Downs v. Andrews

• Decision Date: 28 June 1910
• Parties: DOWNS v. ANDREWS et al.
• Court: Missouri Court of Appeals

130 S.W. 472

145 Mo. App. 173

DOWNS v. ANDREWS et al.

Kansas City Court of Appeals. Missouri.

June 28, 1910.

1. NEGLIGENCE (§ 2)—VIOLATION OF DUTY.

Negligence is bottomed on a violation of duty, so that, no duty being owed, there can be no liability for negligence.

2. ELECTRICITY (§ 15) — INJURIES — PERSONS PRESENT BY INVITATION—DUTIES OWING TO THEM.

Where three companies, two telephone companies and an electric light company, having lines near together at a corner, mutually agreed, in view of the fact that the lines of either might get out of order, that either company might use the poles of the others in restoring the lines to their proper condition or place, an employé of one such company when on a pole, on which the wires of the other two companies were strung, to lift from a wire of his employer the wire of one of the other companies, was more than a mere licensee; he was there by invitation of the other companies; so that they were under a duty not to endanger his safety by shock.

3. PLEADING (§ 428) — PETITION—CONSTRUCTION IN FAVOR OF.

Where the sufficiency of a petition is attacked, not by demurrer, but by objection at the trial to any evidence being admitted under it, every intendment is to be taken in favor of the petition.

4. ELECTRICITY (§ 19)—INJURIES — ACTION — PETITION:

As against an objection at the trial to any evidence being admitted under the petition for death by shock of an employé of a telephone company while on the pole of an electric light company, on which were strung the wires of the electric light company and a second telephone company, the statement, treated as part of the petition, that it was a custom on the part of all the companies to use each other's poles to rectify trouble that might come up, will be treated as an allegation of a mutual permission, agreement, or understanding between the three companies that each might go up the poles of the others to put their lines in order, including the lifting, from the wire of one so acting, of the wire of one of the others.

Appeal from Circuit Court, Pettis County; Lewis Hoffman, Judge.

Action by Olivia B. Downs against Lewis P. Andrews, receiver, and another. Judgment for defendants, plaintiff appeals. Reversed and remanded.

C. C. Lawson and Sangree & Bohling, for appellant. John H. Bothwell and Charles E. Yeater, for respondents.

ELLISON, J.

Plaintiff's husband was in the employ of the Queen City Telephone Company, at Sedalia, Mo., and while engaged in putting one of its lines in order he was killed by an electric shock caused, as she alleges, by the negligence of the two defendants. At the opening of the trial plaintiff's counsel made a statement of her case to the jury, and thereupon, at the offer of evidence in her behalf, defendants objected to receiving any, on the ground that the petition, in connection with the statement, did not show a cause of action. The objection was sustained, and plaintiff took a nonsuit with leave, and, failing to have it set aside and a new trial granted, appealed.

It will be observed that the deceased, an employé of one telephone company, is charged to have been killed by reason of the negligence of another telephone company and an electric light company. The two are made joint defendants. The latter is in the hands of a receiver, and the complaint is formally against him, but we shall use the name of the company. The facts stated are that the three companies had poles and wires at and near the corner of a street in Sedalia. The wires of the deceased's employer, the Queen City Company, were on its own poles; but the wires of the two defendants, at and near that corner, were both on the poles of the electric light company. The wires of the Queen City Company ran under the wires of the defendants; and the wire of the defendant telephone company, through its negligence, had sagged down so as to come in contact with and rest upon the wire of the Queen City Telephone Company. The wires of the two defendants, through the negligence of each, had come in contact with each other at a point about 200 yards distant from the pole at the corner. The wires of the defendant the electric light company, though used to convey electricity for lighting purposes, were only ordinary telephone wires, and they were charged in deadly voltage. The wires of the three companies were thus connected; that is, the wires of the defendant the electric light company and of the defendant telephone company were connected at a point about 200 yards from the pole at the corner, and the wires of the latter company were connected with the wires of the Queen City Company. Neither of the wires of the defendant companies was insulated, and thus the high voltage in the electric light company's wire was transferred into the wires of the defendant telephone company.

The deceased was what was known as the "trouble man" for the Queen City Company, and it had been reported to that company by one of its patrons that something was wrong with his phone, in that there was a confusing noise when he used it. The deceased was sent out to locate the trouble. He discovered that the defendant the telephone company's wire had dropped or sagged down until it was in contact with the Queen City wire, and he climbed the pole of the electric light company at the corner for the purpose of lifting the defendant telephone company's wire off of that of his company. When he reached the cross-arm, he took hold of the defendant telephone company's wire to...