Gannon v. Laclede Gaslight Co.

• Decision Date: 07 June 1898
• Citation: 46 S.W. 968,145 Mo. 502
• Court: Missouri Supreme Court
• Parties: GANNON v. LACLEDE GASLIGHT CO.<SMALL><SUP>1</SUP></SMALL>

46 S.W. 968

145 Mo. 502

GANNON v. LACLEDE GASLIGHT CO.¹

Supreme Court of Missouri.

June 7, 1898.

ELECTRIC LIGHT COMPANIES — NEGLIGENCE — PLEADING — EVIDENCE — PROVINCE OF COURT AND JURY.

1. Where a city fireman was killed by stepping on a charged electric wire, which was broken in two, and lying on the ground in a public alley, the electric light company was prima facie negligent, want of notice on its part of the grounding of the wire being an affirmative defense.

2. Where plaintiff, in an action for negligence, makes a prima facie case, he is not bound to establish further allegations of the petition inserted to negative an anticipated defense.

3. Where one party offers testimony to sustain his burden of proof, the other party, although offering nothing to contradict it, is entitled to have the jury pass upon the whole case, the direction of a verdict against him being improper.

Sherwood, Brace, and Marshall, JJ., dissenting.

In banc. Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Action by Annie Gannon against the Laclede Gaslight Company. From a judgment in favor of plaintiff, defendant appealed. Affirmed.

Henry Hitchcock, for appellant. T. J. Rowe, for respondent.

ROBINSON, J.

This action was begun by the respondent, Annie Gannon, against appellant, to recover $5,000 for the death of her husband, William Gannon, alleged to have been caused by the fault of the defendant company as set out in her petition, containing the following substantial averments: "That plaintiff is the widow of William Gannon, deceased. That the Laclede Gaslight Company, defendant, is a corporation under the laws of Missouri, engaged in the business of furnishing and selling electric light throughout the city of St. Louis, Mo. That in conducting said business the defendant had erected and strung upon poles along the streets and alleys of said city wires charged with a certain dangerous and life-destroying fluid and current known as electricity; and that on the 18th day of April, 1894, on a certain public highway of said city, to wit, in an alley running east and west through the block bounded on the north by Sheridan avenue, on the south by Thomas street, on the east by Elliot, and on the west by Leffingwell avenue, through and along which alley it then and there had erected and maintained as aforesaid its said wires, so as aforesaid charged with electricity, in the conduct of its said business, and at a point in said alley in the rear of residence No. 2737 Thomas street, the defendant negligently and carelessly permitted its said wires, to the number of six or seven, then and there charged as aforesaid, to become broken in two, and to fall to the pavement of said alley, and to remain broken in two and down for a long time then and there, while full charged with electricity as aforesaid, when it knew, or ought by the exercise of any care and caution to have known, that the said wires were so as aforesaid broken and down, and liable, if touched by any human being while so broken down and charged as aforesaid, to destroy human life. And plaintiff states that, while the said wires were then and there in said alley broken in two and down and charged as aforesaid, her said husband, while walking along in the said alley at said point, struck with his foot against one of said defendant's said wires, and was thereby instantly killed, by the fault and recklessness and carelessness of the said defendant then and there in the premises as aforesaid, to her damage in the sum of $5,000, for which sum plaintiff prays judgment." Defendant's answer was a general denial, coupled with a plea of contributory negligence on part of plaintiff, to which plaintiff replied, denying the allegation of new matter contained in defendant's answer.

At the close of plaintiff's testimony in chief the defendant asked the following instructions: "The court instructs the jury that, on the pleading and evidence, the plaintiff cannot recover, and the verdict will be for defendant;" which being refused, the defendant offered testimony on its part to the effect that the wires belonging to defendant that killed plaintiff were melted or burned in two by reason of a fire originating in a stable that was fronting on the alley in which its wires were strung; that said fire was not caused by the wires, and that its origin was unknown; that the defendant was not notified of the existence of the fire, or that its wires were broken down in the alley where the fire occurred, until after plaintiff's husband had been killed, and that said wires were down upon the ground in the alley only a short while before plaintiff's husband was killed; that there was no appliance at defendant's power house at the time to indicate when one of its wires was grounded; and that defendant had at the time of the fire a contract with the city for lighting certain streets and alleys with electricity, and also certain public and private institutions, which required it to keep in operation during the day a constant current of electricity passing over its wires. At the close of all the testimony in the case, defendant again prayed the court to instruct the jury "that, upon the pleading and all the evidence, the plaintiff cannot recover"; which being refused, the jury, under proper instructions submitted by the court, found a verdict for plaintiff for $3,000, on which in due time judgment was entered, and to reverse which, on account of error alleged in refusing defendant's two peremptory instructions, this case is here. No objection is made now to the proposition of law announced in the instructions given by the court, if the refusal of defendant's instruction at the close of the case is held good. The sole controversy has grown out of the application of the law thereto, under the peculiar averments of the petition.

The plaintiff, to sustain her case, offered testimony tending to show that William Gannon, in respect to whose death this action was begun, was the husband of plaintiff; that he came to his death by stepping upon an electric wire belonging to the defendant company that was broken in two and lying upon the ground in one of the public alleys of the city of St. Louis, charged with an electric current of more than double the voltage necessary to kill a human being; that plaintiff's husband was at the time in the discharge of his duty as one of the city firemen, trying to extinguish a fire that had originated in a stable fronting on the alley where he was killed, and along which defendant by permission of the city, had strung its electric wires, for the purpose of enabling it to furnish light to the city and for various private consumers along the course of the line; that two of a series of seven of defendant's wires strung overhead in said alley were down when plaintiff's husband arrived at the fire, and two other of the firemen engaged with him were also stunned and knocked to the ground at and near the same time and place.

The defendant's contention here is that no testimony was offered which tended to prove that the death of plaintiff's husband was caused by negligence on part of defendant, after the manner as alleged in her petition; that no substantial evidence, nor any evidence whatever, was offered by plaintiff tending to show, either that the wires in question became broken in two or fell to the ground in consequence of any negligence on part of defendant or its agent; or that said defendant knew, or ought by the exercise of ordinary care or caution to have known, that said wires were so broken and down at or before the time when plaintiff's husband was killed; or that defendant or its agents, with knowledge or notice, actual or constructive, that said wires were broken and down in the alley where plaintiff's husband was killed, did negligently permit said wires to remain so broken and down for a long time after notice thereof. And in the second place it is contended by defendant that, if it be conceded that a prima facie case was made by plaintiff in the first instance, it was entirely overcome by the positive and uncontradicted testimony of defendant's witnesses, and for that reason a finding should have been directed for defendant by the court at the close of the case.

While there is no doubt of the general proposition, so vigorously and repeatedly asserted by the counsel for appellant in his elaborate and able brief filed herein, "that a party cannot declare upon one cause of action, upon one negligent act, and recover upon an entirely different act of negligence, without a disregard of all rules of pleading and practice," it must be borne in mind that it has likewise been a rule of long practice, and frequently asserted in this court, based upon the plainest principles of propriety and fairness, that a party will not be driven out of court merely from the fact that he or she has alleged more than has been proven, when the unproven allegations are shown to be unnecessary averments to authorize a recovery; nor will plaintiff's action be denied merely because the testimony offered does not support certain averments in his or her petition when it does support other averments which...