Byerly v. Consolidated Light, Power & Ice Co.

• Decision Date: 06 April 1908
• Citation: 109 S.W. 1065,130 Mo.App. 593
• Parties: ELLA BYERLY, Appellant, v. CONSOLIDATED LIGHT, POWER AND ICE COMPANY, Respondent
• Court: Kansas Court of Appeals

109 S.W. 1065

130 Mo.App. 593

ELLA BYERLY, Appellant, v. CONSOLIDATED LIGHT, POWER AND ICE COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

April 6, 1908

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

AFFIRMED.

Judgment affirmed.

Hiram W. Currey, with whom is Edward G. Sapp and S. C. Cheeseman for plaintiff.

It has been the settled law of this State since the case of Buesching v. St. Louis, etc., Co., 73 Mo. 219 decided in 1880, that a demurrer to evidence admits not only facts testified to by witnesses, but all of the facts which the evidence tends to prove, etc. Montgomery v Railroad, 181 Mo. 504; Moore v. Transit Co., 95 Mo.App. 728; Berry v. Railroad, 124 Mo. 245; Holloway v. Kansas City, 184 Mo. 29; Toohey v. Fruin, 96 Mo. 110; Morrel v. Car Co., 98 Mo.App. 356; Myers v. Transit Co., 99 Mo.App. 369; Brooks v. Railroad, 98 Mo.App. 69. (2) The plaintiff was not required to prove the defendant's negligence or that such negligence was the proximate cause of the death of her husband, by direct evidence; and she was entitled to prove the primary fact of negligence and proximate cause of death, by circumstantial evidence. Settle v. Railroad, 127 Mo. 340; Cambrow v. Railroad, 165 Mo. 558; Longree v. Mfg. Co., 120 Mo.App. 478. (3) Whether the plaintiff's husband was killed through negligence contributing to his death, which precludes a recovery, under the evidence in this case, is a question for the jury. The presumption here obtains that the deceased was careful instead of negligent, and it was for the respondent to overcome that presumption by the preponderance of evidence. Rogers v. Print. Co., 103 Mo.App. 688; Priesmeyer v. Transit Co., 102 Mo.App. 518; Riski v. Transit Co., 180 Mo. 168; Griffith v. Everett, 98 Mo.App. 32; Goff v. Transit Co., 199 Mo. 694; Charata v. Railroad, 200 Mo. 413; Chaffee v. Carthage, 200 Mo. 616; Stotler v. Railroad, 200 Mo. 107. (4) The wires carrying the current of electricity which killed plaintiff's husband, were under the exclusive control of the defendant company; and, in such case the plaintiff makes out a prima-facie case by showing such facts as warrant the interference that her husband came to his death by defendant's negligence. Redmond v. Railroad, 185 Mo. 1, 10; Briggs v. Railroad, 109 N.Y. 297; Ennis v. Gray, 34 N.Y.S. 383; Griffin v. Manice, 160 N.Y. 194; Ground v. Railroad, 91 N.Y.S. 202; Crovally v. Railroad, 89 N.Y.S. 577. (5) The circumstances were such as to charge the defendant company with the utmost care to prevent injury to the persons who were required to pass daily under and near its wires. Winkleman v. Light Co., 110 Mo.App. 184; Wilbert v. Brick Co., 106 N.W. 1058, 129 Wis. 1; Macow v. Paducah, 110 Ky. 689, 62 S.W. 496; Simmons v. Shreveport, etc., Co., 41 So. 248; Brown v. Illuminating Co., 46 L. R. A. 745; Garaudi v. Electric Co. 28 L. R. A. 596; Griffen v. Light Co., 164 Mass. 492, 41 N.E. 675; Illingsworth v. Light Co., 161 Mass. 583, 37 N.E. 778; Potts v. Shreveport, etc., Co., 110 La. 1, 34 S. 103; Haynes v. Gas Co., 19 S.E. 334; Snyder v. Electrical Co., 28 S.E. 733; Harlan v. Light & Power Co., 124 Ia. 500, 100 N.W. 508; Brown v. Edison Co., 46 L. R. A. 745; Barto v. Telephone Co., 120 Ia. 241; 101 N.W. 876; Steindorf v. St. Paul, etc., Co., 100 N.W. 221, 92 Minn. 496; Carroll v. Electric Co., 84 P. 389; Tel. Co. v. Sokola, 73 N.E. 143; Schweitzers v. Citizens, etc., Co., 52 S.W. 830 (Ky.); 15 Cyc., pp. 472-3; Gilbert v. Duluth, etc., Co., 93 Minn. 99, 100 N.W. 653; Thomas v. Wheeling, etc., Co., 46 S.E. 217; Tripple, etc., Co. v. Wellman, 114 Ky. 79, 70 S.W. 49.

John A. Eaton, Dudley W. Eaton and E. H. McVey for respondent.

