Eads v. Galt Telephone Co.

• Decision Date: 31 December 1917
• Docket Number: No. 12551.,12551.
• Citation: 199 S.W. 710
• Parties: EADS v. GALT TELEPHONE CO.
• Court: Missouri Court of Appeals

199 S.W. 710

EADS v. GALT TELEPHONE CO.

No. 12551.

Kansas City Court of Appeals. Missouri.

December 31, 1917.

Appeal from Circuit Court, Grundy County; G. W. Wannamaker, Judge.

"Not to be officially published."

Action by Herbert Eads against the Galt Telephone Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Platt Hubbell and George H. Hubbell, both of Trenton, for appellant. O. G. Bain and H. J. Bain, both of Trenton, for respondent.

ELLISON, P. J.

Plaintiff is a farmer who owned a horse which he had turned into his pasture. Defendant is a telephone company operating a telephone line, the wires of which run through plaintiff's pasture. It seems that the wire hung low, and the horse became entangled in it, receiving such injuries that it died. Plaintiff thereupon instituted this action, alleging defendant's negligence, and recovered judgment in the circuit court.

The charge of negligence is stated in the petition as follows:

"That on said 12th day of September, 1915, and long prior thereto, the defendant had negligently and carelessly permitted its said telephone line to become out of repair and loose from the poles and cross-arms thereon, so that said telephone wire was down upon the ground in plaintiff's pasture."

Instruction 1 given for plaintiff submits generally whether the wire was loose and out of repair, but does not submit the specific charge that the "line" became "loose from the poles and cross-arms thereon." Instruction No. 2 submits whether defendant "negligently or carelessly permitted its telephone line to become out of repair and down near the ground," etc. No. 4 has the fault of the other two.

Each of these instructions is erroneous in that each omits to submit the specific charge that the wire became loose from the poles and cross-arms. When a plaintiff chooses to be specific in his allegations, he must also be specific in his instructions. The particular thing charged must be submitted to the jury. Degonia v. Railroad, 224 Mo. 564, 589, 123 S. W. 807; Strode v. Columbia Box Co., 250 Mo. 695, 701, 158 S. W. 22; State ex rel. v. Ellison (Sup.) 195 S. W. 722, 724.

Plaintiff's instruction No. 3 is argumentative, and, in effect, is a comment of the evidence, and is therefore erroneous. It is insisted by defendant that plaintiff was guilty of contributory negligence as a matter of law in turning his horse into the pasture, knowing the dangerous condition of the telephone wire. We think the...