Epperson v. Postal Tel. Cable Co.

• Decision Date: 21 March 1899
• Citation: 50 S.W. 795,155 Mo. 346
• Parties: EPPERSON v. POSTAL TEL. CABLE CO.
• Court: Missouri Supreme Court

50 S.W. 795

155 Mo. 346

EPPERSON v. POSTAL TEL. CABLE CO.

Supreme Court of Missouri.

March 21, 1899.

PLEADING — DEMURRER — WAIVER — CONCLUSIVENESS — APPEAL — FAILURE TO OBJECT — INJURIES TO EMPLOYE — ASSUMPTION OF RISK — EVIDENCE.

1. The question of the sufficiency of a petition to state a cause of action is not waived, though defendant pleads over after the overruling of a demurrer to the petition, in view of Rev. St. 1889, § 2047, providing that an objection that the petition does not state facts sufficient to constitute a cause of action shall not be deemed to be waived by a failure to demur.

2. An employé trying a case against his employer for injuries incurred in the course of his employment, on the theory that it was incumbent on him to show that he did not assume the risk, cannot, on appeal, first object that the employer failed to plead that he had assumed the risk.

3. An experienced lineman, employed to attach wires to poles, felt a current in a wire, and informed his employer's foreman that the wire was too strongly charged with electricity to be handled with satisfaction, whereupon the foreman felt of the wire, and assured him that it was safe. The lineman then climbed a pole, and again felt the current, but made no further complaint, and continued his work until injured by a shock from the wire. Held, that a recovery on the ground that he relied on the foreman's assurance was not sustained.

4. A lineman is not entitled to recover of his employer for injuries caused by a shock from a wire that he was handling, where the evidence shows that the probabilities are equally strong that the shock was caused by lightning as by the induction of currents in the wire for which the employer would be responsible.

In banc. Appeal from circuit court, Jackson county; E. L. Scarritt, Judge.

Action by Thomas H. Epperson against the Postal Telegraph Cable Company. Judgment for plaintiff, and defendant appeals. Reversed.

Gage, Ladd & Small, for appellant. N. F. Heitman, for respondent.

SHERWOOD, J.

