Laudwig v. Central Missouri Power & Light Co.

• Decision Date: 04 February 1930
• Docket Number: 27556
• Parties: O.H. Laudwig v. Central Missouri Power & Light Company, Appellant
• Court: Missouri Supreme Court

24 S.W.2d 625

324 Mo. 676

O.H. Laudwig v. Central Missouri Power & Light Company, Appellant

No. 27556

Supreme Court of Missouri

February 4, 1930

Appeal from Adair Circuit Court; Hon. James A. Cooley Judge.

Affirmed.

Higbee & Mills for appellant; E. B. Hamilton of counsel.

(1) The court erred in overruling defendant's demurrer to plaintiff's petition, because the same fails to state a cause of action: (a) The petition ignores the fact that the wires were insulated by being elevated to a height where defendant had no reason to anticipate, or expect, anyone would come in contact therewith. It pleads no duty on defendant's part to insulate them. Isolation is the best insulation. The petition alleges the current jumped five to eight feet and injured plaintiff. This is contrary to the well known physical and scientific facts. The lightning arresters exclude such a theory. (b) The petition does not allege that plaintiff complied with Secs. 10737, 10738, R. S 1919, in that it is not alleged that he applied for a permit to move the house upon the highway, nor is it alleged that a permit to do so was issued to him by the clerk of the county court. Neither is it alleged that the county clerk gave the defendant five days' notice, as provided by Section 10739, to cut or remove any wires or poles that might interfere with the moving of a house. Plaintiff was a law-violator and a trespasser and defendant was under no duty to keep the wires in such a condition as not to injure a law-violator or a trespasser who might come in contact therewith, or who might be around the same when violating the law of the State. Dalton v. Railway, 208 S.W. 828; Barney v. Railroad, 126 Mo. 372; 20 C. J. 348, par 40; Howard v. Transmission Co. (Mo.), 289 S.W. 587; State ex rel. v. Trimble, 285 S.W. 455. (2) The court erred in overruling defendant's demurrer to the evidence at the close of the case. (a) It is not alleged, nor proven, that plaintiff applied to the county clerk for a permit to move the house in question on the highway; nor is it alleged or proven that defendant was given notice to cut or remove any wire or pole that might interfere with the moving of the house; nor is it alleged or proven that the owner or owners of the telephone wires were given any such notice. R. S. 1919, sec. 10737 et seq. Had such notice been given the telephone company would have been required under penalty, to have removed the telephone wires which caught on the house, and which made it necessary for plaintiff to go upon the same. R. S. 1919, sec. 10740. (b) Plaintiff, by failure to comply with Secs. 10737 to 10743, R. S. 1919, became and was a trespasser and a law-violator and defendant was under no duty to him. Dalton v. Railway, 208 S.W. 830; Barney v. Railroad, 126 Mo. 372. (c) The evidence shows the wires were elevated to a height of twenty-five feet on wooden poles and attached to porcelain insulators, and the wires were twenty-three feet high at the lowest point in the sag, between the poles. Such construction isolated the wires and defendant could not be expected to foresee, or anticipate, that plaintiff would violate the requirements of Sec. 10737, R. S. 1919, and be placed in danger thereby. Defendant was under no duty to insulate the wire, and all the evidence shows wires could not be insulated. Defendant is only bound to anticipate things which are the natural and probable results of its act. 17 C. J. 740 (75), 750 (81); 20 C. J. 359 (45). (d) Also because defendant was under no duty to insulate its wires, even if they could have been insulated, under the circumstances of this case; defendant was not required to anticipate that a person on top of a house or other extremely tall object being moved across, not along, the public highway, not at a public crossing, might come in contact with, or be exposed to, danger on account of such wires. Plaintiff knew the wires were heavily charged with electricity and his contributory negligence in coming in close proximity thereto or in contact therewith, bars recovery. (e) The defendant was under no duty to plaintiff or the public to insulate the wire. No one could reasonably have been expected to be exposed to or come in contact with it. Howard v. Transmission Co., 289 S.W. 599. (f) Also because all the evidence established that it was impossible to insulate wires carrying a high voltage of electricity so as to afford any protection. Spain v. Burch, 169 Mo.App. 94; Faucette v. Grim, 193 Mo.App. 585. (g) The court should take judicial notice of the fact that it is physically impossible for electric current to jump from five to eight feet through the open air and strike and injure plaintiff. Such testimony is contrary to common knowledge of mankind. Such evidence is untrue, and is contrary to the well known physical and scientific facts, of which this court has judicial knowledge. 23 C. J. 70, 71, 75; Chittick v. Transit Co., 244 Pa. 15; Reiman v. Larkin, 222 Mo. 156; Payne v. Railway, 136 Mo. 562; State v. Webb, 205 S.W. 190; Schmitt v. Standard Oil Co. (Mo. App.), 221 S.W. 390; Roseman v. Ry. (Mo. App.), 251 S.W. 106; Gurney v. Railway, 104 Mo. 211. (3) The court permitted plaintiff, and his wife to testify that several days after the accident, defendant's local manager, said to them that he had known electric current to jump between six and eight feet. The admission of such testimony, not a part of the res gestae, was error, same being purely hearsay, immaterial and prejudicial. 22 C. J. 367, 378; Redmon v. Railroad, 185 Mo. 1. (4) Plaintiff's Instruction 1 assumed that defendant could, and that it was defendant's duty to, insulate its wires at the point in question and to anticipate that plaintiff or others would be on a house being moved across the road not at a public crossing and come in contact with the wires; while under all the evidence it is clear that such wires could not be insulated. Said instruction is also erroneous in that it omits therefrom notice by plaintiff to defendant and knowledge on the part of defendant that the plaintiff was engaged in moving the house in question. The instruction is also erroneous because it disregards the failure of plaintiff to obtain a permit to move the house from the county clerk as well as the failure to give notice to defendant of the intention to move the house, as required by Sections 10737 to 10743, R. S. 1919.

