Blackburn v. Southwest Missouri R. Co.

• Citation: 167 S.W. 457,180 Mo. App. 548
• Decision Date: 01 May 1914
• Docket Number: No. 1122.,1122.
• Parties: BLACKBURN v. SOUTHWEST MISSOURI R. CO.
• Court: Missouri Court of Appeals

167 S.W. 457

180 Mo. A. 548

BLACKBURN v. SOUTHWEST MISSOURI R. CO.

No. 1122.

Springfield Court of Appeals. Missouri.

May 1, 1914.

Rehearing Denied May 22, 1914.

1. ELECTRICITY (§ 18)—NEGLIGENCE (§ 82)— VIOLATION OF ORDINANCES—EFFECT.

The violation of an ordinance will not defeat a recovery, unless such violation is the proximate cause of the injury; hence a house mover, injured by coming in contact with an uninsulated electric wire, is not barred of recovery because he did not have a city permit authorizing him to move the house.

2. ELECTRICITY (§ 15)—UNINSULATED WIRES —INJURIES—TRESPASSER.

While the moving of a house along a public highway is a privilege and is not a matter of common right, one moving a house without a permit is merely a technical trespasser, and defendant, which maintained a dangerous and uninsulated wire with which the house mover came in contact, is not for that reason relieved of the duty of exercising that extraordinary degree of care required by handlers of electricity.

3. ELECTRICITY (§ 17)—INJURIES—LIABILITY.

A power company, which had the control and care of electric wires by which current was carried to a schoolhouse, cannot escape liability for injuries because of lack of insulation on the ground that it did not own the wires; the injuries in the last analysis coming not from the wires but from the current.

4. ELECTRICITY (§ 18)—INJURIES—DEFENSES —STATUTE.

Recovery by a house mover, injured by an uninsulated light wire, strung with a number of telephone wires which he attempted with his hands to lift above the house, cannot be defeated on the theory that he was violating Rev. St. 1909, § 4579, making it a misdemeanor to unlawfully and maliciously destroy or tamper with electric equipment, for his act was not malicious or intended to destroy the equipment, but rather to protect it.

5. ELECTRICITY (§ 14)—CARE—DUTY.

Those who handle and distribute so highly dangerous a force as electricity are bound to use the highest degree of care possible to protect members of the public who may come in contact with the wires or other instrumentalities carrying the current.

6. ELECTRICITY (§ 19)—LIABILITY OF POWER COMPANY—HOUSE MOVER.

An electric company, which strung uninsulated light wires 20 or 25 feet above the ground on poles bearing telephone wires, cannot be declared, as a matter of law, free from negligence, rendering it liable for the injuries received by a house mover who grasped the light wire with the telephone wires in attempting to raise them above a house, where it appeared that houses were moved very frequently in that locality, that another house mover had had trouble with the same wire, and that the company's own servants had assisted plaintiff in moving the house under its trolley wire, for the injury received might, by ordinary care, have been foreseen.

7. ELECTRICITY (§ 19)—CONTRIBUTORY NEGLIGENCE—WHAT CONSTITUTES.

Where an uninsulated electric wire, similar in size, was strung with telephone wires, a house mover, who desired to lift the wires a little way above a house and did not know that one of the wires carried a dangerous current, cannot be held guilty of contributory negligence, as a matter of law, in grasping them in his hands.

8. ELECTRICITY (§ 18)—CONTRIBUTORY NEGLIGENCE—WHAT CONSTITUTES.

Nor can he be held guilty of contributory negligence in failing to wear rubber gloves.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by Ralph Blackburn against the Southwest Missouri Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

McReynolds & Halliburton, of Carthage, for appellant. A. F. Gonder and Walden & Andrews, all of Joplin, for respondent.

FARRINGTON, J.

This is an action to recover damages for personal injuries received by reason of the alleged negligence of the defendant company in failing to insulate certain electric wires which it is alleged to have maintained and controlled.

