Grzeskoviak v. Union Electric Light & Power Company
| Decision Date | 08 June 1923 |
| Parties | JOHN GRZESKOVIAK, A Minor, by JOSEPH GRZESKOVIAK, His Next Friend, Appellant, v. UNION ELECTRIC LIGHT & POWER COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Vital W. Garesche Judge.
Affirmed.
William L. Bohnenkamp and Watts, Gentry & Lee for appellant.
(1) The case made by the plaintiff's evidence clearly entitled him to have it submitted to the jury. (a) The allegation of negligent failure to maintain proper insulation was conclusively proven by proof of escape of a dangerous current of electricity from defendant's wires. Geismann v Mo. Elec. Co., 173 Mo. 654; Von Treba v. Gas Light Co., 209 Mo. 648; Sudmeyer v. United Rys. Co., 227 S.W. 64; Snyder v. Wagner Elec. Mfg. Co., 223 S.W. 916. (b) A prima-facie case of negligence is made by such a showing without proof of actual or constructive knowledge on the part of the defendant of the dangerous condition prior to the escape of the electricity. Gannon v. Laclede Gas Light Co., 145 Mo. 502; Trout v. Gas Light Co., 151 Mo.App. 207, 160 Mo.App. 604. (c) All the proof showed that there was no other carrier of electricity whose wires were so situated that the current which injured plaintiff could have come from them. Proof as to where the current came from may be circumstantial as well as direct just as any other fact may be shown by circumstantial evidence. Book v. Mo. Public Utilities Co., 242 S.W. 433; Burns v. Railroad, 176 Mo.App. 331. (d) Ownership of defendant's wires may be established, as it was in this case, by showing that persons were supplied by defendant with electric light from the wires from which the escaping current came. Davenport v. Elec. Co., 242 Mo. 111. (e) While defendant was not obliged to anticipate that the exact injury which occurred would result from its negligence, it was bound to take necessary precautions to avoid the escape of its current, where it could be reasonably foreseen that somebody might be injured in some manner if its electricity escaped. Hudson v. Union Elec. L. & P. Co., 234 S.W. 869; Hickman v. Union Elec. L. & P. Co., 226 S.W. 570; Johnson v. K. C. Elec. Light Co., 232 S.W. 1098; Washburn v. Laclede Gas Light Co., 214 S.W. 414, 223 S.W. 725; Williams v. Gas & Elec. Co., 274 Mo. 1; Wilhite v. Huntsville, 167 Mo.App. 155; Davis v Hospital, 196 S.W. 108; Thompson v. City of Slater, 193 S.W. 971. (f) The defendant was obliged to take notice of the fact that in this climate violent storms frequently occur and that wires are broken and blown down by such storms, and that, therefore, the Kinloch telephone wire might be blown down. Wilhite v. City of Huntsville, 167 Mo.App. 155. (g) It was not necessary to show that the Kinloch telephone wire got its current by coming into direct contact with defendant's electric light wire. So long as the current could be traced back to defendant's wire, it mattered not whether the current passed through air, water, wood, steel, wire, or other substance, in being conducted into the Kinloch wire. Vessels v. Light & Power Co., 219 S.W. 80; Campbell v. United Rys. Co., 243 Mo. 141; Downs v. M. & K. Tel. Co., 161 Mo.App. 274; Hollis v. K. C. L. & P. Co., 224 S.W. 158; Kelley v. Higginsville, 185 Mo App. 85. (h) The mere fact that the Kinloch Telephone Company might also be charged with negligence and jointly held with defendant, if joined as a co-defendant, in no way excuses the defendant or prevents the plaintiff from being entitled to a judgment against defendant. Harrison v. K. C. Elec. Co., 195 Mo. 606; Hickman v. Union Elec. L. & P. Co., 226 S.W. 570; Thompson v. City of Slater, 193 S.W. 975. (2) Instruction number 1, given by the court at the request of the plaintiff (the giving of which was assigned by the court as one of its reasons for granting a new trial), was a perfectly correct instruction. This instruction authorized the jury to find for plaintiff if they found the facts therein set forth, unless they further found from the evidence that the defendant could not have prevented the escape of such electric current by the exercise of the highest degree of care. In other words, the instruction invoked the doctrine of res ipsa loquitur. This doctrine is applicable in a case where negligent failure to properly insulate is charged and there is proof of escape of electricity from defendant's wire. Geismann v. Mo. Elec. Co., 173 Mo. 654; Von Treba v. Gas Light Co., 209 Mo. 648; Sudmeyer v. United Rys. Co., 228 S.W. 64. The plaintiff was not deprived of the benefit of the rule requiring the defendant to exercise the highest degree of care by the allegation in plaintiff's petition to the effect that the physical surroundings -- that is, the location of its wire and the location of the Kinloch telephone wire, and the danger of injury to the public if a dangerous current of electricity should be permitted to escape from defendant's