Conduitt v. Trenton Gas & Elec. Co.

• Citation: 31 S.W.2d 21,326 Mo. 133
• Parties: Wilbur E. Conduitt, Executor of Estate of M. Jessie Conduitt, v. Trenton Gas & Electric Company, Appellant
• Decision Date: 04 September 1930
• Court: United States State Supreme Court of Missouri

31 S.W.2d 21

326 Mo. 133

Wilbur E. Conduitt, Executor of Estate of M. Jessie Conduitt, v. Trenton Gas & Electric Company, Appellant

Supreme Court of Missouri

September 4, 1930

Appeal from Grundy Circuit Court; Hon. L. B. Woods, Judge.

Reversed and remanded.

Sparrow & Patterson and McCune, Caldwell & Downing for appellant.

(1) Plaintiff abandoned the res ipsa loquitur case pleaded and thereby assumed the burden of proving the specific negligence relied upon; having failed to prove such negligence, defendant's demurrer to the evidence should have been sustained. Heidt v. Motor Bus Co., 219 Mo.App. 683; Cook v. Light & Power Co., 232 S.W 248; McAnany v. Shipley, 187 Mo. 396. (2) The hypothetical question propounded to witnesses Moore and Rooks was improper because the question and the answers of the witnesses assumed the following facts not in evidence: (a) That plaintiff was standing on decayed water-soaked boards (b) That the wire in plaintiff's house with which she claims to have come in contact carried 1200 to 1800 volts of electricity. Cardinal v. Kemp, 309 Mo. 275; Hild v. St. Louis Car Co., 259 S.W. 842; Ridenour v Mines Co., 164 Mo.App. 593; McAnany v. Henrici, 238 Mo. 116. (3) Plaintiff's statements made to her witnesses in conversation with them, long after the date of her injury, that she had received an electric shock, and that such shock was the cause of her injuries, and that her doctor told her that the shock caused her injuries, being hearsay as to such witnesses, self-serving as to plaintiff, and the mere narration of past events, were inadmissible. 1 R. C. L. 493; 22 C. J. 266; Dunlap v. Railroad, 145 Mo.App. 221; Brashear v. Mo. Pac. Ry. Co., 6 S.W.2d 651; Hooper v. Ins. Co., 166 Mo.App. 211; Freeman v. Ins. Co., 196 Mo.App. 383; Townsend v. Schaden, 275 Mo. 244; Fishback v. Prock, 311 Mo. 507. The testimony of witness, Mrs. Clements, as to how the shock, which she claims to have received about the time plaintiff claims to have been shocked, affected her, and the extent to which, and the manner in which, it injured her, related wholly to collateral facts and not to facts in issue and should have been excluded. Horr v. Ry. Co., 156 Mo.App. 651; Gates v. Ry. Co., 44 Mo.App. 493. (5) Witnesses Fox and Billings, when they testified that the manner of wiring which they found from their examination of defendant's system was "not reasonably safe," invaded the province of the jury. Spaulding v. Edina, 122 Mo.App. 69; Graney v. Ry. Co., 157 Mo. 682. (6) If plaintiff's evidence was sufficient to warrant submission of the case to the jury, which defendant denies, it was error to give Instruction 2 requested by plaintiff, because it predicated defendant's liability on the res ipsa loquitur theory, which had been abandoned. Heidt v. Motor Bus Co., 219 Mo.App. 683; Cook v. Light & Power Co., 232 S.W. 248; McAnany v. Shipley, 187 Mo. 396. (7) Instruction 4 given at plaintiff's request, in effect inviting the jury to ignore expert testimony, was erroneous and has been repeatedly so held by this court. Spencer v. Railroad Co., 297 S.W. 353; High v. Railroad Co., 300 S.W. 1102; Brees v. Ry. Co., 4 S.W.2d 426.

Hubbell Bros. for respondent.

