Kile v. Union Electric Light & Power Company
| Citation | 130 S.W. 89,149 Mo.App. 354 |
| Parties | D. MAE CARD KILE, Appellant, v. UNION ELECTRIC LIGHT & POWER COMPANY, Respondent |
| Decision Date | 07 July 1910 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. Hugo. Muench, Judge.
Judgment reversed and cause remanded.
Chas L. and Phillips Moss for appellant.
(1) It was the duty of defendant to keep its wires in a condition not dangerous to human life and to use all usual, available necessary and reasonable precautions against injury to its employee. Pauk v. D. B. Co., 159 Mo. 477; Curtis v. McNair, 173 Mo. 280; Mather v. Rillston, 156 U.S. 398; Burke v. Anderson, 69 F. 314; Western v. Berberick, 94 F. 333; DeWees v. Meremac, 128 Mo. 423; Keegan v. Kavanagh, 62 Mo. 232; Hysell v. Swift, 78 Mo.App. 44. (2) There is nothing whatever in the amended petition from which plaintiff's husband can be held to have assumed the risk of the danger. The pleading asserts the master's negligence only, that he cannot be held to have assumed. Buesching v. Gas Co., 73 Mo. 219; Weller v. C. M. Co., 164 Mo 199; Geiselman v. Ed. Co., 173 Mo. 678; Ryan v. Railroad, 190 Mo. 621; Von Treba v. Laclede, 209 Mo. 648.
Jno. H. Drabelle for respondent.
(1) The amended petition in this case avers a duty beyond and in excess of that exacted by the law of a master to his employee, and therefore, states no cause of action, and is subject to demurrer on that ground. Turner v. Harr, 114 Mo. 335; Tabler v. Railroad, 93 Mo. 79; Bowen v. Railroad, 95 Mo. 268; Stalzer v. Packing Co., 84 Mo.App. 656; 2 Joyce on Electricity (New Ed.), sec. 652; note to Amer. Electrical Cases, 644. (2) The amended petition, in the issuable facts averred, discloses that it belongs to the class to which the doctrine of assumption of risk by the employee applies, and the demurrer was rightfully sustained by the trial judge on that ground. Wray v. Southwestern Co., 68 Mo.App. 380; Junior v. E. L. & P. Co., 127 Mo. 79; Street Car Co. v. Watkins, 38 S.E. 884; Electric Co. v. Simpson, 109 S.W. 1155; Flood v. Telephone Co., 131 N.Y. 603; McGorty v. Telephone Co., 69 Conn. 635; Soutar v. Electric Co., 68 Minn. 18; Telephone Co. v. McMullen, 58 N.J.L. 155; Carr v. Electric Co., 7 Amer. Electrical Cases 746. (3) The facts disclosed in the amended petition rebut the presumption of due care on the part of the deceased, and show that his own negligence was the cause of the accident, which question is also raised by the demurrer. 20 Am. and Eng. Ency. Law 120; Railroad v. Dorsey, 119 Ga. 363; Judge v. Electric Co., 21 R. I. 128; L. & P. Co. v. Moore, 118 S.W. 831; Cinn., G. & E. Co. v. Archdeacon, 88 N.E. 125; Hart v. Lighting Co., 201 Pa. 234; Huber v. Railroad, 92 Wis. 636; Buckley v. Lighting Co., 183 N.Y. 506; Railroad v. Simmons, 107 Tenn. 392.
--This appeal is from a final judgment against plaintiff on a demurrer interposed by defendant to her amended petition. The cause was instituted in the St. Louis City Circuit Court, on the 13th day of September, 1907. The appeal was taken to the St. Louis Court of Appeals, and is here on an order of that court transferring the cause.
The petition alleges that plaintiff, on the 31st day of May, 1907, was the wife of James R. Kile; that the defendant is a corporation organized under the laws of Missouri engaged in business in the city of St. Louis in manufacturing and furnishing electricity; that the defendant owned, maintained and operated in said city, a system of wires strung on poles standing in the public streets and alleys of said city, and that said wires carried a high and dangerous voltage of electricity; that said wires had been allowed and permitted by defendant, on the 31st day of May, 1907, to get into an unsafe and dangerous condition; that on said day the husband of plaintiff being engaged in the line of his duty as a lineman in the employ of defendant, under the directions and orders of defendant's foreman, attempted to change the wires of defendant from one cross-arm on one of said poles, to a new cross-arm thereon; that while on said pole he came in contact with the wires of defendant which had been allowed to become defective in insulation and in a condition dangerous to human life, and were so worn and defective as to offer no protection against the electricity on said wires, and he was then and there and thereby, shocked, burned and killed.
The petition further alleges "that defendant did not take all the usual, available, necessary and reasonable precaution against the possibility of shock and injury to its employee, the said James R. Kile, while he was as aforesaid engaged in his work on said pole and its wires thereon at said time, in this: That said wires, being defective and dangerous, as averred, were not at that time and place, completely covered as they should and could have been by defendant with rubber tubing, circular loom or other safe insulation or insulating material, and thereby made and rendered safe to him, said employee, in his said work at said time and place; that the aforesaid defective and dangerous condition of defendant's said wires which thus caused the death of plaintiff's husband was well known to the defendant, or in the exercise of due and proper attention and diligence in the care thereof by defendant, should have been so known; that said deceased came to his death because of the negligence and misconduct of defendant, and without his own fault or negligence, and because of the wrongful act, negligence and default of defendant as aforesaid, the plaintiff has been damaged in the sum of five thousand dollars, for which she asks judgment."
The trial judge filed a written memoranda of his opinion sustaining the demurrer. From this we gather that the court held the petition insufficient because of the relation between the defendant and the deceased. In other words, the court held the allegations of the petition sufficient if the action had been brought by some person not a servant. The petition plainly alleges that the defendant had allowed its wires to become defective, and the insulation so worn and defective as to offer no protection against the electricity on said wires, and that this defective condition was known to the defendant, or might have been known by the exercise of proper care.
Ever since the case of Geismann v. Mo. Ed. Elec. Light Co., 173 Mo. 654, 73 S.W. 654, the rule has been settled that it is the duty of a company engaged in supplying electricity to patrons by use of wires strung along and across the streets of a city, to use every accessible precaution to insulate the wires at all points where people have a right to go, and to use the same care to keep the wires so insulated, and for a failure to take such precaution the company will be held liable to damages for personal injuries to persons coming in contact with such wires, unless such person...
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