Hill v. Union Electric Light & Power Co.

• Decision Date: 04 May 1914
• Docket Number: No. 15887.,15887.
• Citation: 260 Mo. 43,169 S.W. 345
• Court: Missouri Supreme Court
• Parties: HILL v. UNION ELECTRIC LIGHT & POWER CO.

169 S.W. 345

260 Mo. 43

HILL v. UNION ELECTRIC LIGHT & POWER CO.

No. 15887.

Supreme Court of Missouri.

May 4, 1914.

On Motion for Rehearing, July 2, 1914.

1. ELECTRICITY (§ 15)—INJURIES—LICENSEES AND TRESPASSERS.

A city owned a line of poles in connection with its fire department and telephone system, upon which an electric light company and certain telephone companies were permitted to string wires. The electric light company was granted permission by the city to remove certain old poles and replace them with new poles, reserving the same space for other companies which they were then occupying. Held, that the right to use the poles carried with it the right to go upon them in making repairs and removing obstructions to the wires, and a telephone employé had the same right with respect to a new pole erected by the light company to which the wires had not yet been attached, and, when injured through contact of an electric light wire with a step or handhold, while disentangling telephone wires, he was rightfully on the pole.

2. ELECTRICITY (§ 19)—ACTIONS FOR INJURIES — EVIDENCE — CONFORMITY TO PLEADINGS.

In a telephone trouble man's action against an electric light company, whose wires as well as the telephone wires were strung upon a line of poles owned by a city, for injuries caused by contact between an electric light wire and a step or handhold on a new pole to which the wires had not yet been attached, in which the petition alleged that the insulation on such wire had become decayed, worn, and disintegrated, a failure to prove that the insufficiency of the insulation was due to decay, wear, or disintegration was immaterial, where the evidence for both parties showed that for some reason it was wholly worthless as a protection to the employés of the various companies.

3. ELECTRICITY (§ 14)—LIABILITY FOR INJURIES—DEGREE OF CARE REQUIRED.

An electric light company, if not an insurer against injury to others, is bound to exercise the highest degree of care.

4. ELECTRICITY (§ 16)—LIABILITY FOR INJURIES—ACTS CONSTITUTING NEGLIGENCE.

Where an electric light company using a line of poles owned by a city, also used by a telephone company, with the permission of the city replaced an old pole with a new one, but did not put the cross-arms in place or attach the wires, as a result whereof a defectively insulated wire came in contact with a step or handhold, it was guilty of negligence, rendering it liable for an injury to a telephone employé, caused by contact with such handhold.

5. ELECTRICITY (§ 19)—ACTIONS FOR INJURIES —QUESTIONS FOR JURY.

In a telephone trouble man's action against an electric light company, whose wires were strung upon the same line of poles as the telephone wires, for injuries caused by contact of a sagging electric light wire with a step or handhold on a new pole to which the wires had not been attached, evidence held insufficient to show, as a matter of law, that he was negligent in failing to wear rubber gloves while on the pole or in failing to observe the contact between the wire and the handhold.

6. ELECTRICITY (§ 18)—LIABILITY FOR INJURIES — CONTRIBUTORY NEGLIGENCE — DEGREE OF CARE REQUIRED.

Though an electric light company was bound to exercise a very high degree of care to make its wires, etc., reasonably safe to those whose duties might bring them into contact therewith, an employé of a telephone company, whose wires were strung upon the same poles as the electric light wires, was only bound to exercise ordinary care to avoid injury from the electric light wires.

7. DAMAGES (§ 216) — PERSONAL INJURIES —INSTRUCTIONS—ELEMENTS OF DAMAGES— SEPARATE ASSESSMENT.

In an action for personal injuries, in which the petition alleged that plaintiff's earning capacity prior to the injury was $100 a month, an instruction to assess such damages as would be a fair compensation to plaintiff for the pain suffered and the permanent injury directly caused by such injuries, and for such loss of earnings as he had sustained and such loss or impairment of earning power as he would in all reasonable probability sustain, not exceeding the damages demanded in the petition, was not erroneous because of its failure to limit the jury, in awarding damages for loss of earning capacity, to the amount alleged in the petition, since a pleader is not required to ask a separate finding on each element of damages, nor is a separate assessment necessary.

