Campbell v. Springfield Traction Company

• Decision Date: 12 February 1914
• Citation: 163 S.W. 287,178 Mo.App. 520
• Parties: H. A. CAMPBELL, Respondent, v. SPRINGFIELD TRACTION COMPANY, Appellant
• Court: Missouri Court of Appeals

163 S.W. 287

178 Mo.App. 520

H. A. CAMPBELL, Respondent, v. SPRINGFIELD TRACTION COMPANY, Appellant

Court of Appeals of Missouri, Springfield

February 12, 1914

Appeal from Greene County Circuit Court.--Hon. Guy D. Kirby, Judge.

AFFIRMED.

Judgment affirmed.

Delaney & Delaney, for appellant.

(1) The court erred in declaring the degree of care required of defendant by instructing that the very highest degree of care was required. Chrismer v. Bell Tel. Co., 194 Mo 189; Kelley v. Lawrence, 195 Mo. 75; Bennett v Himmelberger, 116 Mo.App. 699; Dunn v Nicholson, 117 Mo.App. 374; Browning v. Railroad, 118 Mo.App. 449; Loehring v. Westlake Co., 118 Mo.App. 163; Kane v. S. L. K. C. Co., 112 Mo.App. 650; Rigsby v. Oil Co., 115 Mo.App. 297; Wojtylak v. Coal Co., 188 Mo. 284. (2) The court erred in permitting plaintiff and the various witnesses to testify that the connections with the mixer could have been made differently; and the power to operate could have been furnished differently; and that such connections and ways would have been safer than the conditions used and way resorted to. Post v. C. B. & Q. Ry., 121 Mo.App. 562; Bennett v. Himelberger, 116 Mo.App. 699; Kelley v. Lawrence, 195 Mo. 75; Dunn v. Nicholson, 117 Mo.App. 374; Browning v. Railroad, 118 Mo.App. 449; Leohring v. Westlake Co., 118 Mo.App. 163. (3) The case falls in the domain of conjecture, and as it is equally reconcilable with contributory negligence, or with the theory of inexplicable unforeseen and unanticipated accident pure and simple as with negligence on the part of defendant, the verdict must be for defendant. Garranson v. Ritter Mfg. Co., 186 Mo. 300; Purcell v. Tennent Shoe Co., 187 Mo. 276; McGrath v. S. L. T. Co., 197 Mo. 97; Candle v. Kirkleride, 117 Mo.App. 412; Zeigermeyer v. Goetz Co., 113 Mo.App. 330; Bloomfield v. Worster Const. Co., 118 Mo.App. 254. Where work is of a shifting nature, the rule, obtaining generally between master and servant for a safe place, is relaxed, is modified. Dickey v. Dickey, 111 Mo.App. 304; Gibson v. Midland Co., 112 Mo.App. 594; Nash v. K. C. Co., 109 Mo.App. 600; Meehan v. S. L. M. Co., 114 Mo.App. 396; Bloomfield v. Worster Co., 118 Mo.App. 254. (5) Where, in an instruction, a higher degree of care is declared than the law warrants; where the instruction enlarges the issue as made by the petition; where it assumes material facts which are controverted in the issues; and where it purports to be on the whole case and yet omits material issues and matters of defence, such instruction is erroneous. In all of these respects instruction number one is faulty and fatal. Imboden v. S. L. T. Co., 111 Mo.App. 220; Haas v. Met. Ry. Co., 128 Mo.App. 79; Kerchner v. Concord Co., 127 Mo.App. 262; Wren v. Met. Ry., 125 Mo.App. 604; Bolles v. Railroad, 134 Mo.App. 696; Klein v. S. L. T. Co., 117 Mo.App. 691; York v. City of Everton, 121 Mo.App. 640; Bond v. C. B. & Q. Ry., 122 Mo.App. 207; Scandlan v. Gulick, 199 Mo. 449; Flaherty v. S. L. T. Co., 207 Mo. 318. (6) Every servant on entering service assumes those risks which are ordinarily and naturally incident to the character of work engaged in. Blundell v. Miller Mfg. Co., 189 Mo. 552; Lee v. S. Louis Co., 112 Mo.App. 372; Kane v. S. L. K. C. Co., 112 Mo.App. 650; Rigsby v. Oil Co., 115 Mo.App. 297. (7) The refusal to give Instruction "I" was error. This is bottomed on our defense of contributory negligence. It is the defense interposed. It is correctly declared. It is not covered by any other instruction. Holmes v. Brandenbaugh, 172 Mo. 53; Sheppard v. S. L. T. Co., 189 Mo. 362; Tinkle v. Railroad, 212 Mo. 445; Hardwood Co. v. Dent, 121 Mo.App. 108.

Moon & Moon, for respondent.

