93 S.W. 951 (Mo. 1906), Harrison v. Kansas City Electric Light Co.
|Citation:||93 S.W. 951, 195 Mo. 606|
|Opinion Judge:||MARSHALL, J.|
|Party Name:||HARRISON v. KANSAS CITY ELECTRIC LIGHT COMPANY, Appellant|
|Attorney:||Harkless, Crysler & Histed for appellant. Morgan & Schibsby and Boyle, Guthrie & Smith for respondent.|
|Case Date:||April 20, 1906|
|Court:||Supreme Court of Missouri|
Appeal from Jackson Circuit Court. -- Hon. James Gibson, Judge.
(1) It is well settled that in determining the question of negligence it must be decided with reference to the duty that the defendant owes to the injured, and not its duty to others, generally. Feeback v. Railroad, 167 Mo. 215; Roddy v. Railroad, 104 Mo. 234. (2) It is error to admit evidence tending to show negligence on the part of the defendant in reference to matters wholly foreign to and unpleaded in the petition. Conway v. Railroad, 24 Mo.App. 235; Hicks v. Railroad, 68 Mo. 329; Brooks v. Blackwell, 76 Mo. 309. (3) The proximate cause of this accident was not the negligence of defendant, but was the affirmative act of the trespasser, Harold Harrison, in diverting the electricity from the public streets and carrying it inside of the residence of the deceased. Witte v. Stifel, 126 Mo. 295; Fuchs v. St. Louis, 167 Mo. 620; Hector v. Boston El. Co., 174 Mass. 212; Light Co. v. Koepp, 64 Kan. 735; Railroad v. Kellogg, 94 U.S. 469; Diesenreiter v. Kraus, 96 Wis. 286; Cole v. German, 124 F. 113. (4) Instruction 1 given for plaintiff was clearly erroneous for the following reasons: First. It made defendant respond simply if the jury found that somebody was liable to divert the current. Second. It made defendant respond if there was a probability that it would be diverted. Third. It made the defendant liable if the jury found that the current was transmitted under circumstances claimed by plaintiff, and thus referred the jury to the indefinite proposition as to what plaintiff might claim. Fourth. It submitted to the jury the question for them to determine whether the act of defendant was the proximate cause of the death, when it should have been the duty of the court to have informed the jury what would constitute proximate cause and would make defendant liable, and not leave it to them to declare the law as to what constituted proximate cause. Fifth. It positively assumes upon its face as a fact established that "two grounds" had existed, and that it was "so grounded at two places as to divert sufficient electricity to kill a man."
(1) Persons, who for their own private gain or profit send the dangerous agency, electricity, out into the streets and alleys of a city, are bound to use the utmost care in preventing the escape from the wires of the electrical current to the injury of others. Geismann v. Electric Co., 173 Mo. 678; Winkelman v. Electric Light Co., 110 Mo.App. 184; Girarandi v. Electric Imp. Co., 107 Cal. 124; Haynes v. Gas Co., 114 N.C. 211; McLaughlin v. Louisville Electric Light Co., 100 Ky. 173; Perham v. Portland Electric Co., 33 Ore. 451; 1 Thompson on Negligence (2 Ed.), sec. 797; Denver Electric Co. v. Simpson, 21 Colo. 371; Leavenworth Coal Co. v. Ratchford, 5 Kan.App. 150; Frauenthal v. Gas Light Co., 67 Mo.App. 8; Larson v. Railroad, 56 Ill.App. 267. (2) Such persons are bound to the utmost care in inspecting the wires carrying the electrical current and to remove or remedy any defects thereon, no matter how created or by whose fault or act. Geismann v. Electric Co., 173 Mo. 678; Winkelman v. Electric Light Co., 110 Mo.App. 184; Griffin v. United Electric Light Co., 164 Mass. 492; Mitchell v. Light & Power Co., 45 S.C. 146; Cook v. Electric Co., 9 Houston (Del.) 309; Texarkana Gas & Electric Light Co. v. Orr, 59 Ark. 215; Leavenworth Coal Co. v. Ratchford, 5 Kan.App. 150; Railroad v. Owings, 97 Ga. 666; 1 Thompson on Negligence (2 Ed.), sec. 802; Turton v. Electric Co., 185 Pa. 409; Larson v. Railroad, 56 Ill.App. 267; Haynes v. Gas Co., 114 N.C. 211; Railroad v. Shelton, 89 Tenn. 423; Illingsworth v. Light Co., 161 Mass. 583. (3) These duties it owes to all persons who are injured at places where they are entitled as of right to be for purposes of business or pleasure. Geismann v. Electric Co., 173 Mo. 674; Ennis v. Gray, 87 Hun 359; Griffin v. Electric Light Co., 164 Mass. 492; Perham v. Portland Electric Co., 33 Ore. 477; McLaughlin v. Electric Light Co., 100 Ky. 173; Railroad v. Owings, 97 Ga. 666; Overall v. Electric Light Co., 47 S.W. 442; Girarandi v. Electric Imp. Co., 107 Cal. 120. (4) A defendant who has failed to exercise ordinary care will not be excused by the fact that the injury in its manner of occurrence could not reasonably have been anticipated. It is sufficient that the injury is the natural result of some act or omission of the defendant's, which the defendant could reasonably anticipate would probably cause some injury. Hoepper v. Southern Hotel Co., 142 Mo. 378; Miller v. Railroad, 90 Mo. 394; Graney