Junior v. Missouri Electric Light & Power Co.
| Decision Date | 05 March 1895 |
| Parties | Junior, Appellant, v. Missouri Electric Light and Power Company |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. John A. Harrison Judge.
Affirmed.
Harvey & Hill for appellant.
(1) It was the duty of defendants who knew of the danger to which the deceased was exposed to warn him of the same. Wilkins v. Railroad, 101 Mo. 106; Hurt v. Railroad, 94 Mo. 255. (2) The court erred in withholding the case from the jury because the proof was not conclusive that deceased knew of the danger to which he was exposed or that he would have seen the same even if he had looked in the proper direction. Lynch v. Railroad, 112 Mo. 433; see, also, 106 Mo 423; 108 Mo. 480. Again, it was error to hold the deceased guilty of contributory negligence on the ground that the wires were equally exposed to both.
Pollard & Werner for respondent.
(1) The abstract required by the rule of this court is intended to stand as a substitute for, and in lieu of, the record, and the latter will not be examined, but the abstract will be relied upon, and the cause decided upon it. Craig v Scudder, 98 Mo. 664. (2) Where the facts being admitted are not sufficient, together with the inferences which a jury might legally draw therefrom, to support a verdict, on motion, instruction to the jury to find for the defendant is proper. There is no evidence to show that appellant was entitled to recover; there is no evidence tending to show negligence on the part of respondent, and the evidence does show such contributory negligence on the part of deceased as bars a recovery for his death. (3) Deceased was guilty of contributory negligence. Flood v. Tel. Co., 131 N.Y. 603.
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 first 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 linemen as the employees who made the connections and ascended the poles.
The cause was tried to a jury in March, 1893, and on the ninth 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: First. In refusing plaintiff a change of venue. Second. In sustaining a demurrer to the evidence. Third. In excluding certain contracts of defendant with the city of St. Louis.
I. There was no error in refusing the change of venue. The record discloses that on the third day of March, 1893, both parties appeared by their respective attorneys, announced ready for trial, and a jury of twelve 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 sixth, and the application was denied.
We think this application came too late. After a party has announced ready for trial, 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.
II. 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 the 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 extreme ends for the space of one eighth or one sixteenth of an inch; and that deceased sat upon a cross arm of the pole preparing to connect a wire for the butcher shop with these ends; that the fact that these two ends...
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