Jeffrey v. Union Electric Light & Power Co.
| Decision Date | 04 February 1913 |
| Citation | 153 S.W. 498,171 Mo.App. 29 |
| Parties | HARRY JEFFREY, Appellant, v. UNION ELECTRIC LIGHT & POWER COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.
AFFIRMED.
Judgment affirmed.
Frederick A. Mayhall for appellant.
(1) When injury or death is caused by coming in contact with such a wire, it is conclusively presumed that the insulation of the wire was defective, and the doctrine of res ipsa loquitur applies. Von Trebra v. Gas Light Co., 209 Mo. 659; Geisman v. Edison El. Co., 173 Mo. 678; Ryan v Railroad, 190 Mo. 621; Young v. Oil Co., 185 Mo. 634; Gannon v. Gas Light Co., 145 Mo. 502; Dolan v. Same, 145 Mo. 550; 15 Cyc. 471. (2) It is not contributory negligence, as a matter of law, for one to attempt to remove a telephone wire from the street, without rubber gloves. Croswell on Electric Law, sec. 251; 2 Joyce on Electric Law (2 Ed.), sec. 607; Warren v. Railroad, 141 Mich. 298; Grimm v. Del. & A. Tel. Co., 72 N. J Law, 276; Rowe v. Tel. Co., 66 N. J. Law, 19; 1 Joyce on El. Law, secs. 446, 449a; Bourget v. City of Cambridge, 156 Mass. 391; Klages v. Mfg. Co., 88 Minn. 458; Fox v. Village of Manchester, 183 N.Y. 141; Hebert v. Ice Co., 111 La. 532; Citizen Tel. Co. v. Thomas, 99 S.W. 879; Guinn v. Del., etc. Co., 72 N. J. Law, 276; Newark E. L. & T. Co. v. McGilvery, 62 N. J. Law, 451; Light Co. v. Orr, 59 Ark. 215; 2 Joyce on Elec. Law (2 Ed.), sec. 607; Croswell on Elec. Law, sec. 251.
Schnurmacher & Rassieur for respondent.
(1) Notwithstanding the strict standard of care imposed upon electric wire using companies in this State, there can be no liability where the injured party was himself guilty of negligence contributing to the injury. Winkelmann v. Light Co., 110 Mo.App. 184; Trout v. Gas Light Co., 151 Mo.App. 207; Clark v. Railroad, 234 Mo. 396; Roberts v. Telephone Co., 166 Mo. 370; Geismann v. Missouri-Edison Electric Co., 173 Mo. 654. (2) The questions of negligence on the part of the company and of contributory negligence on the part of the employee, are ordinarily for the jury to determine, particularly the question of contributory negligence. 2 Joyce on Electric Law (2 Ed.), sec. 663; Geismann v. Missouri-Edison Electric Co., 173 Mo. 654; Trout v. Gas Light Co., 151 Mo.App. 207, 160 Mo.App. 604; Von Trebra v. Gas Light Co., 209 Mo. 648. (3) Whether the failure of deceased to use the rubber gloves, furnished him for just such occasions as when he met his death, constituted contributory negligence, was eminently a question for the jury. Junior v. Light & Power Co., 120 Mo. 79; Trout v. Gas Light Co., 151 Mo.App. 207, 160 Mo.App. 604; Mahan v. Street Railway, 189 Mass. 1.
Allen, J., not sitting.
--This is a suit for damages alleged to have accrued to plaintiff through the negligence of defendant, which, it is said, occasioned the wrongful death of his minor son. The finding and judgment were for defendant, and plaintiff prosecutes the appeal.
Plaintiff is the father of Roy Jeffrey, a youth aged seventeen years, one month and nineteen days, at the date of his death. Plaintiff's son was in the employ of the Bell Telephone Company, and had been for six months, as a wire splicer and inspector, and came to his death while engaged in the line of duty through receiving an electric shock communicated from defendant, Union Electric Light & Power Company's wires by means of a Bell Telephone wire which he held in his hand. The young man had been directed by his foreman to accompany another workman, Burns, to the alley connecting Taylor with Euclid avenues and running east and west between Berlin and Maryland avenues in St. Louis for the purpose of testing the wires of the Bell Telephone Company. The wires of the Bell Telephone Company, in whose employ plaintiff's son was at the time, and those of defendant, Union Electric Light & Power Company, both occupied the same poles on the north side of the alley. There were several cross arms on the poles and it appears that the wires of defendant Union Electric Light & Power Company were made fast to the lower cross arms, while those of the Bell Telephone Company were made fast to the upper cross arms, about three feet above.
A severe rain and windstorm occurred about one o'clock during the day and as a result of this the limb of a tree was cast against a Bell Telephone wire with sufficient force to break it. Upon the breaking of the wire, one end fall to the ground near the center of the alley, while a portion of the wire above rested upon the cable of defendant Union Electric Light & Power Company. The evidence tends to prove that the insulation was broken and worn off of the cable of defendant company at the point where the telephone wire came in contact with it. While plaintiff's son and his companion were engaged about a telephone pole in another portion of the alley near two o'clock in the afternoon, a gentleman, passing, called their attention to the fact that a telephone wire had been broken by the storm an hour before and one end had fallen to the ground. Decedent thereupon said to his companion that he would go up the alley and investigate the "trouble." It appears that plaintiff's son had been in the employ of the telephone company for several months and was familiar with the danger incident to high electric currents, though it is said no great danger inheres in the handling of electric light wires unless they come in contact with others heavily charged with the current. However, the evidence is that the electric light cable of defendant across which the telephone wire had fallen was a high tension wire and carried an electrical current of 2200 voltage. Such current was dangerous to human life and the evidence reveals that plaintiff's son and all of those engaged in such work were familiar with this fact. Defendant's instructions to plaintiff's son and to all its employees were to treat all wires as live wires and handle them with rubber gloves and to wear rubber boots while so doing. Furthermore, it had furnished the young man and his companion with rubber gloves and rubber boots to wear when handling live wires or wires which suggested danger. The abrasions, or broken insulation, on defendant's cable across which the telephone wire had fallen were open and obvious to one standing upon the ground beneath, for several of plaintiff's witnesses so stated the fact to be and no one denies it. Plaintiff's son approached the broken wire in the alley and was seen to look up at the point where it lay across defendant's cable before he touched it. After so looking at the crossing of the wires and without putting on rubber gloves or boots, he took the end of the broken telephone wire in his hand and met an instant death by means of the electric current communicated therefrom, which, it is said, passed through him and formed a circuit with the damp earth below.
The evidence abundantly reveals a case of negligence on the part of defendant and the court properly submitted that question to the jury. Indeed, there are no criticisms leveled against the...
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