(1) Instruction number one, given by the court declaring that the very highest degree of care was required is correct, because it is the law in cases of this character. Trout v. Gas Co., 151 Mo.App. 207, 132 S.W. 58; Clark v. Railroad Co., 234, Mo. 396, 137 S.W. 583; Geisman v. Missouri-Edison Electric Co., 173 Mo. 654; Ryan v. St. Louis Transit Co., 190 Mo. 621; Young v. Oil Co., 185 Mo. 635; Von Treba v. Gas Co., 209 Mo. 648; Winkleman v. Light Co., 110 Mo.App. 184. (2) Not necessary to define "highest degree of care and foresight." Hyde v. Transit Co., 102 Mo.App. 537. Clerical error by court in using word "plaintiff" in place of "defendant" in instruction number 2, harmless error. Shortel v. City St. Joe, 104 Mo. 114; Wall v. Casualty Co., 111 Mo.App. 504; Bank v. Godsoll, 8 Mo.App. 596. (4) The admission of the evidence complained of by appellant could not possibly be prejudicial against appellant in the face of the law which required appellant to use the utmost care. No objection was made at trial on the ground that it was a conclusion. And the witnesses told the jury how and in what manner the wire could have been placed and protected. Harrison v. Light Co., 195 Mo. 634. (5) Assumption of risk is an affirmative defense and to be available must be pleaded. McMullen v. Railroad, 60 Mo.App. 231. (6) Even an instruction that purports to cover the whole case, need not cover defendant's defense. Meily v. Railroad Co., 215 Mo. 567.

FARRINGTON, J. Robertson, P. J., and Sturgis, J., concur.

OPINION

FARRINGTON, J.

This is an action for damages for personal injuries. Plaintiff recovered a judgment for one thousand dollars. Defendant has appealed.

The evidence in this case shows that plaintiff was an employee of the defendant company which maintained and operated a street railway system in the city of Springfield, driving its cars by the use of electricity. The injury in question was inflicted near defendant's car barns where plaintiff was engaged as a common laborer to assist in making a concrete foundation. The cement used in this work was prepared in a mixer which stood on a car on one of the tracks of the defendant company and which was operated by means of a wire carrying electric current to it. The injury occurred between five and six o'clock in the evening. The evidence of the plaintiff was that he was called by defendant's foreman and told to come and help move the mixer and that in performing this service his foot came in contact with the wire which carried the electric current to the machine. There is some conflict, but substantial evidence was introduced to show that the plaintiff was at the time he was injured at a place not only where he could be expected but where according to his testimony he was ordered to be by defendant's foreman. He testified that he first felt the shock coming through his foot and that in some way he was knocked down and one of his hands came in contact with the wire carrying the current. All the witnesses so testified as to show beyond question that the plaintiff came in contact with the wire and that he was severely shocked and that after his fellow workmen had gotten him loose from the wire he turned blue or black in the face. Plaintiff testified that the pain was intense and that he suffered great mental anguish. He reported for work the following morning, and sometime during the forenoon of the second or third day following the accident was sent to the company's physician who gave him some treatment the character of which is not disclosed. He was put to work carrying water, his condition being such that he was unable to perform the duties he had been engaged in. He had worked on this job and around this cement mixer for several days on this occasion and had also worked at some previous time around the same mixer when it was operated in practically the same way as it was when he was hurt. The evidence shows that in order to convey the electric current to the mixer it was necessary to splice a wire and carry it along on the ties under some of the cars to make a connection with the mixer. The place where this wire was spliced was not insulated, but the evidence shows that a board or boards were placed over the uninsulated point in the wire. Plaintiff was about twenty-two years of age when injured. His testimony concerning the injuries sustained is that a scar was left on his arm, that a hole was left in his back about as big as his thumb, that his hearing, though not good prior to the injury, had been much impaired, and that he had lost much sleep and suffered much pain, and had been unable from the time of the injury to the time of the trial to perform the same character of work he had theretofore been able to perform.

The following instructions were given (among others):

"1. The court instructs the jury that it was the duty of the defendant to exercise the highest degree of care and foresight to have and keep its wires, which were charged with a current of electricity such as to be dangerous to human life or safety if exposed, so insulated or guarded as to prevent injury to persons in its employ, by contact therewith while in the performance of their duty. So if you believe and find from the evidence that the defendant negligently caused to be placed about or near the place where the plaintiff was working a wire so charged with electricity as to render it dangerous, and that a part of such wire at or near the place where plaintiff was working was not insulated or guarded and that such lack of insulation or guard rendered it dangerous that plaintiff in the performance of his work was called upon to pass over or near said wire, and while so engaged, and while himself in the exercise of ordinary care, he stepped upon said uninsulated or unguarded portion of the wire and was injured thereby, then you will return a verdict for the plaintiff.

"2. You are instructed that although you find and believe that the plaintiff (defendant?) did not use the highest degree of care to protect or insulate the wire, yet if you further find that the plaintiff was himself...