8. DAMAGES (§ 132) — EXCESSIVENESS — PERSONAL INJURIES.

Plaintiff, a young man between 20 and 30 years of age and having a life expectancy of 35 1/3 years, earning about $100 a month as trouble man for a telephone company, received an electric shock from which he sustained severe personal injuries, intense physical pain, and mental anguish. Both hands were badly burned, necessitating the amputation of nearly all the fingers and thumbs, and leaving only withered, gnarled, and useless stumps. He also received other severe burns, and was permanently disabled from performing the duties of his former calling, and since the injury had earned only $35 to $40 a month. Held, that a verdict for $22,500, reduced by the trial court to $18,000, was not excessive.

On Motion for a Rehearing.

9. ELECTRICITY (§ 16)—LIABILITY FOR INJURIES FROM NUISANCE.

Where an electric light company, whose wires were strung upon a line of poles owned by a city and also used by a telephone company, was given permission by the city to replace certain old poles with new ones, if, as claimed, a new pole erected by it, and to which the wires had not been attached, was not placed in the place of an old one authorized to be removed, it was a public nuisance, and, irrespective of negligence, the electric light company was liable for injuries sustained by a telephone employé while on such pole for the purpose of disentangling telephone wires, due to a contact between a sagging light wire and a step or handhold.

10. ELECTRICITY (§ 15)—LIABILITY FOR INJURIES.

Where an electric light company, using a line of poles owned by a city, was granted permission to replace old poles with new ones, if, as claimed, a new pole erected by it was not in lieu of an old one, this did not affect the rights of the employés of a telephone company, also using the city's poles, to go upon such new pole, where it was intended to serve the purposes of the old one.

Graves, Bond, and Faris, JJ., dissenting.

In Banc.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Thaddeus G. Hill against the Union Electric Light & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff brought this suit in the circuit court of the city of St. Louis against the defendant to recover the sum of $35,000 damages for personal injuries sustained by him through the alleged negligence of the company. A trial was had before the court and a jury which resulted in a verdict for the plaintiff for $22,500. In proper time a motion for a new trial was filed, and among other reasons assigned therefor was that the verdict was excessive. After due consideration the court announced that if the plaintiff would remit $4,500 of the verdict the motion would be sustained. In response to that announcement counsel for plaintiff entered a remittitur of $4,500, and thereupon the court overruled the motion for a new trial, and entered judgment for the plaintiff for $18,000. In proper time and in due form defendant appealed the cause to this court.

There being no question raised as to the sufficiency of the pleadings, they will be put aside with the remark that they were sufficient to present the questions involved in this appeal.

The plaintiff's evidence tended to show: That the city of St. Louis owned a line of poles erected along the north side of Loughborough avenue extending westward from Colorado street. The primary purpose of these poles was to support wires serving the fire department and telephone system of the city; but prior to the date of the alleged injury the city properly authorized the Bell Telephone Company, the defendant, the Union Electric Light & Power Company, and the Kinloch Telephone Company to construct and maintain cross-arms on said poles and to string and maintain their respective wires thereon. The wires of the city were the top ones, then came those of the Bell Telephone Company, then those of the Union, and lastly those of the Kinloch. Those of the former were strung on the south side, and those of the latter were on the north side thereof. The record does not definitely show how many wires all told there were strung upon these poles, but they are referred to in various places as a large number, and in one place counsel for defendants state facts which show that there were at least 24 of them and also a large telephone cable. The Union Company's wires were used for lighting purposes, and carried about 2,300 volts, and those of the Bell and Kinloch companies were for telephone purposes, and each carried about 50 volts. Those of the city, as previously stated, were strung above and are of no consequence in this case. That on and for years prior to the date of the injury complained of, said poles and wires had been in constant use by the respective parties for the purposes mentioned. All of the poles had the ordinary iron step or handholds (iron spikes) driven into them from opposite sides, some 2½ feet apart, extending upward. That these steps or handholds were to enable persons to ascend and descend the poles whenever the necessity of the business required. The agents, servants, and employés of the city and those of the three companies named had equal rights to use the poles for the purposes mentioned. That on or about February 15, 1907, the defendant applied to the city for permission to remove old and unsuitable poles along the line mentioned, and to substitute new ones in lieu thereof. In compliance to that application the city issued the following permits (formal...