Hoover v. Kansas City Elevated Railway Company
| Decision Date | 06 November 1911 |
| Parties | MARY E. HOOVER, Respondent, v. KANSAS CITY ELEVATED RAILWAY COMPANY and METROPOLITAN STREET RAILWAY COMPANY, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Walter A. Powell, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas and Ben. F. White for appellant.
(1) The court erred in refusing to sustain the demurrer to the evidence as to both defendants. (a) The question of ownership was contested throughout the trial; none was shown in this appellant. Brubaker v. Electric Light Co., 130 Mo.App. 444. (b) There was no proof of any negligence on the part of appellant; in fact, the proof showed conclusively there was none. Frauenthal v. Gaslight Co., 67 Mo.App. 1; Strack v. Met. St. Ry. Co., 216 Mo. 600. (2) The court erred in admitting in evidence an opinion of the Supreme Court of the State of Kansas, and in permitting counsel to read same to the jury. Heller v. Pub. Co., 153 Mo 216.
James A. Plotner, James L. Hogin and E. H. Gamble for respondent.
(1) Appellant's demurrer to respondent's evidence was properly overruled because (a) There was direct evidence that appellant owned and was using the wire that killed deceased and was negligent with respect thereto. Moreover, the happening of the event raised a presumption of negligence, which became conclusive upon appellant's failure to introduce any evidence. Gannon v. Gas Light Co., 145 Mo. 511; Geisman v. Electric Co., 173 Mo. 654; Winkelman v. Light Co., 110 Mo.App. 184; Harrison v. Electric Light Co., 195 Mo. 606; Heiberger v. Telephone Co., 133 Mo.App. 452; Von Trebra v. Light Co., 209 Mo. 648; Trout v. Gas Light Co., 132 S.W. 58. (b) Circumstantial evidence in civil actions to support a verdict need not rise to that degree of certainty which will exclude any and every other reasonable hypothesis. Railroad v. Woods, 66 Kan. 613; 17 Cyc., p. 820; Bradberry v. City, 80 Conn. 298; 3 Ency. of Ev., p. 81; Conner v. Railroad, 181 Mo. 397. (2) The opinion of the Supreme Court of Kansas in Metropolitan v. Gilbert, 70 Kan. 261, was properly read in evidence. R. S. 1909, sec. 6332; Hartman v. Railroad, 39 Mo.App. 88; Heiter v. Railroad, 53 Mo.App. 331.
Plaintiff, the widow of Robert F. Hoover deceased, instituted this action against the Metropolitan Street Railway Company and the Kansas City Elevated Railway Company to recover damages for the death of her husband which she alleges was caused by the negligence of defendants. At the close of the evidence the court directed a verdict for the first named defendant and overruled the demurrer to the evidence offered by the remaining defendant. The jury found the issues of fact submitted in the instructions in favor of plaintiff and returned a verdict against the Metropolitan Street Railway Company for $ 6500. Judgment was rendered for plaintiff in accordance with the verdict and the cause is before us on the appeal of defendant.
The death of Hoover occurred in Kansas City, Kansas, and the cause of action pleaded in the petition is founded on certain statutes of that state. The answer is a general denial.
The material facts of the case thus may be stated. Hoover was killed near the northeast corner of Fifth street and Minnesota avenue in Kansas City, Kansas, at about 10:30 p. m. July 10, 1907, by accidentally coming in contact with a broken wire, charged with a high current of electricity. He was walking on the sidewalk and it is not contended that he was negligent. Fifth street runs north and south, Minnesota avenue east and west, and their intersection is in the business part of the city and a central point of street car traffic. Four lines of electric street cars meet at this point, three of which were operated by the present defendant, the other by the Kansas City Elevated Railway Company. The broken wire with which Hoover came in contact was a guy wire which held in place and was attached to a feed wire carried on a pole at the northeast corner of the street intersection. The function of the feed wire was to carry the electric current employed in running the cars and the current was fed from this wire into the trolley wire by means of cross feed wires placed at intervals along the line. The guy wire was designed to keep the feed wire from being pulled towards the south and was stretched northward from the feed wire and fastened to a guy pole some distance north on Fifth street. It was wrapped around the guy pole at a height of ten feet and had been in place so long that it rusted through at the place of its attachment to the pole and broke shortly before the injury--just how long the evidence does not disclose. The guy wire was uninsulated and was not intended to carry any electricity. A device called a "Brooklyn" insulator was employed to attach the guy wire to the feed wire and to prevent the escape of electricity to the former wire. It is conceded this appliance was a perfect insulator as long as it was in good condition, but the evidence tends to show that the insulator in question had been in service a long time and was in a defective condition though the nature of the defect and the duration of its existence are not shown. The death of Hoover was caused by the diversion of the current carried by the feed wire into the guy wire. When he touched the loose end of the broken wire which had fallen to the sidewalk his body received and grounded the escaping current.
There was a drizzling rain at the time which doubtless aided the current to escape, but there was no wind or pronounced electrical disturbance sufficient to cause a defect in the insulator.
The first point argued by defendant in support of its contention that the court erred in not sustaining the demurrer to the evidence is that the evidence fails to show that defendant was the owner of the guy wire. There is no direct evidence of this fact in the record, but it is shown that the trolley and feed wires and the pole carrying the feed wire belonged to defendant and were integral parts of its electric railway. From these facts the jury were entitled to infer that the guy wire also was the property of defendant...
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