Haworth v. Mineral Belt Telephone Company
| Decision Date | 07 March 1904 |
| Citation | 79 S.W. 727,105 Mo.App. 161 |
| Parties | JERRY HAWORTH, Respondent, v. MINERAL BELT TELEPHONE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. J. D. Perkins, Judge.
Judgment affirmed.
Walden & Andrews and J. W. Halliburton for appellant.
(1) There was no evidence to warrant the submission of the case to the jury and the court should have given the peremptory instructions asked by the defendant. Electric Illuminating Co. v. Patt, Admx., 84 Va. 747. (2) The defect, if any, was as clear and obvious to plaintiff as to defendant, and no negligence can be predicated thereon. Berning v. Medart, 56 Mo.App. 443; Fugler v Bothe, 117 Mo. 475; Albridge, Admr., v. Furnace Co., 78 Mo. 559; Watson v. Coal Co. 52 Mo.App 366; Wray v. South W. E. L. & P. Co., 68 Mo.App 380; Halliburton v. Railroad, 58 Mo.App. 27; Warner v. Railroad, 62 Mo.App. 184; Junior v. Elec. Light Co., 127 Mo. 79. (3) The burden of proof is on plaintiff to show that his injuries were caused by the alleged absence of insulation on the live wire at the lightning connecter. A careful scrutiny of the record discloses no substantial evidence to prove this fact. The evidence must be of a character to remove the question from the domain of mere conjecture. Junior v. Electric Light Co., 127 Mo. 79; Bren v. Cooperage Co., 50 Mo.App. 202; Glick v. Railroad, 57 Mo.App. 97; Hyde v. Railroad, 110 Mo. 272; Peck v. Railroad, 31 Mo.App. 123; Hite v. Railroad, 130 Mo.App. 132. (4) Where one knowingly places himself or his property in danger, the presumption is, that he ipso facto assumes all the risk to be reasonably apprehended from such course of conduct. Carroll v. Tel. Co., 107 Mo. 653; O'Donnell v. Patton, 117 Mo. 13; Thompson v. Railroad, 86 Mo.App. 148. (5) A servant assumes all risks from the defective appliances of which he knew or which were so obvious as not to escape the observation of an ordinarily prudent person. Moore v. Wire Mill Co., 55 Mo.App. 491; Stalzer v. Packing Co., 84 Mo.App. 565; Sullivan v. Mfg. Co., 113 Mass. 396; Thompson v. Railroad, 86 Mo.App. 141; Klein v. Shoe Co., 91 Mo.App. 102; Kaminski v. Iron Works, 167 Mo. 462; Shearman & Redfield on Negligence, sec. 219, (5 Ed.); Telegraph Co. v. McMullen, 58 N. J. L. 155, 33 A. 384, 6 Am. Ed. 338; Keasby on Electric Wires, 257, (2 Ed.); Junior v. Elec. L. & P. Co., 127 Mo. 79; Keasby on Electric Wires (2 Ed.), sec. 262; Giraudi v. Electric Improv. Co., 107 Cal. 120, 40 P. 108, 5 Am. Elec. 318; Piedmont Elec. Illum. Co. v. Patterson, Admx., 85 Va. 747, 6 S.E. 4, 2 Am. El. 350.
Thomas & Hackney for respondent.
(1) The plaintiff's evidence made out a prima facie case. It was the province of the jury to determine from the facts in evidence whether defendant's act of negligence was the proximate cause of plaintiff's injury. Chambers v. Chester, 172 Mo. 461; Twohey v. Fruin, 96 Mo. 104; Dunn v. Railroad, 21 Mo.App. 198; 1 Shearman & Redf. on Neg. (5 Ed.), secs. 54-55, pp. 64-67; 1 Thompson Com. on Neg., sec. 161; Buswell on Pers. Inj., sec. 98, p. 156. (2) It was conceded on the trial that the live wires on the pole, which plaintiff was required to climb, were dangerous if uninsulated; that they carried such a high voltage as to endanger the life of a person working on the pole if he came in contact with them. (3) It was shown by the plaintiff's testimony that the foreman ordered him to ascend the pole and do this work and did not notify him of the presence of the live wires nor of their uninsulated condition; and the finding of the jury in plaintiff's favor on that issue, eliminates that question from this appeal. (4) The plaintiff did not assume the risk of injury from contact with uninsulated live wires. The mere direction of defendant's foreman to ascend the pole and do the work assigned to him was an assurance that the place where plaintiff was required to work was reasonably safe. Bane v. Irwin, 172 Mo. 316. (5) While plaintiff might be held to have assumed the risk of injury by puncturing the insulation on the live wire had he known of its presence, he did not assume the risk of the increased danger caused by defendant's negligence in removing and failing to replace the insulation on the live wires at the point where he was injured. Chambers v. Chester, 172 Mo. 461.
Plaintiff was an employee of the defendant telephone company. He was injured while engaged in assisting in stringing some additional wires on the poles of the company. He brought this action for damages and obtained judgment in the trial court.
The objection to the judgment refers principally to the right of plaintiff to recover under the evidence. Since the verdict was for the plaintiff we will state in substance what the evidence in his behalf tended to prove. He and some others, were in defendant's employ under the direction of one Watson. They were stringing wires connecting some strawberry beds in the suburbs of the city with the main exchange office, and in endeavoring to get there from a pole down into the office, it became necessary for some one to climb the pole to the height of about twenty feet from the ground and manipulate the wire from that position. Plaintiff knew there were "live wires" on the pole, but Watson directed him to go up and do the work, at the same time assuring him that the wires were insulated and were safe. Plaintiff was equipped with climbers, that is, with steel straps fastened around his legs and sharp spurs at the side of his feet. He climbed the pole and in endeavoring to adjust the wire, he, in some way, came in contact with a live or charged wire, which instantly knocked him from his hold and footing on the pole to the ground, whereby he was greatly injured. It does not appear definitely, however, how he came to come in contact with the wire. Defendant's theory is that he cut into one of the charged wires with the steel spur on his foot. But the theory in his behalf is, and there was evidence tending to support it, that prior to this time the defendant had had the insulation of two of these wires...
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