Gannon v. Laclede Gaslight Co.

• Decision Date: 16 November 1898
• Citation: 47 S.W. 907,145 Mo. 502
• Parties: GANNON v. LACLEDE GASLIGHT CO.
• Court: Missouri Supreme Court

47 S.W. 907

145 Mo. 502

GANNON v. LACLEDE GASLIGHT CO.

Supreme Court of Missouri.

November 16, 1898.

DIRECTING VERDICT.

Where one party offers testimony to sustain his burden of proof, and the other party offers nothing to contradict it, a direction of a verdict against him is proper.

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

Dissenting opinion. For majority opinion, see 46 S. W. 968.

MARSHALL, J.

The importance of the legal principles involved in this case, and the fact that in some respects it is the first case of its kind that has reached this court, demands that I shall give my reasons for my dissent from the opinion of the majority of the court. To understand the points involved, and to appreciate the force of my dissent, it is necessary to state the case more fully than is done in the opinion of the majority.

The suit is an action for damages for the death of plaintiff's husband. The petition avers that the defendant is a duly-incorporated Missouri corporation, organized for the purpose and engaged in the business of furnishing electric light in the city of St. Louis; that it had wires strung on poles set up on the public streets, conveying and charged with "a certain dangerous and life-destroying fluid and current, known as `electricity'"; that on April 18, 1894, it had such wires, so strung and charged, in a public alley in the rear of house No. 2737 Thomas street, and that "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 charged as aforesaid to destroy human life"; that, while the wires were so down, plaintiff's husband, while walking along the alley, struck his foot against one of the wires, and was instantly killed. The answer is a general denial and a plea of contributory negligence on the part of plaintiff's husband. The reply denied contributory negligence.

The evidence for plaintiff was substantially as follows:

Annie Gannon testified that she is the widow of William Gannon, who was killed on April 18, 1894; that he was 38 years old, employed in the fire department, and was a strong, healthy man.

Ernst Hilgendorf testified that he is the city telegraph operator; that it was his duty to receive alarms of fire, and distribute them to the engine houses and other city departments; that on April 18, 1894, at 10:56 a. m., he received an alarm from box No. 129, in the neighborhood of Leffingwell avenue and Thomas street; that the Laclede Gaslight Company have connection with his office, but he could not say whether they were given the alarm on that occasion.

Peter J. Dolan testified that he was standing on Glasgow avenue, between Sheridan and Cass (three blocks from the fire), when he heard the alarm; that he ran to the fire, saw smoke coming from the shed, went into the alley about 10 feet, to a point 30 or 40 feet from the burning shed, and saw two wires down, and there may have been more; that the fire department got there two or three minutes later, and within two minutes after that he was put out of the alley by a policeman; saw a man (not identified as the deceased) lying in the alley when the policeman was putting him out of the alley; that at that time the flames had not burst out of the top of the shed.

Frank J. Hildebrand testified that he was at work in his barber shop, 2601 Sheridan avenue, cutting witness Sullivan's hair; that when the fire alarm sounded he and Sullivan ran to the fire, which was a block and a half west of his barber shop; that the smoke was dense, and it was "pretty hot"; that he went into the alley, and saw an electric wire lying north and south across the alley; that from two to four minutes later the fire department arrived; that Gannon came into the alley from the south, and was killed very soon after he got there; that he (witness) assisted in pulling the hose into the alley, and got a pair of nippers and gloves to cut the wire; that he was excited on account of seeing Gannon lying on the wires, and he got the nippers after the man was hurt.

John Sullivan, a police officer, whose hair Hildebrand was cutting, testified: That he heard the alarm at half-past 11 o'clock in the morning, or between 11 and 12. That he ran to the fire. Noticed a lot of smoke, and the adjoining shed, across from it, was smoking, too. That he went into the alley, but as it was getting "pretty hot" he went into the yard. That "three or four minutes after that the fire department came, and when the fire was over — pretty near over — I seen Mr. Gannon, a fireman, coming out from the hallway; and I noticed a black wire about two feet from where he stepped out, and I noticed him having a nozzle in his hand. As he came out, I saw him step on this wire. I think it was the right foot. And I noticed him give a groan, and halloo `Oh!' That is all I noticed." Witness further testified that the wire was down when the fire department arrived, and that when he saw the wire the flames had burst out on top of the shed.