v. Railroad, 140 Mo. 98; Smith v. Railroad, L. R. 6 C. P. 20; City of Dixon v. Scott, 181 Ill. 116; 21 Am. and Eng. Ency. Law (2 Ed.), 488. (5) A defendant whose negligent acts or omissions have directly contributed to plaintiff's injury will not be excused by the fact that other causes for which he was not responsible have also contributed proximately to the injury in such a manner that but for them the injury would not have happened. Lore v. American Mfg. Co., 160 Mo. 626; Bassett v. St. Joseph, 53 Mo. 300; Musick v. Dold Pkg. Co., 58 Mo.App. 322; Brennan v. St. Louis, 92 Mo. 482; Hull v. Kansas City, 54 Mo. 598; Waller v. Railroad, 59 Mo.App. 426; Meade v. Railroad, 68 Mo.App. 101; McDermott v. Railroad, 87 Mo. 301; Ring v. Cohoes, 77 N.Y. 83. (6) Errors committed during the trial of a cause must be embraced in the motion for a new trial or they cannot be complained of in this court. St. Louis v. Siefer, 111 Mo. 662; Mays v. Mays, 114 Mo. 539; Needles v. Ford, 167 Mo. 513.
[195 Mo. 611]
This is an action under the statute for $ 5,000 damages for the death of plaintiff's husband, on the 24th of April, 1902, caused by an electric shock from the defendant's wire in Kansas City, Missouri. The action is by the widow. A prior action had been brought by the widow within six months after the death, in which the plaintiff suffered a non-suit, and this action was brought within one year thereafter, as allowed by the statute. There was a judgment for the plaintiff for $ 5,000, and the defendant appealed.
The petition alleges the relation of the plaintiff to the deceased, and his death on the day stated; the fact of such prior suit, nonsuit, and the institution of this action within the statutory time; the incorporation of the defendant; that it owned a certain electric powerhouse and electric light circuits connected therewith in Kansas City, used by it for the purpose of lighting the streets of said city; that it was the duty of the defendant to maintain and operate the same, as far as ordinary and reasonable care would avail therefor, so that the same should be in a reasonably safe condition and not liable to endanger lives and property of others. The negligence charged in the petition is as follows:
"That on and for sometime prior to about the 24th day of April, 1902, a certain of said arc light circuits owned and operated by the defendant company, and known, as plaintiff is informed, as circuit No. 32, was in a dangerous and defective condition, in that it was 'grounded' -- that is to say, that on account of defects in the insulation of said circuit, the wire or wires on said circuit had come into electrical contact with the earth at some place or places to plaintiff unknown, so [195 Mo. 612] that upon said circuit becoming grounded at any other place or places, a heavy and dangerous volume and charge of electricity was liable to pass from said circuit to and through any person or persons who might be so situated that said charge of electricity should pass through the body of such person or persons and through the earth in what is commonly known as a 'short circuit' and thereon back to said circuit through such other grounded connection or contact, to the serious or fatal injury of the person so affected, and who are liable to come into contact with the current so recklessly released and discharged from said circuit and its proper course, without knowledge or notice that said current was being so diverted and discharged; that by reason of said circuit being so grounded on or about and prior to April 24, 1902, at some place or places to plaintiff unknown, conditions so arose that the wire of said circuit at and near the place of residence of the plaintiff and her deceased husband, came in contact with trees near and adjacent and contiguous to which the defendant had carelessly strung the wire of such circuit, so as to burn said trees, including a tree upon the premises of the plaintiff and her deceased husband; that the volume of electricity passed along the wire or wires of said circuit or circuits was such as when diverted and passed through an inferior conductor, such as the wood of trees or the human body, would in passing through the same, burn said wood, and injure or destroy the life of such human being or beings.
"That on or about the 24th day of April, 1902, the said circuit being 'grounded' as aforesaid, at some place or places to the plaintiff unknown, and other than at the place immediately hereinafter described, upon the premises of the plaintiff and her deceased husband, Harold, the infant son of the deceased, who knew nothing of the danger of electricity, having discovered that one of the trees upon the premises of the plaintiff and [195 Mo. 613] her deceased husband had been burned by the contact of such tree with the wires of said circuit, which was defectively and insufficiently insulated through the carelessness and...
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