Clark v. St. Louis & Suburban Ry. Company

• Decision Date: 09 May 1911
• Parties: C. E. CLARK v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

137 S.W. 583

234 Mo. 396

C. E. CLARK v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant

Supreme Court of Missouri

May 9, 1911

Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.

Affirmed.

Boyle & Priest and T. M. Pierce for appellant.

(1) The court erred in refusing to grant the defendant a separate trial from its co-defendant, and further erred in refusing to allow defendant three peremptory challenges to the jurors upon the panel presented, from which the jury was selected which tried this case. R. S. 1899, secs. 694 and 3783; Hunt v. Railroad, 14 Mo.App. 160; Doyle v Railroad, 103 Mo.App. 19. (2) The court erred in refusing to instruct the jury at the conclusion of all the testimony that their verdict must be for defendant. (a) Because no negligence was shown on the part of defendant which caused any injury to plaintiff. Huber v Railroad, 66 N.W. 712; 4 Thompson on Negligence, sec. 3736; Walters v. Railroad, 64 App.Div. N. Y. 150; American Brewing Co. v. Talbot, 141 Mo. 683; Ray on Negligence of Imposed Duty, pp. 183-184; Fuch v. St. Louis, 167 Mo. 649; Ryan v. Railroad, 190 Mo. 621; Owings v. Oil Mill, 33 S.E. 511. (b) Because the plaintiff was guilty of contributory negligence. Haertel v. Power Co., 69 A. 282; Danville Street Car Co. v. Watkins, 34 S.E. 884; Railroad v. Moseley, 57 F. 922; Wray v. Power Co., 68 Mo.App. 380. (c) Because the negligence of the defendant, if any, was but the remote and not the proximate cause of injury to the plaintiff. Roddy v. Railroad, 104 Mo. 237; Keown v. Railroad, 141 Mo. 86; Beach on Contributory Negligence (2 Ed.), sec. 31; Wharton on Negligence, sec. 134; Shearman and Redfield on Negligence, sec. 26; Thompson v. Railroad, 140 Mo. 125; Stanley v. Railroad, 114 Mo. 606; Railroad v. Kellog, 94 U.S. 469. (3) The court erred in giving instruction 4 at the request of the Union Iron & Foundry Company. This instruction was erroneous because it rendered defendant liable, unless it exercised more than ordinary care for the safety of plaintiff and thus conflicted with instruction 1 given for the plaintiff, and was further erroneous in that it permitted plaintiff to recover against the defendant although the danger of the wires was obvious. Walker v. Railroad, 193 Mo. 483; Taylor v. Railroad, 137 Mo. 363; Epperson v. Postal Tel. Co., 155 Mo. 373. (4) The court erred in refusing to submit to the jury instructions 16 and 21 requested by the defendant. These instructions should have been given to the jury as requested, because if the defendant gave notice of danger to the foreman who had charge and direction of the men under him, it thereby excused itself from all injury to any of the workmen to whom notice of such warning would be imparted. Kiser v. Suppe, 133 Mo.App. 30; Story v. Railroad, 48 A. 288; Pittsfield Co. v. Shoe Co., 60 L. R. A. 116; Gagnon v. Dana, 41 L. R. A. 389; Towne v. Thompson, 46 L. R. A. 748; Bowe v. Hanking, 46 Am. Rep. 471; Jaffe v. Hortian, 15 Am. Rep. 438; Portsmouth Light Co. v. Honahan, 19 A. 1002. (5) The judgment is excessive. Reynolds v. Railroad, 189 Mo. 422; Devoy v. Railroad, 192 Mo. 197.

Wm. McNamee and A. R. Taylor for respondent.

