Majors v. Ozark Power & Water Company
| Decision Date | 05 June 1920 |
| Parties | NORA M. MAJORS, Appellant, v. OZARK POWER & WATER COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court.--Hon. Grant Emerson, Judge.
AFFIRMED.
Judgment affirmed.
D. S Mayhew and J. Olin Biggs for appellant.
(1) Persons who for their own private gain or profit send a dangerous agency, electricity, out into the streets and alleys of the city are bound to use the utmost care in preventing the escape from the wires of the electrical current to the injury of others. Geismann v. Mo.-Edison Electric Co., 173 Mo. 678; Thompson on Negligence, (2 Ed.), 797. (2) Such persons are bound to the utmost care in inspecting its wires, carrying the electrical current and to remove or remedy any defects thereon, no matter how created or by whose fault. Winkleman v. Elec. Light Co., 110 Mo.App. 184; Thompson on Negligence, sec. 802. (3) The doctrine of concurrent negligence is firmly rooted in the jurisprudence of this State. A defendant may be liable even if the accident was not caused by his sole negligence. He is liable if his negligence concurred with that of another, or with an act of God, or with an inanimate cause, and become a part of the direct and proximate cause of the injury. Harrison v. K. C. E. L. Co., 195 Mo. 606; Ganahl v. U. Ry. Co., 177 Mo.App. 511; Dameschoky v Suhle, 195 Mo.App. 478; Newcomb v. N. Y. C. & H. R Ry. Co., 169 Mo. 442; Thompson v. City of Slater, 197 Mo.App. 261; Buckner v. Horse & Mule Co., 221 Mo. 700. (4) It is the duty of a company engaged in supplying electricity to consumers to use every precaution to insulate its wires at all points where people have a right to go, and to use the utmost care to keep them so insulated, and for a failure to take such precaution it is liable in damages for personal injuries to a person who is in a place where he had a right to be, unless such person was guilty of negligence on his part, directly contributory thereto. Geismann v. Mo.-Edison E. L. Co., 173 Mo. 654.
A. E. Spencer for respondent.
(1) At the conclusion of plaintiff's evidence the court announced that he would instruct the jury that plaintiff could not recover. Whereupon plaintiff took a non-suit with leave. No exception was saved to this action of the court. For this reason the ruling of the court in that matter cannot be reviewed in this appeal. The only question raised by the appellant is the correctness of the court's action, in giving such instructions. Lewis v. Center Creek Mining Co., 199 Mo. 463; Arnold v. Insurance Co., 167 Mo.App. 154; Montei v. Railroad Co., 130 Mo.App. 149; Carter v. O'Neill, 102 Mo.App. 391; McClure v. Campbell, 148 Mo. 96. (2) Even if defendant's wires were defectively insulated, or even uninsulated wires, this condition was not the proximate cause of the injury, and defendant is not liable. Mathiason v. Mayer, 90 Mo. 585; Luehrmann v. Gas Co., 127 Mo.App. 213; Foley v. McMahon, 114 Mo.App. 442; Brubaker v. Light Co., 130 Mo.App. 439; Williams v. Company, 187 S.W. 556, and 274 Mo. 1; Brown v. Railway, 20 Mo.App. 222; Henry v. Railway, 76 Mo. 288; Washburn v. Light Co., 214 S.W. 410. Gilliland v. Railway, 19 Mo.App. 411; Geroski v. Light Co., 247 Pa. 304, 93 A. 338. Seith v. Company, 241 Ill. 252, 89 N.E. 425; Brush El. Lt. Co. v. Lefevre, 93 Tex. 604, 57 S.W. 640; Leeds v. Company, 178 N.Y. 118, 70 N.E. 219; Consolidated, etc., Co. v. Koepp, 64 Kas. 745; 68 P. 608; Kempf v. Railroad Co., 82 Wash. 263, 144 P. 77; Elliott v. Light Co., 204 Pa. 568, 54 A. 278; Stone v. Railroad Co., 171 Mass. 536, 51 N.E. 1; Mo. P. Ry. Co. v. Columbia, 65 Kas. 390, 69 P. 338; Cole v. German, etc. Society, 124 F. 113; Johnston v. Light Co., 78 Neb. 24, 110 N.W. 711; Southside Ry. Co. v. Trich, 117 Pa. 390, 11 A. 627; Glassey v. Ry. Co., 185 Mass. 315, 70 N.E. 199; Deisenrieter v. Co., 99 Wis. 279, 72 N.W. 735; Norfolk, etc. Co. v. Spratley, 103 Va. 377, 49 S.E. 50224; Seale v. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602.