Action for $10,000 damages for injuries received while acting as lineman for defendant corporation, and through alleged negligence of defendant. The cause was tried on the first count in plaintiff's petition, which is nearly seven printed pages in length, and, in substance, the following: That defendant, a corporation, was proprietor of, operating, and constructing a line of telegraph from Chicago, Ill., to Indianapolis, Ind.; that such line was operated by means of wires stretched on poles, and a large gang of men was employed for the purpose of constructing such line, plaintiff being one of the number, and his duty being to climb poles and stretch wires; that Terwilliger was in charge of the gang of men, acting as foreman; that when within a few miles of Indianapolis, and on the 28th of September, 1891, the foreman negligently and carelessly commanded plaintiff to take the wires so being stretched, ascend the pole, and attach the wire to the pole, on which were other wires stretched; that the foreman knew, at the time of giving such command, or by the exercise of ordinary care might have known, that the wire plaintiff was ordered to ascend the pole with was in a dangerous condition by being charged with a dangerous intermittent current of electricity; that the carrying of such wire up the pole and attaching it, etc., would greatly imperil the life or limbs of plaintiff; that the wire thus being strung by the gang employed for the purpose was, and ought to be, a dead wire, without any current of electricity in it, and was expected by the members of such gang to be in that condition; that on the date aforesaid plaintiff observed an unexpected current of electricity in said wire, the existence of which in said wire was contrary to the ordinary course of plaintiff's employment of stringing a new wire through the country, and the risk arising from the existence of such current of electricity in said wire was a risk not ordinarily incident to the employment in which plaintiff was engaged in the stringing of such wire; that on one occasion, on the morning of the day mentioned, plaintiff observed the unexpected current of electricity in said wire, and, notifying the foreman of it, was told by him that if he noticed the existence of the current again he should notify him about it, and the latter would take steps to find out what the trouble was; that on the same morning, having again noticed the current of electricity in the wire, he again notified the foreman of that fact; that the foreman negligently failed to ascertain the cause of the existence of the current in the wire, and to protect plaintiff against such unusual danger; that just before plaintiff started up said pole, having handled the wire all day, only feeling the current of electricity at intervals, he again noticed that the current of electricity was in said wire, and complained to the foreman that "said wire was too strongly charged with electricity to be handled with satisfaction"; that thereupon the foreman picked up the wire, held it in his hands, said he felt nothing in it, and thereupon negligently and carelessly assured plaintiff the wire was all right, and ordered plaintiff to go ahead with his work; that plaintiff, relying on this statement of the foreman, and being lulled into a sense of security thereby, went up said pole in obedience to said order; that, after being notified of the intermittent current of electricity in said wire, it became the foreman's duty to investigate, and find out the cause of such wire being charged with electricity, etc.; that the foreman did not perform such duty in a careful manner, but negligently failed to do so, after being notified, etc.; that it was also the duty of the foreman to remove the cause of the existence of such current of electricity in said wire, which he could have done by cutting the wire behind the places where plaintiff and other climbers were at work; that this duty, also, defendant negligently failed to perform; that pursuant to the order aforesaid, negligently given, plaintiff, with the wire in his belt, mounted the pole; that when about 30 feet above the ground, while endeavoring to fasten the wire, by means of other wires, to the cross timbers on the pole, he received a shock of electricity from said wire; that it robbed plaintiff of consciousness, and caused him to fall heavily to the ground, etc., to his damage, etc.; and that this result was produced by the negligence of defendant, as aforesaid. It will be noticed that there is no charge in the count in question that defendant was guilty of any negligence in constructing its line, or that there was any defect in any portion of defendant's electrical apparatus; nor that the electricity by which plaintiff was shocked got into the wires through any negligence of defendant. The only negligence charged consists in the statement that Terwilliger, defendant's foreman, was guilty of negligence in ordering plaintiff to ascend the pole, and proceed with his work, stringing the wires, when knowing, or negligently failing to know, that they were occasionally charged with an intermittent current of electricity, which was dangerous; and that Terwilliger negligently failed to remove the cause of the existence of the current of electricity in the wire by cutting the wires behind the workmen then engaged in stringing the same.

1. Defendant demurred to this count, but on what grounds is not stated. The count was, however, adjudged sufficient, and defendant pleaded over. Notwithstanding this, the fundamental sufficiency of a petition always remains an open question, and this under a statutory provision announcing that, if the petition "does not state facts sufficient to constitute a cause of action, that such objection shall not be deemed to be waived"; and section 2047, Rev. St. 1889, places the failure to state facts, etc., on the same plane as the lack of jurisdiction over the "subject-matter of the action." Sweet v. Maupin, 65 Mo., loc. cit. 72, and other cases. The question of the fundamental sufficiency of the petition being thus an open one, it will now be examined. As before stated, the action is bottomed exclusively upon the negligence of the defendant. When this is the case, the action being that of a servant against his master for injuries received, in consequence of defective machinery, premises, material, or other instrumentalities provided for the prosecution of the work, the servant must allege and prove, not only that the danger or defect was known to the defendant, but was unknown to plaintiff, and any statement of claim which does not include both of these allegations of fact discloses no cause of action, and is, consequently, fatally defective. This is the rule announced in the leading case of Griffith v. Docks Co., 12 Q. B. Div. 493. In speaking on this subject Day, J., said: "The old form of declaration in such a case alleged that the danger was known to the master and unknown to the servant. That seems to me a reasonable form of alleging a cause of action. If either of those allegations is omitted, I think there is no cause of action. If a master employs a servant to do work for him, not knowing of any special or latent danger in the work, the servant takes the consequence of any danger there may be in it. The master does not mislead the servant, but only avails himself of his voluntary service. On the other hand, if the master knows of danger which the servant does not, it is clearly the duty of the master to communicate his knowledge of the danger to the servant. If the master requires the servant to do something out of the ordinary course of his employment, and dangerous, the servant may disobey him. It is clearly the duty of the master to communicate a danger which he knows and which the servant does not. It is necessary to allege that the servant does not know of the danger, because, if the servant knows of the danger,...