May v. City of Hannibal

• Decision Date: 05 January 1915
• Docket Number: No. 13,869.,13,869.
• Citation: 172 S.W. 471
• Parties: MAY et al. v. CITY OF HANNIBAL et al.
• Court: Missouri Court of Appeals

172 S.W. 471

MAY et al. v. CITY OF HANNIBAL et al.

No. 13,869.

St. Louis Court of Appeals. Missouri.

January 5, 1915.

ELECTRICITY (§ 19) — ACTIONS FOR DEATH — INSTRUCTIONS — CONFORMITY TO PLEADINGS.

Where, though a petition contains a general averment of negligence, under which the doctrine of res ipsa loquitur would apply, it also alleges specific acts of negligence, such allegations render the doctrine of res ipsa loquitur inapplicable, and the instructions must require a finding on the specific acts alleged; and where a petition alleging negligence generally, resulting in an electric shock causing death, also alleged that the insulation of an electric light wire was worn and rotten, an instruction that, if decedent was killed as a direct result of a shock from such wire, that fact was conclusive proof of defective insulation, unless the jury found that the insulation was as safe as it could be reasonably made, that the utmost care had been used to keep it so insulated, and that while the insulation was in a safe condition the climbing spur strapped to decedent's foot came in contact with the insulation and punctured it, as defendant's evidence tended to show, through no fault of defendant, and through no defect in the insulation, was erroneous.

Appeal from Hannibal Court of Common Pleas; William T. Ragland, Judge.

Action by Charles L. May and others against the City of Hannibal and another. From a judgment for plaintiffs, defendant named appeals. Reversed and remanded.

Victor J. Miller, of St. Louis, for appellant. Hall, Robertson & O'Bannon, of Sedalia, for respondents.

NORTONI, J.

This is a suit under the wrongful death statute for damages accrued through defendant's negligence with respect to its duty to insulate a wire employed in transmitting electricity. Plaintiff recovered, and defendant prosecutes the appeal.

Plaintiff's minor son was in the employ of the Bell Telephone Company at the time of his death, and while in the line of duty came in contact with a wire owned by the defendant city of Hannibal and employed by it in the transmission of an electric current of high voltage. Because of the insecure insulation of this wire, the electric current was transmitted to decedent and caused his death. Both the present defendant and the Bell Telephone Company were jointly sued, but at the trial the court directed a verdict in favor of the telephone company, and referred the case to the jury against the present defendant alone.

It appears plaintiff's son was in a carrier suspended some 20 feet above the street from a messenger wire of the Bell Telephone Company at the intersection of Center street and an alley in the city of Hannibal, and while so seated was engaged at work on the wires of the Bell Telephone Company. Defendant city of Hannibal owned a system of wires through which it transmitted an electric current immediately adjacent to the wires on which decedent was at work, and his foot came in contact with one of defendant's wires. The evidence is that the instep of decedent's foot touched the wire, and he immediately fell from the carrier to the earth below. A slight abrasion on the limb indicated that he came to his death from an electric shock, and it appears, too, that his neck was broken from the fall. The case concedes that plaintiff's son was in the line of duty at the time, performing the task assigned him by his employer, the Bell Telephone Company, and that he was thus exposed to contact with defendant's wire at a place where it should have anticipated that the Bell Telephone linemen might be. On the part of plaintiff the evidence tends to prove that his son came to his death as the result of the contact of his foot with the poorly insulated wire of defendant city. On the other hand, the evidence for defendant tends to prove that the wire was sufficiently and properly insulated, but decedent carelessly brought his steel climbing spur, strapped onto his foot, against the insulation, broke through it by pressing against a cross-arm, and thus received the electric shock from which he died. Besides containing a general allegation of negligence, the petition avers, too, that defendant was negligent in permitting the insulation on defendant's wire through which the electric current was communicated to become worn and rotten.

It is urged the court erred in refusing to direct a verdict for defendant, because there is no evidence tending to prove...