wire -- were known to defendant or could have been known to it by the exercise of ordinary care. The use of the term "ordinary care" in the petition refers solely to knowledge on the part of the defendant of the physical surroundings. Plaintiff's right of recovery was based on negligent failure to insulate and not on failure to know the physical surroundings. Therefore, the use of the term "ordinary care" had no reference to the negligent act, to-wit: failure to insulate, on which plaintiff's right of recovery is based. The duty with reference to insulation was fixed by law requiring it to exercise the highest degree of care. Therefore, there was no conflict between the instruction above set forth and the petition, and the giving of the instruction afforded no ground for granting defendant a new trial. (3) The refusal of defendant's refused instruction numbered 5 did not constitute error, and, therefore, the granting of a new trial on that ground by the trial court was erroneous. The instruction was properly refused because erroneous in the following particulars: (a) It excused the defendant, unless it could have known, by the exercise of reasonable care, of the contact of the telephone wire with defendant's wire. "Reasonable care" means "ordinary care." 29 Cyc. 427, note 74; Spaulding v. Metropolitan Street Ry., 129 Mo.App. 613; Helfenstein v. Medart, 136 Mo. 595, 608. A transmitter of electricity does not discharge its duty by merely exercising ordinary care or reasonable care, which is the same thing. Its duty is to exercise the highest degree of care. Campbell v. United Rys., 243 Mo. 152; Geismann v. Mo. Elec. Co., 173 Mo. 654; Von Treba v. Gas Light Co., 209 Mo. 659; Warren v. M. & K. Tel. Co., 196 Mo.App. 549; Curtis' Law of Electricity, secs. 594-597; Joyce on Electric Law, secs. 445-A, 445-F. (b) The instruction was further erroneous in submitting to the jury the question whether there was a direct contact between the Kinloch telephone wire and the defendant's wire -- meaning an actual physical contact between the two wires. The instruction was properly refused, because there was no evidence of any such contact, and it would, therefore, have been error to submit to the jury the question as to whether or not there was such a contact. There was no such issue in the case. To inject such an issue would have been confusing and misleading to the jury. Where an instruction is wrong in one particular it is proper to refuse it, even if it is correct in all other respects. It is not incumbent on the trial court to correct such instruction. Davis v. Springfield Hospital, 196 S.W. 108; State to use v. Donnelly, 9 Mo.App. 530.
Jourdan, Rassieur & Pierce for respondent.
(1) In reviewing an order granting a new trial, the Supreme Court will consider not only the grounds upon which the order was made, but any other ground of the motion for new trial that will sustain the ruling. Benjamin v. Railroad, 245 Mo. 598, 609. (2) The petition charges specific negligence in that defendant failed to insulate its wires with proper insulating material. Having thus pleaded specific negligence, plaintiff must recover on the specific negligence alleged or not at all, and cannot recover on res ipsa loquitur. Pointer v. Mountain Ry. Construction Co., 269 Mo. 104. (3) The cases cited by plaintiff go no further than to hold that when it is proven that defendant's electricity escaped, then the presumption is that it escaped through defective insulation, but before the presumption arises it must first be shown by substantial evidence that defendant's electricity escaped. Geisman v. Mo. Electric Co., 173 Mo. 654; Von Treba v. Gas Light Co., 209 Mo. 648; Sudmeyer v. United Rys. Co., 228 S.W. 64. (4) Where there is no direct contact with defendant's wire, but plaintiff seeks to prove that defendant's electricity escaped and was communicated to his person through other agencies, the burden is upon plaintiff to prove by substantial evidence a channel or conduit through which electricity according to its laws could pass. Brown v. Consolidated Light, Power & Ice Co., 137 Mo.App. 729; Campbell v. United Rys. Co., 243 Mo. 141, 155; Vessels v. Light & Power Co., 219 S.W. 80; Downs v. Telephone Co., 161 Mo.App. 274. (5) While the escape of electricity may be shown by circumstantial evidence, there must be direct evidence of facts or circumstances which naturally support the inference. The jury cannot guess that the current came from defendant's wire merely because the evidence shows no other source from which it could come. Book v. Mo. Public Utilities Co., 242 S.W. 434; Brown v. Consolidated Light, Power & Ice Co., 137 Mo.App. 729; McGee v. Railroad, 214 Mo. 530, 543. (6) The rules of evidence do not permit a presumption to be rested upon a presumption. To so pyramid inferences is to rest a shadow upon a shade. Hamilton v. Railroad, 250...
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