Blackburn v. Southwest Missouri Railroad Company
| Decision Date | 13 June 1914 |
| Citation | 167 S.W. 457,180 Mo.App. 548 |
| Parties | RALPH BLACKBURN, Respondent, v. SOUTHWEST MISSOURI RAILROAD COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court, Division Number Two.--Hon David E. Blair, Judge.
AFFIRMED.
Judgment affirmed.
McReynolds & Halliburton for appellant.
(1) Highways are laid out and dedicated for travel by the ordinary modes. No one has a right to move a house along a street except by permission of the municipal authorities. Day v. Green, 4 Cush. 437; Crosswell on Electricity sec. 569; Keasby on Electric Wires, Sec. 64; Fort Madison Street Railway Co. v. Hughes, 114 N.W. 10, 14 L. R. A N. S. 448; Dickson v. Kewanee Electric Light & Motor Co., 53 Ill.App. 379; Telephone Co. v. Dexheimer, 14 N. J. L. 295; Telephone Exchange Co. v. Anderson, 12 N.D. 585, 102 Am. St. Rep. 580, 65 L. R. A. 771, 98 N.W. 706; Traction Co. v. Sterling, 29 Ohio C. C. 227. (2) Even if plaintiff had obtained a written permit from the city of Carterville to move the house along the streets of Carterville, he would not have had any right to interfere with telephone or electric wires strung across the streets and would have been guilty of a trespass in so doing. Telephone Exchange Co. v. Anderson, 102 Am. St. Rep. 580, 12 N. Dak. 585; Electric Light & Power Co. v. Bloomquist, 185 F. 615; Williams v. Railway Co., 130 Ind. 71; 15 L. R. A. 64; R. S. of Mo. 1909, Sec. 4579. (3) Plaintiff was a trespasser in moving a house on the streets of Carterville without a written permit from the mayor or acting mayor and was therefore guilty of negligence contributing to his injury, and is not entitled to recover in this case even though it should be found that defendant was guilty of negligence in not having the electric wires properly insulated. Rowe v. Hammond, 172 Mo.App. 203, 157 S.W. 880; Reusch v. Rolling Mill Co., 118 Ky. 369, 80 S.W. 1168; Schultz v. Milwaukee, 49 Wis. 254, 5 N.W. 342, 35 Am. Rep. 779; Taylor v. City, 64 Md. 68, 20 A. 1027, 54 Am. Rep. 759; Schouteau v. Friese, 14 Mo.App. 436; Weller v. Railroad, 120 Mo. 635. (4) Defendant owed no duty to plaintiff to insulate the wires at the point where plaintiff was injured, so plaintiff had no right or authority to interfere with said wires in any way. The wires were at a height, that they could not interfere with the ordinary and rightful use of the street; there was no reason for defendant to expect persons to climb up among said wires and handle same, and plaintiff in climbing up to said wires and lifting same was guilty of negligence contributory to his injuries. Electric Light & Power Co. v. E. Lafevre and wife, 49 L. R. A. 771, 93 Tex. 604; Texas & P. R. Co. v. Bingham, 80 Tex. 225, 38 S.W. 162; Railroad v. Kellogg, 94 U.S. 469, 24 L.Ed. 256; Street Railway Co. v. Groose, 70 Ill.App. 381; McCaughna v. Owosso & Corunna Elec. Co., 129 Mich. 407, 89 N.W. 441; Graves v. Water Power Co., 87 P. 956; Sias v. Railroad, 179 Mass. 343, 60 N.E. 974; Sullivan v. Railroad, 156 Mass. 378, 31 N.E. 128; Railroad v. McGilvray, 62 N. J. L. 451, 41 A. 955; Keefe v. Narragansett, etc., Co., 21 R. I. 575, 43 A. 542; Electric Co. v. Melville, 210 Ill. 70, 70 N.E. 1052; Hichok v. Power Co., 200 N.Y. 464, 93 N.E. 1113.
A. F. Gonder and Walden & Andrews for respondent.
(1) Under the facts in the case at bar, which show, without dispute, that moving houses on the streets of Carterville was of almost daily occurrence, and was an ordinary and usual use of the street, we believe the true rule is announced in Graves v. Shattuck, 35 N.H. 257, 69 Am. Dec. 540, 541; Street Railway Co. v. Hughes, 14 L. R. A. (N. S.) 448. (2) Under the great weight of authority, in this State and others, plaintiff, if a trespasser at all, was a mere technical trespasser and was not such a trespasser as would excuse the defendant for negligently injuring him and defendant owed him the duty of, at least, ordinary care. Commonwealth v. Melville, 70 Northeastern 1052; Tel. Co. v. Booker, 103 Va. 595, 50 S.E. 148; Elec. Light Co. v. Garden, 78 F. 77, 37 L. R. A. 725; Goodwin v. Tel. Co., 157 Mo. 608; Daltry v. Light Co., 57 A. 833-836; Schilling v. Abernathy, 112 Pa. 427, 56 Am. Rep. 320; Day v. Light, Power & Ice Co., 136 Mo.App. 274. (3) The duty of care, which the law imposes upon those who undertake to operate so dangerous a force as electricity, may under some circumstances, be due to one who is technically a trespasser. Day v. Light, Power & Ice Co., 136 Mo.App. 280; El. Light Co. v. Gardner, 78 F. 77. (4) Criminal and penal statutes are strictly construed in favor of the defendant and against the State. State v. McMahan, 234 Mo. 611; Scott v. Royston, 223 Mo. 568. (5) The violation of some statute or ordinance will not prevent a recovery of damages unless the defendant shows that the violation of the law was malum in se, or was the proximate and efficient cause of the injury. Reed v. Railroad, 50 Mo.App. 504; Phelan v. Paving Co., 227 Mo. 666; Adams v. Wiggins Ferry Co., 27 Mo. 96; Spofford v. Harlow, 5 Allen, 176; Daman v. Inhabitants, 119 Mass. 66; Smith v. Boston, 120 Mass. 538; Mohney v. Cook, 26 Penn. 342; Kansas City v. Orr, 62 Kan. 61, 61 P. 397. (6) It is the duty of an electric light company which has strung its electric wires along the streets of a city, for its own private gain, to see that such streets are at all times maintained in the same condition as to the safety of the persons using them, free from danger of electricity, as they were before the wires were put there. Gunn v. Gas Co., 145 Mo. 502; Hoover v. Railroad, 159 Mo.App. 416-420; Winkleman v. Light Co., 110 App. 184; Bruebaker v. Light Co., 130 Mo.App. 439; Hoepper v. Hotel Co., 142 Mo. 378; Freeman v. Tel. Co., 142 S.W. 733; Campbell v. United Railway, 147 S.W. 788.
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 ten or fifteen 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 schoolhouse 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 twenty-two to twenty-five 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 employees assisted him in moving the house under its trolley wire at a point farther down the street, and after he was injured, assisted his employees 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 houses 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 $ 6500 and defendant appeals.
The defenses to the action were as follows: (1) That an ordinance was in force in the city of Cartersville requiring house...
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