Junior v. Missouri Electric Light & Power Co.

• Citation: 127 Mo. 79,29 S.W. 988
• Court: Missouri Supreme Court
• Decision Date: 05 March 1895
• Parties: JUNIOR v. MISSOURI ELECTRIC LIGHT & POWER CO.

29 S.W. 988

127 Mo. 79

JUNIOR v. MISSOURI ELECTRIC LIGHT & POWER CO.

Supreme Court of Missouri, Division No. 2.

March 5, 1895.

INJURY TO EMPLOYE — ASSUMPTION OF RISK — CHANGE OF VENUE.

Deceased was killed by touching the uninsulated ends of "live" wires while in defendant's employ as a lineman. The exposed ends were 30 feet from the ground on a pole, and were perfectly obvious. It was the peculiar duty of linemen to look after the wires, and deceased, who was an experienced employé, ascended the pole for the express purpose of connecting these wires. He was provided with nonconducting rubber gloves, but did not use them. Held, that he assumed the risk.

Appeal from St. Louis circuit court; John A. Harrison, Judge.

Action by Agnes Junior against the Missouri Electric Light & Power Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Harvey & Hill, for appellant. Pollard & Werner, for respondent.

GANTT, J.

This is an action for personal damages by the widow of Alfred Junior, alleged to have been caused by the defendant's negligence in leaving its electric wires defectively and insufficiently insulated and covered, whereby her husband, who was a lineman in the employment of defendant, came in contact with said wires on the 1st day of December, 1890, while in the discharge of his duties as lineman, and was killed. The answer was a general denial, plea of contributory negligence on the part of deceased in the careless handling of the wires, and his neglect to wear the rubber gloves furnished him by defendant, the same being perfect nonconductors of electricity, and that it was the duty of deceased as a lineman to observe and know the condition of the wires as to insulation, and it was his duty to have examined the said wires as to insulation before coming in contact with them, all of which was well known to him; that the inspection of these wires was necessarily left to the lineman as the employés who made the connections and ascended the poles. The cause was tried to a jury in March, 1893, and on the 9th of March, the court sustained a demurrer to the evidence. A motion for new trial was overruled, and plaintiff appeals. The errors assigned are three: (1) In refusing plaintiff a change of venue; (2) in sustaining a demurrer to the evidence; (3) in excluding certain contracts of defendant with the city of St. Louis.

1. There was no error in refusing the change of venue. The record discloses that on the 3d day of March, 1893, both parties appeared by their respective attorneys, announced ready for trial, and a jury of 12 good and lawful men was selected, tried, and sworn, and thereupon the cause was continued until the next morning, or Saturday, March 4, 1893. On Saturday, and after the jury was impaneled, plaintiff filed her affidavit and petition for a change of venue, on the ground that the defendant had an undue influence over the minds of the inhabitants of St. Louis, and that the knowledge came to her after the jury was impaneled. The cause was continued to Monday, the 6th, and the application was denied. We think this application came too late. After a party has announced ready for trial, and selected and accepted a jury to try his case, it is too late to say the inhabitants of the county are under the influence of the opposite party. The law exacts more diligence than this, and the mere formal statutory affidavit will not convict the court of error who refuses a change of venue on no better showing. No complaint was made of the judge, and, as he determined the cause, it is absolutely certain that the supposed influence of defendant over the inhabitants wrought no substantial injustice to plaintiff in this particular case.

2. The all-important question in this record is the propriety of the court's action in sustaining the demurrer to the evidence. The negligence of which plaintiff complains here is the failure of defendant's foreman, in charge of the squad of men who were to make the connection of defendant's electric plant with the butcher shop on the Manchester road, to caution plaintiff's husband in regard to the exposed condition of the ends of these two wires. The evidence shows beyond cavil that plaintiff's husband was an experienced lineman; that he had worked for defendant in this capacity for several years; that he had also worked for other electric companies. The evidence shows that deceased ascended the pole alone that day to make the connection; that it was broad daylight; that two "live wires" of the defendant were devoid of insulating material at their...