Clonts v. Laclede Gas Light Company

• Decision Date: 07 November 1911
• Citation: 140 S.W. 970,160 Mo.App. 456
• Parties: BEULAH CLONTS et al., Respondents, v. LACLEDE GAS LIGHT COMPANY, Appellant
• Court: Missouri Court of Appeals

140 S.W. 970

160 Mo.App. 456

BEULAH CLONTS et al., Respondents, v. LACLEDE GAS LIGHT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

November 7, 1911

Appeal from St. Louis City Circuit Court.--Hon. Charles Claflin Allen, Judge.

AFFIRMED.

Judgment affirmed.

Percy Werner for appellant.

E. C Crow, Guy E. Golterman and Jeffries & Corum for respondents.

NORTONI J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

NORTONI, J.--

The appeal in this case was prosecuted to the Supreme Court, but the case was transferred to this court under the provisions of an act of the Legislature, approved June 12, 1909 (See Laws of Missouri, 1909, page 397; see, also, Sec. 3937, R. S 1909); and was thereafter transferred by this court to the Springfield Court of Appeals under the provisions of an act of the Legislature, approved June 12, 1909. [See Laws of Missouri 1909, page 396; see, also, Sec. 3939, R. S. 1909.] In due time the case was disposed of by the Springfield Court of Appeals in an opinion prepared by Presiding Judge NIXON of that court, as will appear by reference to Clonts v. Laclede Gas Light Co., 144 Mo.App. 582, 129 S.W. 238. Subsequently, the Supreme Court declared the legislative act approved June 12, 1909 (Laws of Missouri 1909, page 396; Sec. 3939, R. S. 1909), which purported to authorize the transfer of cases from this court to the Springfield Court, to be unconstitutional, as will appear by reference to the cases of State ex rel. Dunham v. Nixon, 232 Mo. 98, 133 S.W. 336; State ex rel. St. Louis Dressed Beef, etc., Co. v. Nixon, 232 Mo. 496, 134 S.W. 538; State ex rel. O'Malley v. Nixon, 233 Mo. 345, 138 S.W. 342. The cause was thereafter transferred by the Springfield Court of Appeals to this court, on the theory that the jurisdiction of the appeal continued to reside here and that proceedings had in the Springfield Court with reference thereto were coram non judice.

The case has been argued and submitted here and duly considered. Upon reading the record and considering the arguments for a reversal of the judgment, we find ourselves unable to concur in the views of the Springfield Court as expressed in the opinion referred to. [See Clonts v. Laclede Gas Light Co., 144 Mo.App. 582, 129 S.W. 238.] Indeed, as we read the record, some of the relevant facts tending to show liability on the part of defendant were neither stated nor weighed by the Springfield Court in its opinion. Those facts appear principally in plaintiff's additional abstract, which may have been inadvertently overlooked. The case will, therefore, be re-stated, to the end of developing the facts as we ascertain them to be from a reading of both the defendant's abstract and the additional one filed by plaintiff.

