Morris v. Kansas City Light & Power Company

• Decision Date: 11 February 1924
• Docket Number: 23219
• Parties: FRED W. MORRIS v. KANSAS CITY LIGHT & POWER COMPANY, Appellant
• Court: Missouri Supreme Court

258 S.W. 431

302 Mo. 475

FRED W. MORRIS v. KANSAS CITY LIGHT & POWER COMPANY, Appellant

No. 23219

Supreme Court of Missouri

February 11, 1924

Motion for Rehearing Overruled February 11, 1924.

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Reversed.

John H. Lucas, William C. Lucas and Ludwick Graves for appellant.

(1) Respondent was guilty of contributory negligence as a matter of law. Frauenthal v. Laclede Gaslight Co., 67 Mo.App. 1; Junior v. Elec. L. & P. Co., 127 Mo. 79; Biddlecom v. Grain Co., 178 S.W. 750; Shade v Bay Counties Power Co., 152 Cal. 10; Capital Gas Co v. Davis, 128 S.W. 1062, 138 Ky. 628. Lydon v Edison Elec. Co., 209 Mass. 529; Johnson v. Elec. Light Co., 78 Neb. 27, 17 L. R. A. (N. S.) 435; McNamee v. Western Union Tel. Co., 125 N.Y.S. 622, 140 A.D. 874; Haertel v. L. & P. Co., 219 Pa. 640; Edmundson v. L. & P. Co., 233 Pa. 591; Bowman v. Mill & Light Co., 158 S.W. 200; Druse v. Power & Light Co., 86 Wash. 519; Wilger v. Traction & Power Co., 160 Wis. 654. (2) The proximate cause of the injury was not any negligent act of the appellant, but: (a) The negligent act of the respondent in pushing or tampering with the wire and in taking hold of or coming in close proximity to said wire. State ex rel. v. Ellison, 271 Mo. 463; Boelsel v. Wells Fargo & Co., 260 Mo. 463; American Brew Assn. v. Talbot, 141 Mo. 674; Biddlecom v. Grain Co., 178 S.W. 750; Smith v. Ozark Water Mill Co., 238 S.W. 575. (b) And the breaking of the wire was an act of God, which was unforeseen, and for which appellant was not responsible. Merritt Creamery Co. v. Santa Fe Railroad Co., 139 Mo.App. 149; Lightfoot v. Ry. Co., 126 Mo.App. 532; Lamar Mfg. Co. v. Ry. Co., 117 Mo.App. 453; Moffett Comm. Co. v. Union Pac. Ry. Co., 113 Mo.App. 544; Strack v. Tel. Co., 216 Mo. 601. (3) There was no evidence that appellant had notice that the wire was down before the accident. Strack v. Tel. Co., 216 Mo. 601; Flock v. Santa Fe, 285 Mo. 48. (4) The accident couldn't have happened in the way and in the manner that the respondent contends, as it is against the physical facts as shown by actual measurement and demonstration. The court nisi should have granted a new trial on this ground. Sexton v. Street Railway, 255 Mo. 254; Phippin v. Railroad, 196 Mo. 343; Hayden v. Railroad, 124 Mo. 566; Kelsey v. Railroad, 129 Mo. 362; Huggart v. Railroad, 134 Mo. 679; Payne v. Railroad, 136 Mo. 583; Petty v. Railroad, 179 Mo. 666.

T. J. Madden and Harry R. Freeman for respondent.

(1) The ultimate fact aimed at was the escape of the current which the law says is regarded as almost conclusive proof of negligence. The insulation was old, worn, decayed and in no manner sufficient to confine the current. Knowledge of the insulation was entirely limited to the defendant and its expert servants. The public could not safely examine the insulation except at a safe distance. The insulation was in such condition that it permitted the escape of electric power. That made a prima-facie case under the law. Von Trebra v. Gaslight Co., 209 Mo. 648; Harrison v. Light Co., 195 Mo. 606; Hill v. Union E. L. & P. Co., 260 Mo. 75; Geismann v. Elec. Co., 173 Mo. 654; Hickman v. Light Co., 226 S.W. 573. (2) Plaintiff was actually discharging defendant's duty in guarding the public from danger, while the defendant took its leisure time to act. Had the warnings been heeded within anything like reasonable time misfortune would not have befallen the plaintiff. It is admitted on all hands that the wire was hanging down on the walk or within reach of a child's hand. Some of the defendant's witnesses placed the wire across the walk and up into plaintiff's front yard. The wire had been down for about an hour. Mr. Burgenbaugh narrowly escaped with his life when the wire fell. After that he walked several blocks to his home and had eaten his dinner before he heard the screams attending the injury to Mr. Morris. Other people were passing back and forth upon this walk and the plaintiff had pushed the wire from the sidewalk and was guarding the children from its contact. Mrs. Fritz and Mr. Mohr were urging the defendant's agents to come and take the situation in hand. But they supinely took their own good time while people passed within reach of this wire which was discharging 2300 volts of death into the walk or tree or anything else it touched. The conduct of defendant's servants transcends the limits of negligence and enters the region of misdemeanor or crime. Von Trebra v. Gaslight Co., 209 Mo. 648; Hill v. Union E. L. & P. Co., 260 Mo. 43. (3) Counsel seek to evade the issue of defendant's negligence by shifting the contest to the alleged contributory negligence of the plaintiff. In considering his acts the gross negligence of the defendant must be taken into account for his conduct was colored and influenced by its culpable neglect of duty. It had created a condition that called for relief from someone. Every human impulse demanded that the public using this sidewalk be protected from the dangers which lay in its path. This situation came closer home to the plaintiff than to any of his neighbors and he, acting up to the best that was in him, attempted to discharge the duty that primarily belonged to the defendant, so he cleared the sidewalk of the wire and guarded these two little children from the danger. Defendant should not be permitted to turn his heroic act to its account as a defense to its own culpability. Hill v. Light Co., 260 Mo. 84; Wagner v. Ry. Co., 133 N.E. 437.