John M. Campbell and M. D. Campbell for respondent.

(1) Appellant's answer contains no sufficient denial and raises no issue and tenders no defense. Said answer, after certain allegations, concludes, "but denies each and every other allegation therein contained." Montgomery v. Clem, 282 S.W. 1052. (2) One of the principal insistencies of appellant is that plaintiff was a trespasser, and that hence it owed him no duty. In the trial of the case appellant's counsel stated to the trial court "we are not claiming he (plaintiff) was trespassing." Under the well-established rule of appellate procedure they are bound by that position, and cannot now face about and say that he was a trespasser. Sec. 10738, R. S. 1919, has no application in this case. By its terms it applies only in those instances where, in the moving of a house, "it will be necessary to cut, remove, raise or in any way interfere with any electric transmission lines." Respondent in the moving of the house did not interfere with, cut, remove or raise the electric transmission line. It was not necessary for him to, nor did he touch the poles or wires, or in any way interfere with appellant's property. Whether he had or did not have a permit to move the house is immaterial, for it would in no way have changed the course of his conduct. At the time of the injury he was on private property, at a place where no one but the owner of that property had the right to say he should not be. Williams v. Gas & Elec. Co., 187 S.W. 506; Blackburn v. Southwest Mo. R. Co., 167 S.W. 457; Shannon v. L. & P. Co., 287 S.W. 1036. (3) It is contended the court should take judicial notice of the alleged fact that it is physically impossible for an electric current to arc or jump a distance from five to eight feet. It has always beer the rule in this State that if evidence satisfies a jury and the trial court of the existence of a fact, an appellate court will not disturb that finding except in those instances when the evidence is clearly contrary to the physical facts. This contention of counsel is completely answered by the evidence. Power companies in order to avoid the expense incident to maintaining good insulation, have been endeavoring to convince courts and juries, not only in this, but in other states, that a 2300-volt wire could not be insulated. That contention has been exploded many times. Washburn v. Gas Light Co., 214 S.W. 416; Hill v. L. & P. Co., 169 S.W. 354; Kessler v. Power Co., 283 S.W. 705. Appellant's wire chief said that it was his experience that electricity "sometimes does some very surprising things." This point is well illustrated by the strange and inexplicable happening set forth in Hickman v. L. & P. Co., 226 S.W. 573. (4) The fact that the wire was uninsulated, and that plaintiff received shock therefrom, constitutes evidence of negligence on the part of defendant. Blackburn v. Southwest Mo. R. Co., 167 S.W. 457; Williams v. Gas & Elec. Co., 202 S.W. 1; Shannon v. L. & P. Co., 287 S.W. 1031; Geismann v. Elec. Co., 73 S.W. 654. It is the duty of a power company to do those acts and things necessary to confine the current to the wire designed to carry it.

Davis, C. Henwood, C., concurs; Cooley, C., not sitting.

OPINION

DAVIS

This is an action for damages for personal injuries. The basis of recovery is that defendant's wire negligently was permitted to be and to remain uninsulated whereby...