Downs v. Missouri & Kansas Telephone Co.

• Decision Date: 05 February 1912
• Citation: 143 S.W. 889
• Parties: DOWNS v. MISSOURI & KANSAS TELEPHONE CO.
• Court: Missouri Court of Appeals

143 S.W. 889

DOWNS v. MISSOURI & KANSAS TELEPHONE CO.

Kansas City Court of Appeals. Missouri.

February 5, 1912.

1. ELECTRICITY (§ 15) — INJURIES TO LINEMAN — MAINTENANCE OF WIRES — LICENSEES.

Where two telephone companies whose wires ran along the same street, and in some cases were on the same poles, entered into an agreement whereby the servants of each could climb the poles of the other, to remedy defects, a servant of one company who climbed the pole of the other was more than a licensee, and each company owed the other the duty not to injure its servants.

2. ELECTRICITY (§ 15) — INJURIES TO LINEMAN — MAINTENANCE — AGREEMENTS.

Where two telephone companies whose wires ran along the same street, and in some cases on the same poles, entered into an agreement whereby the servants of each could climb the poles of the other to remedy defects, a servant of the one who climbed the pole of the second company was justified in pulling up the wires of the other to prevent them from touching the wires of his master.

3. PLEADING (§ 418) — DEMURRER — WAIVER.

A demurrer is waived by answering over after the demurrer is overruled, and going to trial.

4. ELECTRICITY (§ 19) — INJURIES TO LINEMAN — MAINTENANCE — ACTIONS — PLEADINGS — SUFFICIENCY.

In an action against a telephone company for damages for the death of a servant of another company, who had climbed the pole of defendant, a petition alleging that the companies had entered into an agreement whereby the servants of one might use the poles of the other, whenever necessary in the line of their employment, was, after a verdict, a sufficient allegation of a mutual privilege of the servants to handle the wires of the other company in making repairs on the lines of their own company.

5. DEATH (§ 104) — DAMAGES — INSTRUCTIONS.

In an action by a wife for the death of her husband, an instruction that she should be allowed such an amount as might be deemed fair with reference to the injuries resulting to her from the death of her husband not exceeding $5,000, and that in arriving at the amount, the mitigating and aggravating circumstances might be considered, being substantially in the language of the statute, was in its general nature correct.

6. TRIAL (§ 256) — INSTRUCTIONS — REQUEST — NECESSITY.

Where an instruction on the measure of damages for wrongful death was in its general nature correct, defendant, who requested no specific instructions, cannot object to its generality.

7. TRIAL (§ 253) — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

In an action for the death of a telephone lineman, killed while climbing the poles of defendant, another company, an instruction directing a verdict for defendant in certain instances, and disregarding plaintiff's contention that defendant company and the employing company had an agreement whereby the servants of each had mutual permission to climb the poles of the other, was properly refused.

8. TRIAL (§ 260) — INSTRUCTIONS — REQUESTS — REFUSAL.

A requested instruction covered by those given is properly refused.

Appeal from Circuit Court, Pettis County; Hopkins B. Shain, Judge.

Action by Olivia B. Downs against the Missouri & Kansas Telephone Company. From a judgment for plaintiff, defendant appeals. Affirmed

See, also, 145 Mo. App. 173, 130 S. W. 472.

Battle McCardle, Geo. F. Longan, and Gleed, Hunt, Palmer & Gleed, for appellant. C. C. Lawson and Sangree & Bohling, for respondent.

ELLISON, J.

Plaintiff's action is to recover damages on account of the death of her husband, which she charges to be the result of defendant's negligence. The judgment in the trial court was for her in the sum of $5,000.

Deceased was an employé of the Queen City Telephone Company in Sedalia, and defendant, the Missouri & Kansas Telephone Company, was likewise established there. An electric light company was also in operation, but in the hands of defendant Andrews as receiver. He was discharged as receiver, and the case, as to him, was abandoned at the trial. Each of the companies had poles and wires at the corner of a street in the city. The wires of the Queen City Company were on its own poles, but ran beneath the wires of the defendants. The wires of the defendants were both on the poles of the light company at or near that corner. There was evidence tending to show that the wire of the defendant telephone company, through its negligence, had sagged down so as to rest upon the wire of the Queen City Company; and at a short distance down the street the wires of the light company and the defendant telephone company were in contact through their negligence. The wire of the light company was an ordinary telephone wire. Deceased was what was known as a "trouble man" for the Queen City Company, and he was out to locate a difficulty in the operation of one of its phones. He discovered that the defendant telephone company's wire had dropped down until it was in contact with his company's wire at the corner of the street where the three companies had their wires, as we have already stated. He climbed the pole of the electric light company for the purpose of lifting the wire off of that of his company. When he reached a point near the cross-arm he took hold of the defendant telephone company's wire to pull it up. He was immediately killed by electricity.

The case was heretofore before this court. 145 Mo. App. 173, 130 S. W. 472. For reasons there explained the judgment was reversed, and the cause remanded for trial, with a suggestion that the petition be amended in certain particulars. These amendments were made. They related chiefly to alleging matter which would show that the deceased, as an employé of the Queen City Company, was more than a mere licensee to whom defendant owed no duty. The...