The suit is for damages accrued to plaintiffs through the alleged negligence of defendant, which resulted in the death of their father. It proceeds by their next friend in behalf of plaintiffs, Cordie, aged eight, and Beulah, aged five, infant daughters of S. C. Clonts, a widower, who came to his death from a charge of electricity entering his body while engaged in operating defendant's elevator. Plaintiffs recovered a verdict and judgment of $ 5000, from which defendant prosecutes the appeal. Defendant, incorporated, owns and conducts an extensive business as a manufacturer of gas and generator of electricity which it sells and transmits to its patrons in the city of St. Louis. At the time of his death, S. C. Clonts, father of plaintiffs, was in defendant's employ, engaged in removing debris from one floor to another of defendant's Station A at Second and Convent streets in St. Louis. He used a wheelbarrow in connection with this duty, and it appears he was required to transfer the wheelbarrow loads of debris from one floor of the building to another by means of an electric elevator which defendant maintained therein. This electric elevator was operated by means of a tiller rope, which is described in the evidence as an uninsulated iron or steel cable passing perpendicularly through the elevator around the sheave wheel in the bottom of the shaft to the drum, or motive power, above. To move the elevator up or down, it was Clonts' duty to grasp this uninsulated iron or steel cable, or tiller rope, with sufficient force to turn on the power. Deceased approached the elevator with a wheelbarrow loaded with debris and grasped the tiller rope, as was usual, for the purpose of moving the carriage, when a charge of electricity was communicated from the uninsulated cable, or tiller rope, into his body with sufficient force to occasion his instant death. The elevator, which Clonts was so occasionally required to operate, was propelled by an electric motor which employed a direct electric current of 500 volts. This power, though generated on the premises, was communicated to the elevator by means of an insulated wire, or cable, which came into the building from outside and connected with other like wires of defendant. The petition avers that "at all times hereinafter mentioned defendant company negligently permitted large quantities of roving electricity dangerous to human life to pervade its said premises and said elevator and every part thereof." It then avers that at all times while said electricity was so roving and pervading defendant's premises, defendant negligently failed and omitted to protect said iron tiller rope and elevator and the person of deceased, S. C. Clonts, against said electricity by proper and usual insulation and appliances or other suitable safeguards. "That by reason of the presence of said roving electricity and by reason of defendant's said negligent failure to provide said iron tiller rope and said elevator and the person of said deceased with proper safeguards against said roving electricity, said elevator and all parts thereof were at all times liable to become charged with large quantities of electricity and was a dangerous and unsafe place for said S. C. Clonts to perform his said duties as laborer at defendant's said plant as aforesaid. That defendant at all times knew or by the exercise of due care might have known of the presence of said electricity on said premises and of the fact that said elevator, iron tiller rope and the person of said deceased were not supplied with proper safeguards to protect the same against invasion of said electricity and said impending peril to the life of deceased as aforesaid." It then avers that while Clonts was engaged in the line of his duty on September 6, 1905, and while in the act of grasping the iron or steel tiller rope of the elevator with the purpose to move it, he received into his body from such rope a powerful current of electricity, which caused his instant death. The charging portion of the petition then concludes as follows: "Plaintiffs charge the fact to be that the electricity which so entered the body of said S. C. Clonts was roving and uncontrolled electricity, which defendant had knowingly and negligently permitted to pervade its said premises, elevator and iron tiller rope; that the death of said S. C. Clonts was directly due to defendant's negligent failure to protect said iron tiller rope, elevator and person of deceased by means of proper safeguards and appliances against said roving and uncontrolled currents of electricity."

It is urged plaintiffs wholly failed to sustain the allegations of the petition and that the evidence conclusively shows Clonts came to his death through the sudden influx of 2000 or 2300 volts of electricity, occasioned by the crossing of the wires of defendant company with those of the Union Electric Light & Power Company at Taylor and Finney avenues, about five miles from the building in which Clonts was engaged. In support of this argument, it is said the petition charges defendant knowingly permitted certain roving electricity to pervade its premises at all times and, therefore, plaintiffs are not entitled to recover for an injury which resulted from a sudden influx of a very high voltage of electricity which occurred almost, or about, simultaneously with the death of Clonts and under such circumstances that defendant had no reason to anticipate it and no opportunity to either know of the impending danger or to protect against it. But though such be true, we believe the evidence amply supports the allegation of the petition and that it was competent for the jury to find therefrom that Clonts came to his death through the omission of defendant to safeguard the tiller rope and his person against the electricity which at all times pervaded defendant's premises. In this view, we accept defendant's argument, to the effect that the petition predicates the right of recovery on the failure of defendant to exercise the utmost care with respect to safeguarding the tiller rope, the elevator and the person of Clonts, against the electricity which pervaded the premises and was employed in the operation of the elevator. The averments of the petition go to the effect that Clonts came to his death from roving and uncontrolled electricity which defendant knowingly and negligently permitted to pervade its premises, elevator and iron tiller rope. In respect of such roving and uncontrolled electricity, which defendant knowingly permitted to pervade the premises, elevator and iron tiller rope, it is averred that defendant breached its duty in failing to protect the iron tiller rope, elevator and person of Clonts by means of proper safeguards and appliances, etc. Doubtless the pleader contemplated only that defendant breached its duty with respect to guarding against such uncontrolled and roving electricity as pervaded its premises and the elevator with the knowledge of defendant for such is the thought the language of the petition...