(1) Plaintiff's second instruction is correct. Price v. Met. Street Ry. Co., 220 Mo. 456; 32 Am. St. 588; Porter v. St. Joseph Ry., Light Heat & Power Co., 277 S.W. 916; Trowbridge v. Fleming, 269 S.W. 615; McAllister v. Pryor, 34 A. L. R. 25; San Juan Light & T. Co. v. Requena, 56 L.Ed. 680, 224 U.S. 89. (2) The hypothetical questions propounded to plaintiff's medical and electrical experts are based on the evidence. (3) Plaintiff's complaint that she had received an electric shock is only descriptive of the kind of pain and suffering then being endured by her. McHugh v. Transit Co., 190 Mo. 95; Lindsay v. Kansas City, 195 Mo. 181; Smith v. Wilson, 296 S.W. 1041; Northern Pac. Railroad Co. v. Urlin, 39 L.Ed. 981, 158 U.S. 273; Chicago Rys. Co. v. Kramer, 234 F. 250; Travelers' Ins. Co. v. Mosley, 19 L.Ed. 440, 8 Wall. 397. (4) Defendant contends that plaintiff received only a slight tingle, if anything. To prove that the shock was more than a tingle, plaintiff proved that another woman was severely shocked. The extent and severity of the electric shock of the plaintiff, is the question at issue. Morrow v. Mo. Gas & Elec. Serv. Co., 315 Mo. 390. (5) The expert testimony of witnesses Fox and Billings, is legal evidence. Busch & Latta Painting Co. v. Woermann Const. Co., 310 Mo. 419; Coy v. Dean, 4 S.W.2d 839; Trans. Line v. Hope, 24 L.Ed. 477, 95 U.S. 297; Texas & R. Co. v. Watson, 47 L.Ed. 1059, 190 U.S. 287; 22 C. J. 686; Kreigh v. Westinghouse, C. K. & Co., 53 L.Ed. 984, 214 U.S. 249; Fairfield v. Bicher, 195 Mo.App. 51; Coin v. Lounge Co., 222 Mo. 488. (6) Plaintiff's instruction numbered 4 is not prejudicial. Plaintiff's instructions 1, 5 and 7 required the jury to consider all of the testimony of the witnesses in connection with all of the instructions. The only electrical experts who testified in the case, were put on the stand by the plaintiff. The defendant did not introduce any electrical expert. The cause of the injuries to the plaintiff, was the real issue tried by the jury. On this issue, the evidence of the electrical experts of the plaintiff, are the only experts to which this instruction directly applied. R. S. 1919, p. 654; Hubbard v. Ry. Co., 193 S.W. 579; Applegate v. Ry. Co., 252 Mo. 175; Kilburn v. Milwaukee, 289 Mo. 75, 232 S.W. 1017; Kidd v. Rock Island, 310 Mo. 1, 274 S.W. 1079; Shaffer v. Rock Island, 300 Mo. 477, 254 S.W. 257; Brock v. Rock Island, 305 Mo. 502, 266 S.W. 690; Youtsey v. Rock Island, 259 S.W. 771; Brown v. Rock Island, 286 S.W. 45; Laughlin v. Ry. Co., 275 Mo. 473; State v. Crane, 202 Mo. 85; State v. Weagley, 286 Mo. 677; Kilpatrick v. Haley, 41 P. 508, 6 Colo.App. 407; Sanders v. Graves, 105 F. 850; Sanders v. Graves, 125 F. 690; Willard v. Williams, 50 P. 208, 10 Colo.App. 140, Ann. Cas. 1914D, 371; Davis v. School Dist., 84 Neb. 858, 122 N.W. 38; Blakely v. Cabelka, 212 N.W. 348; Spencer v. Collins, 104 P. 323, 156 Cal. 306, 20 Ann. Cas. 49; Grawe v. Schmidt's Estate, 293 S.W. 375; Hull v. St. Louis, 138 Mo. 618; Head v. Hargrave, 26 L.Ed. 1028, 105 U.S. 45; City of Kansas v. Butterfield, 89 Mo. 646; McReynolds v. Smith, 172 Ind. 336; Hoyberg v. Henske, 153 Mo. 63; Schiepers v. Mo. Pac., 298 S.W. 55; Alexander v. Blackburn, 178 Ind. 66, Ann. Cas. 1915B, 1091; Markey v. Railroad, 185 Mo. 345; Ulrich v. Ry Co., 281 Mo. 697.

Ellison, C. Lindsay and Seddon, CC., concur.

OPINION

ELLISON

M. Jessie Conduitt instituted this action to recover damages for alleged personal injuries sustained from a shock received when turning on an electric light in her residence in the city of Trenton. She recovered a verdict and judgment for $ 20,000, from which the defendant has appealed. The case was tried on an amended petition charging negligence generally, and an answer in the form of a general denial. The plaintiff's death having occurred pending the appeal the cause was revived here in the name of her executor, the respondent herein. References hereinafter made to respondent are intended to apply to the plaintiff, who was the original respondent. The assignments of error on this appeal complain of the overruling of appellant's demurrer to the evidence, of the admission and exclusion of evidence, of the misconduct of the jury, of the giving and refusal of instructions, of the size of the verdict, and the argument of respondent's attorneys.

The evidence tended to show that at the time of the alleged accident and long prior thereto the appellant owned and operated an electric light plant and a system of poles, wires, transformers and other equipment for the generation and distribution of electric current for light and power in Trenton, and had no competitor in that enterprise in that city. The respondent was a resident of Trenton and her residence was supplied with electric current by the appellant for compensation. The current was conducted over appellant's service wires to the outside of the building, at which point the wires were connected with the interior wiring of the house. The latter, with the lighting appliances, had some years before been installed by respondent's predecessor in title. The appellant's system of wires in the immediate vicinity of respondent's residence consisted, first, of a primary line carrying 2300 volts of electricity and running from the generating plant to a transformer located about two blocks away. By means of the transformer the current was reduced to 110 volts for use in the residence served by that circuit, and was conducted thereto over the service wires aforesaid, which were intended to carry and usually did carry 110 volts. These service wires were on cross-arms attached near the tops of the poles, and the cross-arm carried another wire which furnished the current for the street lighting system. At the time in question the street lighting wire was charged with a current of probably 1600 to 1800 volts. The secondary wires were not grounded at the transformer.

Respondent a spinster thirty-nine years of age, testified in substance that on the evening of August 14, 1924, at about 9:30 o'clock she undertook to turn on certain lights in her residence which were operated by drop chains. When she pulled the chain of the dining room light she "got a terrible jerking sensation, a shock in her left arm." A few minutes later she undertook in the same way to turn on the light in the lavatory under the stairway. "She had to pull the light socket off the wall in order to get loose. She had that terrible gripping sensation down through her left hand and arm." She had taken the chain in her left hand in each instance. When asked about the...