Brunke v. Missouri & K. Telephone Co.

• Citation: 115 Mo. App. 36,90 S.W. 753
• Parties: BRUNKE v. MISSOURI & K. TELEPHONE CO.
• Decision Date: 04 December 1905
• Court: Court of Appeal of Missouri (US)

90 S.W. 753

115 Mo. App. 36

BRUNKE v. MISSOURI & K. TELEPHONE CO.

Kansas City Court of Appeals. Missouri.

December 4, 1905.

TELEGRAPHS AND TELEPHONES — INJURIES FROM CONSTRUCTION AND MAINTENANCE.

Where a servant of a telephone company threw a tool to another servant at work on the top of a telephone pole, and he failed to catch it, and it fell and injured a pedestrian, it was proper to admit evidence tending to show that it was customary to pass a tool from the ground by having it pulled up by a line, although no such custom was pleaded.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Henry W. F. Brunke, by Louis Brunke, his next friend, against the Missouri & Kansas Telephone Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Harkless, Crysler & Histed and Brown & Dolman, for appellant. James W. Mytton and C. C. Crow, for respondent.

JOHNSON, J.

Plaintiff recovered judgment in the sum of $1,500 on account of personal injuries sustained as the result of the negligence of defendant. The pertinent facts shown by the evidence are as follows: In the afternoon of April 29, 1904, plaintiff, a boy then about 11 years of age, residing with his parents in the city of St. Joseph, while on his way home from school had his attention attracted by some repairs which linemen employed by defendant were engaged in making near the intersection of Twenty-Sixth and Olive streets, upon telephone wires strung over-head and carried on poles. The place was in a populous part of the city, and the telephone line was in the street. Plaintiff asked and obtained permission from one of the workmen to take a piece of wire lying near the base of the pole that was the center of activity at that time. As he started to pick it up the workman attempted to throw a cleaver, a heavy edged tool, to a lineman who was near the top of the pole making the repairs. The lineman failed to catch the implement, and it fell, striking plaintiff upon the head and inflicting severe injuries.

Defendant, appellant here, assigns but one error. Plaintiff, over defendant's objections, was permitted to show by the testimony of linemen, who were examined as witnesses, that the usual method employed by such craftsmen in passing a tool from the ground to the top of a pole was by attaching it to a line and having it pulled up by the man at the top. Defendant says that, as no such usage was pleaded in the petition, it was harmful error to admit the evidence. The negligence charged in the petition is: "The servants at work on the ground threw or pitched a cleaver towards the man engaged at work at the top of said telephone pole, and that the servant engaged at work on the top of said pole failed to catch said cleaver. * * * The servants and agents of defendant knew that there were large numbers of children passing along and on said Twenty-Sixth and Olive...