David E. Blair, J. Woodson, C. J., and Graves and White, JJ., concur; James T. Blair and Ragland, JJ., dissent; Walker, J., dissents in separate opinion filed.

OPINION

BLAIR

Action for damages for personal injuries caused by a wire of appellant which carried a dangerous current of electricity coming in contact with respondent and seriously injuring him. Trial below resulted in a verdict for respondent in the sum of $ 25,000. The trial court required a remittitur of $ 10,000. This was entered and judgment was rendered for $ 15,000. From such judgment an appeal was granted to this court, and the case fell to Division Two, where an opinion was handed down affirming said judgment. Upon dissent of one of the judges of that division and in response to appellant's motion to transfer, the case came to Court en Banc.

I. After the case was transferred here, respondent filed his motion to dismiss the appeal because of alleged fatal defects in the abstract filed by appellant, in that such abstract fails to show that the pleadings, verdict, judgment, motion for new trial, motion in arrest of judgment or bill of exceptions were filed in any court or in any cause, and that such abstract fails to show that a transcript of such judgment and the order granting an appeal therefrom were filed in this court. Said motion was taken with the case and is the first point for our consideration.

Said motion was filed October 9, 1923. On October 16, 1923 appellant filed its supplemental abstract of the record formally showing all the matters alleged not to have been properly shown by the original abstract. On October 30, 1923, respondent filed his motion to strike out such supplemental abstract of the record. The case was set for hearing and was heard on November 3, 1923.

Without considering the merits of respondent's objections to the original abstract, we think the alleged defects therein are cured by the timely filing of the supplemental abstract under the spirit, if not the letter, of the second paragraph of our Rule 11, said paragraph having been adopted as an amendment to our original Rule 11 on December 29, 1920.

If appellant is concluded by the state of the record shown by the abstract on file when the case was argued and submitted in Division Two, as respondent seems to contend, then, by the same reasoning, respondent should be held to have waived such defects because he did not make his objections to such abstract in Division Two within the time prescribed by said rule. However, upon re-hearing in a division or after transfer to Court en Banc, a case stands just as if it had not been previously heard and submitted. [Ricketts v. Hart, 150 Mo. l. c. 67; Fleisher Bros. v. Hinde, 122 Mo.App. l. c. 221.]

The motion to dismiss the appeal is overruled.

II. We have reached the conclusion upon the merits of the case that respondent cannot recover because of contributory negligence on his part. Such conclusion obviates the necessity of considering the different state of facts, which the evidence of appellant tended to show, or of considering other assignments of error alleged to have occurred during the progress of the trial.

We quote from the divisional opinion as follows:

"At about six o'clock p. m., August 15, 1919, a midsummer thunderstorm, accompanied by lightning, wind and rain occurred in Kansas City, which continued for more than an hour. The rain was heavy, the thunder and lightning frequent and the maximum velocity of the wind, which continued with decreasing fury until after seven o'clock P. M., was about forty-five miles per hour. During the storm the wire which produced the injury parted or was broken or burned in two midway between two supporting poles. One of the ends of the wire fell upon or near a sidewalk, where it emitted intermittent flashes of light. While it was lying there, the respondent, who was returning from his work at about seven o'clock P. M., during a lull in the storm, saw the live wire and avoiding it went to his apartments near at hand, procured a broom and returned to the scene. After looking over the situation, he reached out with the brush of the broom or that end which in hours of peace is most utilized by the housewife, and carefully pushed what he terms 'the loop of the...