The defendant is a public service corporation operating a street railway in the city of Carterville and furnishing electricity, for compensation, to persons desiring to use the same along and near its line of railway. In the year 1905 it set poles and strung wires along Elizabeth street and across Hall street, and these wires were connected with its feed wire and were at all times thereafter charged with a current of electricity of 650 voltage. At the place where plaintiff was injured, these wires were entirely uninsulated. They were strung in among some 10 or 15 telephone wires. The expense of erecting the poles and stringing the wires was paid by the Carterville school district, which also thereafter paid defendant a stipulated price per month for the current. After the poles were set and the wires strung, the evidence shows that defendant assumed control over them and at all times maintained the wires so as to convey its electricity to a school-house located near the place where the connection with the feed wire was made. When the wires in question became dislodged or needed repairing in any way, the work was done by the servants of the defendant company and at no expense whatever to the school district. Some six or seven years prior to the time of plaintiff's injury, a house mover, named Galbraith, while moving a house, came in contact with the wires at the same point in the street at which plaintiff was injured, and there is evidence tending to show that Galbraith took a board and pressed defendant's wires against the telephone wires, burning several in two, and that defendant was notified, and that its servants came to repair and replace the same.

The plaintiff's injury was sustained while he was moving a house along the public street. Intending to pass under these wires, and noticing that the house would strike them, he climbed to the roof and grasped the electric wires, together with several of the telephone wires, for the purpose of raising them and allowing the house to pass under. The evidence tends to show that he thought all the uninsulated wires he saw there were telephone wires. The undisputed evidence is that all the wires which were strung there together were of about the same size and appearance. When plaintiff took hold of the wires, the contact made thereby practically destroyed his hands. The evidence shows that the wires were from 22 to 25 feet above the ground and were properly strung. However, no point is made as to how they were strung or fastened to the poles, except that they were entirely uninsulated and were placed among a number of similar appearing telephone wires. On the day before plaintiff's injury occurred, while he was moving the house, defendant's employés assisted him in moving the house under its trolley wire at a point farther down the street, and, after he was injured, assisted his employés in moving the house under these wires. The undisputed evidence is that house moving is of almost daily occurrence in that city and mining district; one house mover testified that until 1911, when he went out of the business, from one to ten house were moved along the streets each week; and there is evidence that a number of house movers operate in that city. There is no evidence that plaintiff was unduly obstructing the use of the street by travelers, or was injuring or destroying, or attempting to injure or destroy, the property of the defendant or others in moving the house at the time of his injury. The plaintiff recovered judgment for $6,500, and defendant appeals.

The defenses to the action were as follows: (1) That an ordinance was in force in the city of Carterville requiring house movers to obtain a permit from the proper authorities before they could lawfully move houses along the streets, and that the plaintiff had failed to obtain such permit and was therefore guilty of an unlawful use of the street. (2) That even if plaintiff had obtained a written permit, as provided by the ordinance, he would not have had a right to interfere with telephone or electric wires strung across a street, and in doing what he did would have been guilty of a trespass. (3) That section 4579, R. S. 1909, makes it a misdemeanor for any person to "unlawfully and maliciously destroy, injure, or otherwise tamper with any * * * line or pole," etc. (4) That the wires in question were placed at such a height and at such a place that they could not interfere with the ordinary and proper use of the street, and that the injury was not the natural and probable result of a failure to insulate. (5) That plaintiff was guilty of contributory negligence in voluntarily and knowingly taking hold of the wires at the place and in the manner he did. All these defenses were embodied in instructions requested by the defendant, some of which were refused, and of this complaint is now made.

The appellant asks us to rule that because the plaintiff was moving the house along the streets of Carterville without first having obtained a permit from the city's authorities, as provided by ordinance, he must be denied a recovery. The law in this state is well settled that the violation of an ordinance will not defeat a recovery unless such violation is the proximate and efficient cause of the injury. Reed v. Railway Co., 50 Mo. App. 504; Phelan v. Paving Co., 227 Mo. 666, 127 S. W. 318, 137 Am. St. Rep. 582; Adams v. Wiggins Ferry Co., 27 Mo. 95, 72 Am. Dec. 247. See, also, Platz v. City of Cohoes, 89 N. Y. 219, 42 Am. Rep. 286.

It cannot be argued that, had plaintiff possessed a permit at the time of the contact with the wires, his injury would have been any the less certain or painful, and the cases relied upon by appellant, holding that the violation of an ordinance will defeat recovery, are those where the act of violation was in and of itself at least a contributing cause of the injury. Weller v. Railroad, 120 Mo. 635, 23 S. W. 1061, 25 S. W. 532; Schoenlau v. Friese, 14 Mo. App. 436; Rowe v. Hammond, 172 Mo. App. 203, 157 S....