Booker v. Southwest Missouri Railroad Company

• Decision Date: 02 May 1910
• Citation: 128 S.W. 1012,144 Mo.App. 273
• Parties: J. W. BOOKER, Respondent, v. SOUTHWEST MISSOURI RAILROAD COMPANY, Appellant
• Court: Missouri Court of Appeals

128 S.W. 1012

144 Mo.App. 273

J. W. BOOKER, Respondent, v. SOUTHWEST MISSOURI RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Springfield

May 2, 1910

[Copyrighted Material Omitted]

Appeal from Jasper Circuit Court.--Hon. Howard Gray, Judge.

AFFIRMED.

STATEMENT.--This was an action for damages for personal injuries. Defendant owned and operated an electric railroad by the overhead trolley system in Carthage, Missouri. 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 Main street and the other turning east on Fourth. There was a switch in the tracks about twenty 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 contract 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 those 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 ten or eleven 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 the car; that when a trolley wire is in such condition, it breaks more easily; that it took but little sleet to increase the weight and strain on the wire and that it would therefore increase the risk of breakage; that trolley poles frequently jump from the trolley wire, under any circumstances, and that there is no means known to satisfactorily prevent it; that in times of sleet and ice, more care is required to keep the pole on the wire; that on the morning of the accident, it was hard to run fast on account of the ice on the trolley wheel and on the trolley wire, and the company had put in a trolley pin as it would better cut the ice, and that this is the usual way of doing in case of sleet; that the wire in use was a proper one to sustain the strain that was required for operating the cars. The evidence was conflicting in regard to the extent of the sleet storm. Respondent introduced evidence tending to show that it was not worse than commonly experienced in that vicinity.

The plaintiff obtained a verdict for the sum of $ 9500, entered a remittitur of $ 2000 and the judgment was entered in his favor for $ 7500, from which the defendant has appealed.

The negligence complained of by respondent is stated in the petition as follows:

"That at the point where the injuries complained of occurred, said trolley wire had become and was then and there so worn by long and continued use by defendant that its tensile strength was greatly weakened and impaired, and that the defendant negligently suffered and permitted said wire, at the point of said accident, to become old and worn out by the long continued use to which the same had been put, so that said wire was reduced to about one-half its original size and strength whereby the strength and durability of said wire was impaired at least one-half, so that said trolley wire was too weak, defective, insufficient and inadequate for the purpose of propelling defendant's street cars; that said wire had negligently been maintained by defendant for a long time before the injuries complained of, in said weakened, defective, insufficient and inadequate condition, and that by reason thereof said wire became dangerous and unsafe, and that the defendant knew, or by the exercise of ordinary care could have known, the dangerous, defective, insufficient, weakened and inadequate condition of said wire a sufficient length of time before the injuries complained of, to have remedied same and averted the accident; that the maintenance of said wire in said condition and position was negligence on the part of the defendant. . . . And as one of the defendant's cars at the time and in possession of and operated by the defendant, came north on Main street and was about to enter the public square, said trolley wire suddenly and without warning parted, or broke in two, at a point near the southwest corner of the public square in said city where said wire passes under what is commonly called the switch bar, and one end of such wire so charged with electricity fell to the street below carrying with it in its said fall said guy wire also charged with electricity, and said wires then and there came in contact with the plaintiff, striking him in the face and about his head with such force and violence as to cut a long, deep, ugly gash," etc.

Judgment affirmed.

McReynolds & Halliburton for appellant.

(1) Instruction number 5, given on behalf of plaintiff, should have been refused, and instruction C, asked by defendant, given, as all the testimony on the question shows the sleet storm to have been extraordinary and unusual, and it is in conflict with instruction number 10, given for defendant. Turner v. Harr, 114 Mo. 346; McPherson v. Railroad, 97 Mo. 253; Stoher v. Railroad, 105 Mo. 195; Flori v. Railroad, 69 Mo. 341. (2) The petition alleges plaintiff has "been put to great expense for medical attendance and nurses and for the purchase of medicine and drugs, towit: in the sum of four hundred dollars" (not that he has become liable for that amount). There is no evidence that plaintiff has paid out anything on this account, therefore not entitled to recover for it under the petition. Muth, Ex., v. Railroad, 87 Mo.App. 433; Nelson v. Railroad, 113 Mo.App. 662; Howard v. Railroad, 110 Mo.App. 582; Stanley v. Railroad, 112 Mo.App. 608; Robertson v. Railroad, 152 Mo. 391; Rhodes v. Nevada, 47 Mo.App. 500; Madden v. Railroad, 50 Mo.App. 682. (3) The plaintiff in his petition having plead specific acts of negligence on the part of the defendant causing the accident and injury, the burden was on plaintiff to prove the specific negligence alleged and the doctrine of res ipsa loquitur does not in any way apply, and the court erred in refusing defendant's instructions "B". Hamilton v. Railroad, 114 Mo. 509; Bunyan v. Railroad, 127 Mo. 19; Hite v. Railroad, 130 Mo. 136; Bartley v. Railroad, 148 Mo. 139; Gayle v. Car Co., 177 Mo. 450; Cooper v. Realty Co., 123 S.W. 853; Kirkpatrick v. Railroad, 211 Mo. 83; McCrary v. Railroad, 109 Mo.App. 569; Ratliff Bros. v. Railroad, 118 Mo. 653; Carvin v. St. Louis, 151 Mo. 345; Gannon v. Gas Co., 145 Mo. 534; Warner v. Railroad, 178 Mo. 133; Schultz v. Railroad, 36 Mo. 32. (4) Defendant was only bound to use ordinary care to prevent accident by act of God, to-wit: extraordinary sleet storm. Grier v. Railroad, 108 Mo.App. 574; Commission Co. v. Railroad, 113 Mo.App. 544; Woolsey-Stahl Co. v. Railroad, 113 Mo.App. 651; Lamar v. Railroad, 117 Mo.App. 458; Lightfoot v. Railroad, 126 Mo.App. 532.

R. A. Mooneyham, R. M. Sheppard and Hugh Dabbs for respondent.

(1) A complete prima-facie case of negligence was made out, and the burden was cast upon the defendant to show that this live wire was on the street through no fault of its servants or agents. Harrison v. Light Co., 195 Mo. 623; Beverly v. Light Co., 130 Mo.App. 593; Brown v Light Co., 137 Mo.App. 718; Gannon v. Gas Co., 145 Mo. 502; McLaughlin v. Light Co., 100 Ky. 173. (2) The instructions given in this case correctly declare the...