The appellant brings her appeal from a judgment adverse to her rendered in the Circuit Court of Jasper County. The case made by her is that her husband was a common laborer, living in Peirce City, Missouri, and in the month of January or February, 1919, was engaged by Henry Mohlering to cut some large trees in the yard of the home of one Webber. Plaintiff's husband was killed while engaged in this work in the following manner: He, with several other men including Mohlering and Mohlering's brother, had cut one tree in Webber's yard, and after that cut down a tree which under the evidence was 18 inches in diameter and 50 feet high. They undertook to throw this tree in a certain direction but owing to the fact that it fell sooner than they anticipated and struck some other limbs, its top reached out into the street where it struck some high-powered electric current wires owned and maintained there by the defendant. Those wires were not insulated. There is evidence that there had been insulation on some of the wires in the past but it had rotted off and afforded no protection at the time of the injury. The top of this tree, when it struck the wires, crushed them to the ground, breaking one and holding the other two down to the ground. The wires prior to the time the tree fell upon them were maintained on poles out in the street about 40 feet from this tree, and from 20 to 30 feet up over the street or roadway. When the tree crushed down these wires a singing noise was made by the wires and Mohlering, who was in charge and the employer of plaintiff's husband, went into Webber's house to telephone the Company to cut off their electric current. Plaintiff's husband was at the stump of the tree, and while Mohlering was in the house telephoning he, Majors, walked up toward the top of the tree, through the limbs, and when he had gotten at a place some six or seven feet from where the wires were crushed down, he either stumbled or received a shock of electricity that caused him to lunge forward toward the wires. One of his hands, according to one of plaintiff's witnesses, struck the broken wire. Another witness for plaintiff testified that his hand went forward and rested under one of the wires that was not broken. At any rate, he was gotten out by the workmen and died almost immediately.
The charge of negligence in the petition is that the defendant carelessly permitted its wires, which were strung on poles and were charged with electricity, to become bare by reason of the fact that the insulation on the wires had rotted off from long and constant use and permitted said wires to remain in that condition for a long time prior to the date of the injury, and all that it knew, or should have known by the exercise of ordinary care and caution, that the wires were bare and uninsulated and were therefore dangerous and deadly to human life to any one coming in contact therewith.
The answer was a general denial and a plea of contributory negligence.
At the end of plaintiff's evidence the defendant offered an instruction to the court directing the jury to find the issues for the defendant, which the court gave. The record before us shows as follows: The court afterwards overruled plaintiff's motion to set aside the non-suit, to which latter action of the court the plaintiff objected and excepted.
It is the contention of appellant that the defendant is answerable for this injury under these circumstances, because of the fact that it had failed to properly insulate these wires.
Without going into the question of whether plaintiff's husband was guilty of contributory negligence, as a matter of law, in leaving his place by the stump of the fallen tree and going up into the branches of the tree where he came in contact with the wires, as we have set out, knowing that they were high-powered wires, were mashed down under the tree, we think that the action of the court in giving the instruction was proper, because plaintiff's evidence had failed to make out a case of negligence against the defendant.
As a first proposition, we believe it would be nothing more than wild conjecture to hold that the failure to insulate the wires was the cause of plaintiff's husband meeting his death, with the weight and crash of a tree 50 feet high, with a diameter at its stump of 18 inches, falling upon and crushing to the ground these wires. To say that subjecting a properly and newly insulated wire to such a crash and force would have kept this wire in such condition as to have prevented the electricity from escaping as it did is purely conjectural. We take judicial knowledge that the insulation on electric wires is a covering of fiber and material that will not withstand such tremendous shocks as that caused to this wire by the tree falling upon it, and if the defendant is to be held for the death of this man the evidence must be sufficient to warrant a finding that the failure to insulate caused his death.
The law is well settled that a case should not be submitted to a jury where under the testimony the cause of the...
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