Heiberger v. The Missouri & Kansas Telephone Company
| Decision Date | 05 October 1908 |
| Citation | 113 S.W. 730,133 Mo.App. 452 |
| Parties | KATHERINE HEIBERGER, Respondent, v. THE MISSOURI & KANSAS TELEPHONE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Cooper Circuit Court.--Hon. William H. Martin, Judge.
Judgment affirmed.
W. M Williams and Gleed, Hunt, Palmer & Gleed for appellant.
(1) The jury were instructed that appellant could not be held liable unless it knew or by the exercise of reasonable diligence should have known of the defect in the wires a sufficient length of time before the accident occurred to have repaired the same. This instruction was the law of the case, which the jury could not disregard. Peet v. Railroad (Ia.), 55 N.W. 508; Smith v. Pearson (Minn.), 46 N.W. 849; Railroad v. Hutchinson, 40 Kan. 51. (2) The wire fell only forty-five minutes before the accident occurred. This was not sufficient time to charge appellant with knowledge of the fact and permit it to repair the wire. Railroad v. Kent (Ga.), 13 S.E. 502. Reasonable diligence did not require appellant to repair the wire within thirty minutes. Pavey v. Railroad, 85 Mo.App. 218; Goodrich v. Railroad, 152 Mo. 222; Johnson v Armour, 18 F. 490; Kelley v. Railroad, 105 Mo.App. 365; Railroad v. Low (Ky.), 21 S.W. 648; Brown v. L. & L. Co., 65 Mo.App. 162; Walker v Railroad, 121 Mo. 575; Covey v. Railroad, 86 Mo. 643. (3) The first instruction given by the court at the request of respondent was erroneous in that it permitted the jury to allow damages for nervous shock and mental pain and anguish not caused by or connected with physical injuries. Railroad Commrs. v. Coultas, 13 App. Cas. 222; Railroad v. McGinnis, 46 Kan. 109; Brown v. Craven (Ill.), 51 N.E. 659; Railroad v. Trott, 25 S.W. 420; City v. McLean, 24 N.E. 528; Keys v. Railroad, 30 N.W. 889; Nelson v. Crawford, 81 N.W. 335; Railroad v. Anderson, 53 S.W. 673; Randolph v. Railroad, 18 Mo.App. 617; Kennon v. Gilmer, 131 U.S. 26. (4) The court, over appellant's objections, admitted evidence of the number of other persons in the boat and the number of persons drowned. This was error. The court admitted evidence of statements made by respondent regarding her condition long after the accident occurred, and not made to her physician. This was error, because the evidence was hearsay. Railroad v. Walker (Ga.), 21 S.E. 48; Railroad v. Kennelly (Ill.), 48 N.E. 996; Kennedy v. Railroad (N. Y.), 29 N.E. 141.
John & J. W. Cosgrove for respondent.
(1) The Missouri river is a navigable stream. Benson v. Morrow, 61 Mo. 345; R. S. U. S. 1878, sec. 5251. (2) A navigable stream is open to all in all its parts and no one has any right to obstruct the free and lawful use thereof. Benson v. Morrow, supra; 21 Am. and Eng. Ency. Law (2 Ed.), p. 440; Davis v. Winslow, 51 Maine 264, 80 Am. Dec. 582, note; Boom Co. v. Dixon, 77 Miss. 587, 78 Am. St. Rep. 537. (3) An obstruction is such an impediment as renders navigation less secure, convenient and expeditious. State v. Island Club, 100 N. Car. 477; 21 Am. and Eng. Ency. Law (2 Ed.), p. 443. (4) Wire cables and ropes are obstructions. Gas Light Co. v. Schooner "Game Cock," 23 Wis. 144. (5) One who obstructs a navigable stream is liable to another injured thereby. Webb's Pollock on Torts, 489; Omslaer v. Phila. Co., 31 F. 354; Railroad v. Brooks, 39 Ark. 403, 43 Am. R., 277; Babcock v. Herbert, 2 Ala. 392, 37 Am. Dec. 695. (6) If appellant had a right to span said river with its wires, under section 5263, R. S. U. S. 1878, it could only do so on the express condition that it so maintain them "as not to obstruct" navigation. This obligation expressly imposed appellant failed to perform and respondent was injured in direct consequence thereof. Appellant's conduct was negligent per se. Gratiot v. Railroad, 116 Mo. 450; Story v. Transit Co., 108 Mo.App. 424; Loth v. Theatre Co., 197 Mo. 355; Packet Co. v. Railroad; I (McCreary) U.S.C. C. 281. (7) The presence of appellant's wire in or near the water, the sinking of the launch by contact therewith, and respondent's injury directly resulting therefrom, make a prima-facie case for plaintiff and defendant failed to overcome or explain away this prima-facie case. Cannon v. Gas Light Co., 145 Mo. 502; Mowry v. Norman, 204 Mo. 191; Redmon v. Railroad, 185 Mo. 14; Young v. Oil Co., 185 Mo. 634; Judson v. Powder Co., 107 Cal. 549; 48 Am. St. Rep. 146. (8) The principle of res ipsa loquitur applies. Hill v. Scott, 38 Mo.App. 374; Haynes v. Gas Co., 114 N. Car. 203, 41 Am. St. 786; 2 Thompson on Negligence, p. 1222.
Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. Verdict and judgment were for plaintiff in the sum of twenty-five hundred dollars, and defendant appealed.
Plaintiff was injured in the evening of August 10, 1905, on the Missouri river near Boonville, where she lived. She had spent the day at Chouteau Springs and, together with nine other persons, attempted to return home in a gasoline launch of somewhat crude construction. The way pursued by the boat was downstream and along the main channel where the current runs at a speed of six miles per hour. While approaching the bridge which spans the river at Boonville, the boat collided with an obstruction in the river and capsized. The occupants were thrown into the water and several were drowned. After sinking twice, plaintiff came in contact with a log extending from a pile of driftwood which had formed at one of the bridge piers. Though almost unconscious, she instinctively clutched the log and held on with her head out of the water until rescued by a watchman at the bridge. The obstruction which wrought the havoc consisted of a wire belonging to a line of wires maintained by defendant, a telephone company. The line crossed the river at Boonville at an elevation of about fifty feet, but in some way this wire had sagged in the middle of the span to a few inches below the level of the water at a point where the boat attempted to pass. Until it became taut, the wire yielded to the pressure of the boat against it, but it proved to be strong enough to stop further advance, and to cause the boat to careen and turn over.
It is alleged in the petition "that defendant, by its servants, agents and employees carelessly and negligently permitted one of its wires aforesaid which spanned the river to drop, sag, or hang so close to or near the surface of the water for several hours, and negligently and carelessly failed and refused to remove the same after being notified thereof, and thereby rendered the navigation of said river dangerous and hazardous; . . . that such injuries and nervous shock to her system were caused and received by her in consequence of defendant's negligence and want of care through its agents, servants and employees in permitting said wire to hang and remain so near the surface of the water, and in failing and refusing to remove same after being notified thereof several hours before the accident."
The answer is a general denial. Defendant argues that the jury should have been instructed to return a verdict in its favor for the reasons, first, that defendant "had no notice and was not chargeable with notice of the condition of the wire before the accident occurred, " and, second, that defendant "certainly did not have notice a sufficient length of time before the accident occurred to have enabled it to repair the wire or remove the obstruction."
Defendant's foreman of construction at Boonville, introduced as a witness by defendant, testified that at about eight o'clock in the morning of the day of the injury, he received notice from the bridgman that defendant's wires crossing the river--five in all--were too low to permit the snagboat to pass under. An inspection disclosed that the wires had too much slack, and he set his men to work tightening them. He left the work at 4:30 o'clock in the afternoon and the men left an hour later. Witness says all the wires were pulled up when he left, but does not state what the men were doing afterwards. No other evidence was introduced by defendant.
The watchman on the bridge, introduced as a witness by plaintiff, saw the wreck of the boat. He went on duty at six o'clock that evening, and fifteen minutes later noticed that one of the telephone wires swung down into the water. He immediately went to a railroad station, about three blocks away and asked the operator to telephone the information to the central office of defendant at Boonville. The operator testified: The night operator of the defendant's switchboard was on duty at that time. She stated on the stand that she received a message at about seven o'clock in the evening "that the wires were low," but she did nothing "because we had received a notification that morning before, and I supposed it was a second notification." Further, she testified that the manager of the office was a Miss Kesterson who then was off duty and the witness as night operator had no duties except those pertaining to the operation of the switchboard.
The boat came down the river sometime after the watchman returned from the railroad station. He fixes the time of the accident at about seven o'clock; other witnesses fix it at "about dusk," which at that season would be about 7:30 o'clock, as the sun does not set until 7:08. In any event, the evidence most favorable to plaintiff does not show that more than an hour elapsed between the time defendant's office was...
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