Corby v. Missouri & Kansas Telephone Co.

• Decision Date: 17 December 1910
• Citation: 132 S.W. 712,231 Mo. 417
• Parties: PERRY EUGENE CORBY v. MISSOURI & KANSAS TELEPHONE COMPANY, Appellants
• Court: Missouri Supreme Court

132 S.W. 712

231 Mo. 417

PERRY EUGENE CORBY v. MISSOURI & KANSAS TELEPHONE COMPANY, Appellants

Supreme Court of Missouri

December 17, 1910

Appeal from Clay Circuit Court. -- Hon. Francis H. Trimble, Judge.

Affirmed.

Battle McCardle and Gleed, Hunt, Palmer & Gleed for appellant.

(1) Plaintiff was engaged in tearing down old work for the reason that it was worn out and had to be replaced. Conditions with regard to safety changed continually as the work progressed. The unsafe condition, if there was an unsafe condition, arose on account of work done by plaintiff. For these reasons the rule that the master must furnish a safe place to work does not apply, and the risk was one which was assumed by plaintiff. Tweed v. Telephone Co., 114 N.Y.S. 607; Thompson on Negligence, sec. 3876; Montgomery v Robinson, 229 Ill. 466; Slagel v. Village, 139 Ill.App. 423; Gibson v. Bridge Co., 112 Mo.App. 599; Shearman and Redfield on Negligence, sec. 185; Ballard v Lee's Adm'r, 115 S.W. 735. The pole on which plaintiff was working was nothing but an ordinary log of wood, and the only defect possible was ordinary decay. Where a servant uses simple appliances or structures of this kind he assumes the risk of defects arising from ordinary wear, tear and decay, as he is in as good position to ascertain and comprehend the defect as the master. Forbes v. Dunevant, 198 Mo. 209; Beckman v. Brewing Association, 98 Mo.App. 555; Miller v. Railroad, 47 N.Y.S. 285; Marsh v. Chickering, 101 N.Y. 396; Cahill v. Hilton, 106 N.Y. 512; Cregan v. Marston, 126 N.Y. 568; Patnode v. Harter, 20 Nev. 303. Wooden poles placed in the ground decay at uncertain intervals. Linemen assist in erecting poles and in keeping them in repair, and in replacing them when they are decayed. Linemen are taught as a part of their duty how to test poles, and are the only ones who climb the poles. It would therefore be an absurdity to send an inspector out ahead of the linemen to inspect poles for the linemen. On account of all the reasons given above, it is universally held that it is the duty of a lineman to inspect poles for defects before climbing them. Miller v. Telephone Co., 141 Mo.App. 462; Roberts v. Telephone Co., 166 Mo. 370; Junior v. Power Co., 127 Mo. 79; Epperson v. Postal Co., 155 Mo. 373; Sias v. Light Co., 50 A. 554; McGorty v. Telephone Co., 38 A. 359; Tanner v. Railroad, 62 N. E. (N. Y.) 993; Krimmel v. Illuminating Co., 90 N.W. 336; Saxton v. Telephone Co., 84 N. W. (Minn.) 109; Broderick v. Railroad, 77 N. W. (Minn.) 28; Dixon v. Telephone Co., 68 F. 630; Greene v. Telephone Co., 72 F. 250; Kellogg v. Tramway Co., 72 P. 609; McIsaac v. Light Co., 51 N. E. (Mass.) 524; Evansville Co. v. Railey, 76 N. E. (Ind.) 548; Cahill v. Hilton, 13 N. E. (N. Y.) 341; Southwestern Co. v. Tucker, 114 S.W. 790. The only exception to the foregoing rule which has ever been recognized is where the master assumes the duty of inspection and refuses the lineman an opportunity to inspect. In this case it is shown without contradiction that linemen are required to inspect for themselves in Missouri; Pennsylvania; Davenport, Iowa; Detroit, Michigan; Cleveland, Ohio; Illinois; Ohio; Indiana; Des Moines, Iowa; Arkansas; Cincinnati, Ohio; and Kansas City, Missouri. As against this there is only plaintiff's testimony that he had not tested poles on the Pacific coast and that he did not test at Fort Scott, where the injury occurred. The custom, or practice, on the part of plaintiff, or other employees, of doing work in an unsafe manner would not excuse plaintiff. Crocker v. Schureman, 7 Mo.App. 358; Carrier v. Railroad, 61 Kan. 447; Loranger v. Railroad, 104 Mich. 80; Railroad v. Robins, 43 Kan. 145; George v. Railroad, 109 Ala. 245; Larson v. Ring, 43 Minn. 88; Railroad v. Clark, 108 Ill. 113; Railroad v. Evansich, 61 Tex. 3. Plaintiff testified that it was not his duty to inspect poles. This was a mere conclusion of law. 12 Ency. Pl. and Pr., 1040. Duty must arise either from employment or by operation of law. Plaintiff testified that he had never been told not to inspect and had never been told that anyone else would inspect for him. The duty he testified to, therefore, did not arise out of contract of employment, and the authorities above cited show conclusively that it did not arise by operation of law. Plaintiff's testimony that it was not his duty to inspect was, therefore, a mere erroneous conclusion of law on his part, and insufficient to take this case out of the general rule shown by the authorities cited above. (2) Plaintiff's sixth instruction directed the jury to allow plaintiff for loss of time and earnings, past and future. The petition did not ask for such allowance. The instruction was therefore erroneous. Coontz v. Railroad, 115 Mo. 674; Mallor v. Railroad, 105 Mo. 462; Keen v. Railroad, 129 Mo.App. 305; Dutsch v. Ables, 15 Mo.App. 398; Smith v. Railroad, 108 Mo. 243; Pryor v. Railroad, 85 Mo.App. 367; Stoetzle v. Swerenger, 96 Mo.App. 592; Waldopfel v. Transit Co., 102 Mo.App. 524. (3) The damages ($ 22,500) are excessive. Reynolds v. Railroad, 189 Mo. 408; Brady v. Railroad, 206 Mo. 509; Stoltze v. Railroad, 188 Mo. 581; Davidson v. Railroad, 211 Mo. 320; Gibney v. Railroad, 204 Mo. 704; Chitty v. Railroad, 166 Mo. 435; Furnish v. Railroad, 102 Mo. 438; Gurley v. Railroad, 104 Mo. 211.

