Booker v. Southwest Missouri R. Co.

• Citation: 144 Mo. App. 273,128 S.W. 1012
• Parties: BOOKER v. SOUTHWEST MISSOURI R. CO.
• Decision Date: 02 May 1910
• Court: Court of Appeal of Missouri (US)

128 S.W. 1012

144 Mo. App. 273

BOOKER v. SOUTHWEST MISSOURI R. CO.

Springfield Court of Appeals. Missouri.

May 2, 1910.

Rehearing Denied June 6, 1910.

1. APPEAL AND ERROR (§ 301)—QUESTIONS REVIEWABLE—NEW TRIAL—GROUNDS.

Objections to evidence and alleged misconduct of plaintiff's counsel in his opening statement cannot be reviewed where they have not been saved in the motion for a new trial.

2. TRIAL (§ 156)—DEMURRER TO EVIDENCE— INFERENCES.

A demurrer to the evidence admits every fact to be true which the evidence tends to prove, whether directly or by reasonable inference, the court in determining it being required to make every inference of fact in favor of the party offering the evidence which the jury might with propriety have so inferred, and if when viewed in that light the evidence will support a verdict in his favor, the demurrer must be overruled.

3. ELECTRICITY (§ 19) — BROKEN TROLLEY WIRE—INJURIES TO PEDESTRIAN—EVIDENCE —QUESTION FOR JURY.

In an action for injuries to a pedestrian by being burned by a broken trolley wire, evidence held to require the submission of the issue of defendant's negligence to the jury.

4. ELECTRICITY (§ 19) — BROKEN TROLLEY WIRE—RES IPSA LOQUITUR.

Where a broken trolley wire carrying a current of electricity, fell into a public street

and struck and injured a pedestrian, while under the control and management of defendant street car company such facts were sufficient to raise a presumption of negligence, and to cast the burden on defendant to show that the wire was on the street without fault of its servants or agents.

5. ELECTRICITY (§ 19)—INJURIES TO PEDESTRIANS—BROKEN TROLLEY WIRE—INSTRUCTIONS—RES IPSA LOQUITUR.

Where, in an action for injuries to a pedestrian by a broken trolley wire that fell into the street, the petition, evidence, and instructions did not proceed on the doctrine of res ipsa loquitur, an instruction that if the wire charged with a deadly current of electricity was negligently permitted by defendant to break in two, and if defendant negligently permitted the wire to become old and worn by continued use to the extent of impairing and weakening its tensile strength so as to become inadequate for use, and by reason of such defective condition it was negligently permitted to break, was not objectionable as authorizing a finding of negligence from the mere breaking of the wire.

6. ELECTRICITY (§ 14) — TROLLEY WIRES— CARE REQUIRED.

A railroad company must use the utmost care of an ordinarily prudent person engaged in the same line of business to maintain its overhead trolley wires in a safe condition.

7. NEGLIGENCE (§ 1)—ACTIONABLE NEGLIGENCE—ELEMENTS.

To constitute actionable negligence, there must exist a duty on the part of defendant to protect plaintiff from injury, a failure to perform the duty, and injury from such failure.

8. NEGLIGENCE (§ 4)—"ORDINARY CARE."

"Ordinary care" is such care as ought reasonably to be expected of an ordinarily prudent person in the same situation as the person whose conduct is in question.

9. TRIAL (§ 295)—INSTRUCTIONS—CONSTRUCTION AS A WHOLE.

In an action for injuries to a pedestrian by the breaking of defendant's electric trolley wire, claimed by defendant to have been due to a usual sleet storm, the court charged for plaintiff that though the jury believed that the storm was severe and unusual, yet if it was such as common experience taught might be expected in the vicinity, it was defendant's duty to have guarded against its effects, and for defendant, that if the storm was extraordinary and defendant's wires were covered with sleet, and without defendant's fault or negligence the trolley pole jumped from the wire and broke the guy wire causing it to strike plaintiff, and the trolley poles under the best regulation would jump from the trolley, and the cause of the break was an extraordinary and unusually heavy sleet storm, defendant would not be liable. Held, that such instructions, when considered together, properly presented the issue of vis major.

10. NEGLIGENCE (§ 61)—CONCURRENT CAUSES OF INJURY—VIS MAJOR.

Where defendant's negligence concurs with an act of God in point of time and place, or otherwise so directly contributes to plaintiff's damages that it is reasonably certain that the other cause would not have sufficed to produce the injury, then defendant is liable, notwithstanding he may never have anticipated the intervention of superhuman force.

