Frazier v. St. Louis Smelting & Refining Co.

• Decision Date: 12 July 1910
• Court: Missouri Court of Appeals
• Parties: FRAZIER v. ST. LOUIS SMELTING & REFINING CO.

130 S.W. 485

150 Mo. App. 419

FRAZIER v. ST. LOUIS SMELTING & REFINING CO.

St. Louis Court of Appeals. Missouri.

July 12, 1910.

1. MASTER AND SERVANT (§ 278)—INJURY TO SERVANT—EVIDENCE.

In an action for injuries to a servant by a live wire, evidence held to justify a finding that the wire was concealed as alleged in the petition.

2. MASTER AND SERVANT (§ 190)—INJURIES TO SERVANT—CARE REQUIRED OF FOREMAN.

Where a foreman receives notice of the existence of electric currents in the ground where servants were working, and knew that the currents came from some defective wire, he must, irrespective of any other matter in which he is engaged, take instant action to seek out the danger and remove it, and to permit any time to elapse or to permit the servants to work in that vicinity with knowledge of the peril is negligence.

3. APPEAL AND ERROR (§ 1064)—HARMLESS ERROR—ERRONEOUS INSTRUCTIONS.

Where only one witness testified to a fact, and he was not contradicted, a charge singling out his evidence and commenting thereon was not reversible error.

4. DAMAGES (§ 216)—PERSONAL INJURIES — EVIDENCE—INSTRUCTIONS.

Where the petition, in an action for personal injuries by electric shock, alleged that plaintiff's nervous system was wrecked, and that he was thereby permanently injured, and plaintiff testified that he continued to feel the effects of the shock so that at times he would feel as though he received an electric shock, a charge permitting damages for physical pain and mental anguish which plaintiff was reasonably sure to suffer in the future was not erroneous, though there was no expert testimony that his injuries were permanent.

Appeal from Circuit Court, St. Francois County; Chas. A. Killian, Judge.

Action by A. J. Frazier against the St. Louis Smelting & Refining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff brought suit in the circuit court of St. Francois county against the defendant, a corporation engaged in the business of smelting and refining in that county, its works located near the town of Flat River, stating in his petition that while he was in the employ of the defendant and engaged in the duties assigned to him by a foreman and vice principal of defendant in removing some boards, timbers, and debris from a portion of the defendant's plant, which was then being torn down, he came in contact with an electric wire which had grounded and over which a strong current of electricity was passing. Plaintiff avers that, the wire being covered with mud, dirt, water, timbers, boards, and other debris, he did not see it, and that, coming in contact with it, he was caught by it "and violently hurled about, struck, and beat against the ground and the timbers thereabout, and that he was thereby greatly bruised, lacerated, and burned about the head, face, limbs, hands, and body; that the skin and flesh from the palms of his hands was greatly burned and lacerated; that plaintiff's whole nervous system was by reason of the severe shock received by him by coming in contact with the said live electric wire or cable and the strong current of electricity running thereon totally and wholly wrecked; * * * that by reason and as a consequence of his said injuries, he was wholly and totally disabled from performing any manual labor for the space of more than one whole month; that his nervous system was wholly and totally wrecked; that he was thereby permanently injured; that by reason and as a consequence of his said injuries plaintiff has lost his time and earnings and has, does, and now will continue permanently to suffer great bodily pain and mental anguish; and that by reason of his said injuries plaintiff has been damaged in the sum of $1,000." Judgment is demanded for this amount, the petition containing the usual and proper averments as to the duty of the defendant, and that the presence of the live grounded wire was due to the carelessness of the defendant in permitting it to remain in such condition as to completely hide the same from the view of defendant's employes, "as was well known to the defendant company at the time, or might have been known to it by the exercise of reasonable care and caution on its part." The answer of defendant, admitting its incorporation and ownership and operation of the lead mine and concentrating plant, as charged, denies all other allegations in the petition. Trial before the court and jury.

Plaintiff gave testimony to the effect that he had been running concentration tables in the mill, and they had cut out one section of the mill, and he was engaged in helping to pull out that section. He had been tearing some of the stuff out of the mill when set to work at the settling tanks outside to carry away lumber and stuff. His orders from the foreman were to carry the rubbish away—the lumber and the stuff that was there, consisting of old lumber and stuff from the slime tanks. It was muddy and wet around there; mud almost shoe-top deep, and water and stuff around. He went to reach down after a plank, and a wire struck him on the leg. It knocked him down, knocking him senseless. One hand was burned in several places. He pointed out to the jury the place where the wire had struck him on the leg and showed his hand. When the foreman directed him to go there to work, he said nothing about the wire, and plaintiff did not know of the existence or location of the wire at the time or previous to his injuries; never saw it. The wire was for lighting the works. The place where he came in contact with the wire was wet—a wet and muddy place. When he came to himself he was up in the "changing room." On cross-examination witness testified that he had been working at this particular work in removing the timber and debris, before he got hold of the wire, about an hour or not quite an hour. This was the first time he had worked at this place. He was familiar with the locality; had worked around these tanks before; knew that the electric wire ran up on top of the tanks. The mud was about shoe-top deep, he repeated, and the wire struck him first just above the shoe top. Asked if, after he felt the wire on his foot or on his leg, he got hold of it with his hand, he answered that he did not remember anything about getting hold of it with his hand. The last he remembered was that it came in contact with his leg, and the next he knew he was in the "changing room." The wire struck him on the leg higher than where the mud and water came to; couldn't say whether the wire was covered by the mud and water or not; did not see it. At the time the wire came in contact with his leg he was in the act of taking up some timber and planks. The plank was on the ground; couldn't say whether it was on top of the wire or not. Asked if he did not know that the wire was not on the ground, he said he did not know whether it was or not. He was in the act of picking the board up when the wire struck him; does not know how he got hold of the wire; does not know how long he was unconscious. Had lost some 15 days' time. Asked the effect of...