Boyle, Guthrie, Howell & Smith for respondent; Jos. S. Brooks of counsel.

(1) No invariable rule can be laid down whereby it can be declared as a matter of law that a master is relieved from the duty of inspection. The duty of the master must necessarily depend upon the circumstances of the case. And the rule applies to telephone companies. The following cases hold it the duty of the company to inspect. Telephone Co. v. Holtby, 29 Ky. L. R. 523; McGuire v. Telephone Co., 167 N.Y. 208; Edison Co. v. Dixon, 17 Tex. Civ. App. 320; Dawson v. Gaslight Co., 188 Mass. 481; Telephone Co. v. Woughter, 56 Ark. 192; Williams v. Lumber Co., 132 Ga. 221; W. U. Tel. Co. v. Tracy, 52 C. C. A. 168 (114 F. 282); Telephone Co. v. Bills, 62 C. C. A. 620 (128 F. 272); Weiden v. Light Co., 73 Mich. 268; Electric Co. v. Kelly, 61 N. J. L. 289; Walsh v. N. Y. Co., 178 N.Y. 588; McDonald v. Telephone Co., 22 R. I. 131; Bell Co. v. Clements, 98 Va. 1; Dupree v. Alexander, 29 Tex. Civ. App. 31; Clairain v. W. U. Tel. Co., 40 La. Ann. 178; Munroe v. Hey, 156 F. 468. (2) The court did not err in giving plaintiff's sixth instruction. It was in accord with the petition and evidence, and follows approved precedents. The measure of damages was correctly defined. Devoy v. Railroad, 192 Mo. 197; Gurley v. Railroad, 122 Mo. 141; Smith v. Railroad, 119 Mo. 246. (3) The damages were not excessive. The injuries sustained were grave and permanent and plaintiff is permanently disabled and crippled by them. He is permanently disabled from walking. Minter v. Bradstreet, 174 Mo. 504; Dowd v. Air Brake Co., 132 Mo. 579; Woodson v. Scott, 20 Mo. 372; Longan v. Weltmer, 180 Mo. 322; Copeland v. Railroad, 175 Mo. 650.

WOODSON J. Valliant, C. J., Gantt, Woodson and Kennish, JJ., concurring; Lamm and Graves, JJ., dissenting; Burgess, J., not sitting.

OPINION

In Banc.

WOODSON, J.

This suit was begun by the plaintiff against the defendant in the circuit court of Jackson county, to recover $ 36,000 as damages for personal injuries sustained by him through the alleged negligence of the company, while he was assisting in tearing down an old and rebuilding a new telephone plant in the city of Fort Scott, Kansas, on the 5th day of December, 1905.

It is necessary, in order to understand some of the legal questions presented by this record, to set out the petition upon which the cause was tried. It reads as follows (formal parts omitted):

"Plaintiff says that the defendant is now, and was at all the times hereinafter complained of, a corporation duly organized and existing according to law, and engaged in the business of operating and maintaining a system of lines of telephone in the States of Missouri, Kansas and elsewhere. As a part of its said system and lines it does now, and did at all the times herein complained of, operate telephone lines in the city of Fort Scott, in the State of Kansas. As a part of said system at Fort Scott, its telephone wires are, and were at all the times herein complained of, strung on wooden poles. On or about December 5, 1905, plaintiff was in the employ of the defendant in the capacity of a lineman, and in the performance of his duties as such lineman he was directed by defendant, and it was necessary as a part of his duties as such employee of defendant, to climb upon a wooden pole then being used, maintained and controlled by and for the defendant, for the purpose of performing certain work for the defendant thereon. While he was on said pole, and at a height thereon of about twenty feet from the ground, said pole broke and fell because of its rotten, weak and defective condition, thereby causing plaintiff to fall to the ground and pavement below, and inflicting upon him great and lasting injuries. As the result of said fall his sacrum and coccyx were broken, fractured, bruised and injured, and plaintiff was injured and bruised in all parts of his body, head and limbs, and he received a severe shock and concussion to his spine, spinal cord and brain, his abdominal walls were ruptured, bruised and broken, and the organs of his body were wounded, shocked and injured. As the result of said injuries plaintiff has suffered from dizziness, numbness and vertigo and he has permanently lost the control and use of his legs and the same have been paralyzed, and his organs refuse and will always refuse to perform their functions. His eyes were and will continue to be affected by said injuries, and his eyesight has...