 Mo.App. 143.
(1) If there was a variance between the cause of action alleged and the evidence introduced it was waived by defendant. It should have proceeded as provided in section 655, Revised Statutes 1899, and filed an affidavit as therein required. Olmstead v. Smith, 87 Mo. 602; Ridenhour v. Railroad, 102 Mo. 270; Bank v. Leyser, 116 Mo. 51; Howard Co. v. Baker, 119 Mo. 406. (2) There was no variance because the petition stated a good common law action for negligence leaving out the ordinance. In short, the...
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