James Cain testified that on April 18, 1894, he was pipeman in No. 17 company, which was stationed on Easton avenue, between Leonard and Compton, 5 blocks west of the fire; that his company was among the first to reach the fire; that they started down the alley, when somebody hallooed that the wires were down, and to look out for the horses, just in time for them to stop; that the alarm came in about 11 a. m.; that Gannon belonged to chemical No. 4 company, and got there after he (witness) did; that Gannon came into the alley from Thomas street, through the yard, out of a hallway or door in the alley, with a pipe in his hand; that he saw him fall; was 10 or 12 feet from him; that a man threw a rope around him and pulled him away from the wire as soon as possible; that the fire was nearly under control when Gannon was killed, which was 20 minutes after witness reached the fire, and he reached the fire 2 or 3 minutes after the alarm came in; that the wire which killed Gannon was a large wire, and hung down along the pole; that Hester, assistant chief, tried to cut it with an ax, striking it against the pole; that Gannon's engine was stationed on Washington avenue and Twentieth street, about 10 blocks south and 5 blocks east of the fire; that the defendant's power house or plant was located at the foot of Mound street, which was about twice as far from the fire as Gannon's engine house was from it; that everybody knows that when wires are down they are dangerous; that firemen carry wire cutters; that he could see from the west end of the alley that the wires were down; that his company played on the fire quite a while before Gannon's company arrived; that No. 5 company came in from Sheridan avenue on the north side of the alley, and that Dolan and then Shivley were knocked down by the wires, and a few minutes afterwards Gannon fell; that he did not see any one attempting to cut the wires before Gannon or Dolan fell.

Luke McConn testified that he is a member of hook and ladder company No. 8, which was stationed at the same engine house with Gannon's company; that they went to the fire together; that he, Gannon, and Cronin worked on the Thomas street side of the shed 10 or 12 minutes before going into the alley, and then some one called to bring the chemical line into the alley, and witness and Gannon pulled the pipe into the yard, on the Thomas street side; that he and Gannon stepped into the alley, when he got a shock, jumped to another part of the alley, and shouted, "Look out, Billy!" that Gannon was right behind him, and, as he looked around, Gannon stepped out into the alley, reeled, and fell over; that there was from four to six inches of water in the alley, from the hose and the rain, it being just after a thunderstorm; that the wires came down in a looped shape, and looked pretty big to him when he stepped into the alley; that all those wires were insulated, "if they don't get burned or torn off"; that he did not know how the insulation got off of these wires.

Robert E. Cronin testified that he belonged to the same chemical company with Billy Gannon; that he was at the fire; that they took the hose through the yard to the shed; that he did not see the accident to Gannon; that it was a pretty fierce fire for a shed fire; that it was a two-story shed, with a hallway through it; that all firemen know that electric wires are dangerous if they are down or disarranged.

Charles Swingley testified: That he is chief of the fire department. Knew Gannon, as a fireman, about four years. That he was at the fire. That, on arriving there, found a fire raging. "It was a pretty fierce blaze when they commenced playing on it. Ques. by the Court: When did you first notice those wires that were down there? Ans. On entering the alley. Ques. And then, you say, the fire was raging? Ans. Yes, sir. Ques. It had been for some time? Ans. It appeared to me so. Ques. by Counsel for Defendant: It was raging pretty fierce, with the flames away up in the air? Ans. Yes, sir."

Andrew J. O'Reilly testified that he has been a professional electrician for 12 or 15 years, and is supervisor of city lighting in St. Louis; that he is acquainted with the electric light wires in the city; that he arrived at the fire about 20 minutes after it started, when it had burned out; that he found seven wires down, — one telephone wire belonging to the city fire department, and six copper wires belonging to defendant; that the wires were strung on poles, east and west, in a public alley. Witness produced six wires which were cut on the day of the fire from the wires in the alley, and testified that...