Cleary v. St. Louis Transit Co.

• Decision Date: 29 November 1904
• Citation: 108 Mo. App. 433,83 S.W. 1029
• Parties: CLEARY v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

83 S.W. 1029

108 Mo. App. 433

CLEARY v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

November 29, 1904.

STREET RAILROADS — NEGLIGENCE — LIVE WIRES — INJURIES TO HORSES — CONTRIBUTORY NEGLIGENCE — QUESTIONS FOR JURY.

1. In an action against a street railroad for injuries to a horse by contact with a live wire, evidence that one of defendant's wires, charged with sufficient electrical current to destroy life, was down upon a public thoroughfare of the city, made a prima facie case for plaintiff, and shifted to defendant the burden of establishing that the wire was down by no fault of its own.

2. The prevalence of a general strike suspending the operation of street cars, and the existence of attendant lawlessness, does not excuse the act of a street railway in permitting a wire charged with electricity to be down upon a street, but rather lends force to the charge of negligence in permitting electricity to be conducted through the wire at a period when it was not necessary for the movement of the cars.

3. In an action against a street railroad for injuries to a horse, caused by contact with a live wire, whether plaintiff exercised ordinary care in managing his horse, in view of the conditions and emergency confronting him, was a question for the jury.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by James Cleary against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. J. F. & R. H. Merryman, for respondent.

REYBURN, J.

This action originated before a justice in whose court judgment was recovered against appellant and its codefendant the city of St. Louis, but on appeal and trial anew in the circuit court a verdict was returned by the jury against appellant, the city being discharged by nonsuit. The basis of plaintiff's cause of action was alleged in his complaint to be that on or about the 18th day of May, 1900, defendant negligently allowed its trolley wire, charged with electricity, to hang down so that it came into contact with plaintiff's horse on an open public street of the city of St. Louis, killing the animal. The facts developed at the trial were that about 8 o'clock in the morning of the 18th of May, 1900, the plaintiff drove into Eighth street from Cass avenue, turning southward on the defendant's track, when he heard some one exclaim, "Wire down!" and he pulled to the right-hand side of the street, where he was...