(1) We have no fault to find with the rule of law contended for in point 1. We, however, deny its application here. (2) Counsel for appellant would have this court hold that the jury might have inferred from the evidence that the electric wire of the defendant caused the death of plaintiff's husband. Counsel cite the case of Settle v. Railroad, 127 Mo. 340. In that case the injury occurred, so the jury inferred, from a bent handhold on the end of a freight car. Conclusive proof was offered that the handhold was bent and the jury were not in that case asked to infer that plaintiff was using the handhold, for that fact was affirmatively proven. (3) The presumption that Byerly was at the time of his death in the exercise of due care was absolutely overthrown by the testimony, which showed that he was guilty of negligence which caused his death, in that, if electricity caused his death, he carelessly permitted his body to come in contact with wires the elevation, position and dangers of which he knew. This presumption is one which only obtains when evidence upon that question is lacking, and may be rebutted by plaintiff's own testimony. Rogers v. Myerson Ptg. Co., 103 Mo.App. 688; Priesmeyer v. Transit Co., 102 Mo.App. 518; Reska v. Railroad, 180 Mo. 187; Stotler v. Railroad, 200 Mo. 147. (4) It may be conceded for the purposes of this case that the wires of respondent were in its exclusive control. But the tailings pile which was built up under the wires was in charge of Byerly as the employee of the Mining Company, charged with the duty of building it. The wires of defendant would have been no source of danger to him but for the growth of the tailings pile, and but for that pile and its growth he could not have come in contact with the wires, if he did. Hence, the facts in this case do not authorize the presumption that Byerly came to his death from the act of the respondent, let alone its negligence. (5) The error in appellant's fifth point is that it does not contemplate enough of the facts. It is true that defendant's wires were uninsulated, but it is also true that Byerly knew that fact; this is too obvious to need argument. Walker knew it as well as every other employee about the mill. Byerly knew it, because his duties took him to a place which afforded him a peculiar opportunity of knowing it. Zumault v. Railroad, 175 Mo. 288; Doerr v. Brewing Ass'n, 176 Mo. 547; Hogan v. Railroad, 150 Mo. 36; Matthews v. Elevator Co., 59 Mo. 474; Wray v. S.W. E. L. & W. P. Co., 68 Mo.App. 380; Winkelman v. Light Co., 110 Mo.App. 190.

OPINION

JOHNSON, J.

--Plaintiff, the widow of Williard E. Byerly, deceased, alleges in her petition that the death of her husband was caused by the negligence of defendant in maintaining wires carrying electric currents of high power in dangerous proximity to the place where her husband was required to work. At the conclusion of the introduction of plaintiff's evidence, the court gave the jury an instruction peremptorily directing a verdict for defendant, whereupon plaintiff took a nonsuit with leave to move to set the same aside and, in due course of procedure, brought the case here by appeal.

At the time of his death which occurred in the morning of August 4, 1906, Byerly was working at mill No. 5 of the Mercantile Mining Company situated near Webb City but outside of its corporate limits. The production of lead and zinc from ore was the object of the operations conducted at the mill and Byerly was employed to work at the "sludge table" an appliance for the separation of fine ore from sand. Water runs from the table continually and the operators are likely while at work to have their clothing moistened. A large tailings elevator was operated in connection with the mill. Its function was to carry off the refuse or tailings from the mill and deposit them in a pile. The spout from which the tailings (mixed with water) were discharged on to the pile was about 125 feet from the sludge table and in plain view therefrom. When the pile, which was situated on the mill premises, grew to the height of the spout, a mill trough or flume was put in to carry the tailings away from the spout for deposit and, as necessity demanded, the length of the flume was extended from time to time. By this process, the pile had reached a length of, perhaps, 150 feet. Its highest point was at the end under the spout where it had attained a height of about forty-five feet. From that point, it gradually sloped to the ground. The flume ran along the crest and therefore sloped downward from the spout to the place of discharge. Occasionally, the flume became choked by the stoppage and accumulation of refuse and it was one of Byerly's duties to keep it clear. To do this, it was necessary for him to ascend the pile to the place where the flume was choked and to remove the obstruction with a scoop shovel. The mill had been in operation about four months and Byerly had been employed during that time in the capacity described. Defendant was engaged in the business of generating and supplying electricity for use in various mining mills and plants in that vicinity. Its product was distributed from its power house by means of wires carried on poles. One of its lines carrying four wires was built across the premises of the Mercantile Mining Company. The wires were strung about twenty-five feet above the ground and were uninsulated. When built, the line entirely cleared the tailings pile, but in time as the pile grew and extended in length, deposits were made under the line until on the day of the occurrence in question, the lowest wire was not more than five feet above the crest of the pile underneath. About a week before, defendant at the request of the mining company, had elevated the wires by raising the height of one of the poles in that section some eight or ten feet, but in the meantime the pile had grown to the height stated.

The nature and conditions of the right given by the mining company to defendant to build and maintain the line over its premises are not disclosed and we have no means of knowing which one of the...