(1) The first point made by appellant for a reversal is entirely without merit. Its contention is that appellant should have been granted a separate trial, citing Sec. 694, R. S. 1899 and Hunt v. Railroad, 14 Mo.App. 160. An inspection of the case cited shows that the court decided precisely against his contention. Section 3783, R. S. 1899, requires that, where there are several plaintiffs and defendants, each side must join in their challenges of the three jurors, exactly as the trial court required in this case. (2) Any person who maintains so dangerous and destructive an agent as electricity on his premises, where persons may lawfully be in and about their lawful business, must "use every protection accessible to insulate its wires at all places where people have a right to go, and to use the utmost care to keep them so; and for personal injuries to a person in a place where he has a right to be without negligence on his part contributing thereto, it is liable in damages." Geismann v. Electric Co., 173 Mo. 674; Ryan v. Transit Co., 190 Mo. 633; Young v. Oil Co., 185 Mo. 664. (3) There need be no contractural relation with the maintainer of electricity in a place where persons may lawfully be; without protection or insulation, it is a duty to the whole public, including the injured person, to use the care defined by the decisions to protect their persons and lives against injury and death from such dangerous agency. Young v. Oil Co., 185 Mo. 662; Geismann v. Missouri Edison Co., supra; Ryan v. Transit Co., supra. (4) The plaintiff was guilty of no contributory negligence. The wires appeared to be perfectly insulated. The eye could not detect the difference between the covering on the wires and perfect insulation. This was the evidence of respondent and Armstrong both, and there was no evidence to the contrary. Geismann v. Missouri Edison Co., 173 Mo. 676; Clements v. Electric Light Co., 44 La. Ann. 692; Ryan v. Transit Co., 190 Mo. 635. Under these cases there is no evidence of contributory negligence by respondent in this case. Certainly not as a matter of law, and this issue was submitted to the jury in plaintiff's instruction 1, and the verdict established the fact that the respondent was not guilty of contributory negligence as a matter of fact. (5) The negligence of appellant in failing to insulate the wires was the direct cause of the injury. This negligence was present and active at the instant that respondent received the shock and was the proximate cause under the cases cited. Clements v. Electric Co., 44 La. Ann. 692; Geismann v. Missouri Edison Co., 173 Mo. 674; Ryan v. Transit Co., 190 Mo. 633; Byerby v. Light Co., 130 Mo.App. 601; Day v. Light and Power Co., 136 Mo.App. 279; Harrison v. Light Co., 195 Mo. 628; Joyce on Electric Law (2 Ed.), sec. 445. If the injury flows directly from the negligent act it is of no consequence that the particular result was unusual or unforeseen; the negligent author of the injury is liable. Hoepper v. Hotel Co., 142 Mo. 388; Harrison v. Light Co., 195 Mo. 629. Appellant's third contention is that the trial court gave, at the request of the defendant Union Iron and Foundry Company, instruction 4. The point is made that this instruction exacted of appellant more than ordinary care as to the dangers of his work on appellant's premises where the dangerous condition of appellant's electric current was. The first answer to this complaint is that the language of the instruction is not amenable to the charge made by appellant. It is silent as to what "degree of care" it was incumbent on the appellant to use. The second answer to this contention is that under the Geismann case, supra, and the Ryan Case, supra, Byerly v. Light and Power Co., 130 Mo.App. 601, and Day v. Light and Power Co., 136 Mo.App. 279, the instruction was entirely correct, for they impose on appellant the utmost care in maintaining its electricity safely. The third answer is that this instruction was given at the instance of one of the defendants and not of this respondent. The plaintiff cannot be affected by instructions asked or given between defendants. Taylor v. Railroad, 137 Mo. 368; O'Rouke v. Railroad, 142 Mo. 353; Beave v. Transit Co., 212 Mo. 355. Again, this instruction is immune from criticism, if interpreted as appellant does in his contention. Ordinary care is a relative term, it means such care as a person of ordinary prudence would use under the same or similar circumstances. That is, ordinary care used with reference to an act, depends upon the nature of the act. Ordinary care always requires the performance of legal duty. In this case according to the decisions of this court cited and the general trend of decisions elsewhere, ordinary care requires that the maintainer of electricity on premises where persons may lawfully be, must use the utmost care to insulate. Geismann v. Missouri Edison Co., 173 Mo. 674; Beach on Contributory Negligence (3 Ed.), sec. 21. This instruction complained of was, therefore, entirely correct in its reference to the appellant as to the degree of care due from it to respondent, though it did not express any particular degree of care. (6) Instructions 16 and 21, were both incorrect in form and substance. That such a warning to the foreman, if given, and such a warning to this respondent, if given, was no warning at all, is held in the case of Clements v. Electric Light Co., 44 La. Ann. 696, cited with approval in Geismann Case, supra, at page 676. There was no warning that the apparently perfect insulation was, in fact, no insulation. The instruction 21, complained of, was vicious because it assumed that a warning of danger was given to Foreman Armstrong when there was a direct conflict of evidence as to the giving of any warning to Armstrong or any employee of the Union Iron and Foundry Company. It would have been reversible error to give an instruction assuming that such warning was given to Armstrong when all the evidence given for the plaintiff and the evidence of Armstrong himself contradicted such fact of warning. Railroad v. Stewart, 201 Mo. 498; Crow v. Railroad, 212 Mo. 610. The appellant owed the duty of keeping its wires safely and securely insulated. This duty it owed to every person who might lawfully come in proximity to the wires, whether under a contractural or other relation. The simple fact that human beings might lawfully come in contact with the uninsulated wires charged upon the appellant the duty of using every means accessible to insulate the wires and safeguard from injury such persons as would lawfully be in proximity to and in danger from the wires....