11. DAMAGES (§ 160)—ISSUES AND PROOF— "PUT TO EXPENSE"—"EXPENSE."

Where, in an action for injuries, plaintiff alleged that he had been put to great expense for medical attendance and nursing, and for the purchase of drugs and medicine, to the amount of $400, the words "put to expense" meant "had incurred or been compelled to incur expense," the word "expense" meaning not only the cost of contemplated services, and materials, but also the charges for such as have been performed or furnished, whether paid or not, and hence plaintiff was not limited to recovering "expenses paid," but was entitled to recover for expenses incurred.

12. TRIAL (§ 255)—REQUEST TO CHARGE— DUTY TO REQUEST—NONDIRECTION.

Under Rev. St. 1899. § 748 (Ann. St. 1906, p. 733), authorizing either party to move the court for special instructions, it is the duty of a party desiring instructions, to present proper ones to the court; mere nondirection not amounting to misdirection.

13. DAMAGES (§ 132)—PERSONAL INJURIES— VERDICT—EXCESSIVENESS.

Plaintiff, while standing at a street corner, was struck and injured by a heavily charged trolley wire which broke as the car approached. Prior to the accident plaintiff was a strong, able-bodied man. After the accident his face showed that he had received a charge of electricity. His injuries were so severe that he remained unconscious for 10 or 12 days; his lip was cut to the teeth and he had a white line resembling an electric burn from ear to ear; his eyesight and hearing were affected; his hair turned gray; and from November 20 to March 23, he had aged 10 to 15 years. He was unable after the accident to perform any kind of manual labor, and was a wreck physically and mentally. Held, that a verdict for $9,500, from which plaintiff remitted $2,000, was not so excessive as to show that it was the result of passion and prejudice.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by J. W. Booker against the Southwest Missouri Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This was an action for damages for personal injuries. Defendant owned and operated an electric railroad by the overhead trolley system in Carthage, Mo. Its car tracks from the south come to the public square on Main street. Just before reaching Fourth street on the south side of the square, the tracks divide, one going north on Maine street and the other turning east on Fourth. There was a switch in the tracks about 20 feet south of Fourth street with a trolley wire overhead. On the night of November 19, 1906, there was a sleet storm. In operating the road, by reason of the sleet, the wheel had been taken off the trolley pole and a trolley pin inserted to knock the sleet off the wire and thereby obtain the current to run the car. At the corner of Fourth and Main streets there were a number of guy or span wires suspended to hold the trolley wire in proper position above the tracks. In addition, there is, on one side of the track, stretched on the poles, a feed wire, which is connected with the trolley wire at intervals, its use being to equalize the electric current, and also to furnish current past any accidental break in the trolley wire. The trolley cars were operated by communicating the electric current from the trolley wire to the cars by means of bringing the end of the trolley pole in contact with the trolley wire. The trolley pole is located on the top of the car and has a spring underneath between its base and the top of the car strong enough to hold it up firmly against the trolley wire. When the wheel on the end of the trolley pole jumps or slips from the wire, this spring throws the pole up nearly perpendicular and causes it to hit against the guy wires when the car is running. On the morning of November 20, 1906, plaintiff and other persons were standing near the trolley car tracks on the east side of Main street, waiting to take the 6:10 car. When the car was approaching, the trolley pole jumped and slipped from the wire, caught and broke the guy wire and also the trolley wire, and the system of suspended wires fell to the street, striking the plaintiff across the face, causing injuries—as is claimed—which rendered him a mental and physical wreck. The plaintiff's evidence tends to show that the exposed end of the broken and live trolley wire came in contact with his person and inflicted the injuries. The extent of these injuries is disputed by the defendant. Plaintiff's evidence also tends to show that the trolley wire at the time it was put up was inferior in size in comparison to the size of wires commonly used as trolley wires; that it had been used some 10 or 11 years at that place; that it had become worn by long-continued use, and that its tensile strength had been greatly weakened and impaired so as to reduce the size of the wire to about one-half its original size and strength, and that it was thereby impaired to such a degree as to be weakened, defective, and inadequate for the purpose for which it was used. There is a conflict in the evidence as to whether the injuries were caused by the trolley wire or a guy wire, and whether either of them were live wires at the time of contact with plaintiff's person. The evidence for the defendant tended to show that there had been an unprecedented sleet storm the night before, and that the wires on the morning of the accident were heavily coated with sleet, rendering it difficult to get the wheel on the trolley pole in contact with the wire so as to run...