Morton v. Southwestern Telegraph & Telephone Company
| Decision Date | 06 January 1920 |
| Docket Number | 20143,21431,21432 |
| Parties | AMANDA L. MORTON, Appellant, v. SOUTHWESTERN TELEGRAPH & TELEPHONE COMPANY et al. -- No. 20143. AMANDA L. MORTON, Appellant, v. SOUTHWESTERN TELEGRAPH & TELEPHONE COMPANY and UNION ELECTRIC LIGHT & POWER COMPANY. -- No. 21431. AMANDA L. MORTON v. HIRAM LLOYD BUILDING & CONSTRUCTION COMPANY, Appellant. -- No. 21432 |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Kent K. Koerner Judge.
Affirmed.
Safford & Marsalek for Amanda L. Morton.
(1) The undisputed evidence in this case showed that defendant Telephone Company permitted its wires to remain, unused, on the poles mentioned in evidence for a long time, at least two months; that one of the wires was broken eight days before the accident to plaintiff's husband, and the end coiled around one of the poles; the next day the broken end was seen, gathered in a bundle on the ground at the foot of the pole. A week before the accident this wire had sagged down past the power wires, between said pole and the next pole south so that its lowest point was about a foot above the reach of an ordinary man. The day before the accident it had sagged to within four feet of the ground. This wire was in close proximity to a road, much used by the employees of defendant Construction Company. At all times after it commenced to sag it was likely to touch the power wires on the same poles, and if a person came in contact with it, to convey the dangerous current from the power wires to him whether the power wires were properly insulated or not. Under these circumstances defendant Telephone Company was, as a matter of law, guilty of negligence in failing to remove its dangerous wire. Geisemann v. Elec. Co., 173 Mo. 678; Goodwin v. Telephone Co., 157 Mo.App. 607; Kribs v. L. & P. Co., 199 S.W. 261; Brubacker v. Elec Co., 130 Mo. App 439; Wilhite v. City, 167 Mo.App. 155; Mellican v. Elec. Co., 90 Mo.App. 595. (2) The undisputed evidence showed that when the power wires of defendant Power Company were moved from the broken pole mentioned in evidence to the new pole, about two weeks before the accident, the insulation on the power wires was left in an impaired condition where the wires had been fastened to the old pole; that eight days before the accident one of the telephone wires on the same line of poles was broken, and said uninsulated wire ran from the top of the new pole down to a point at or near the bottom, where it was coiled, or left in a bundle, so that it passed, in its course, within a short distance of the defective insulation on the power wires; that the telephone wire sagged between said pole and the next pole south, so that a week before the accident it was just out of the reach of an ordinary man, and the day before had come within four feet of the ground; that the telephone wire was likely to convey the dangerous current from the power wire to a person who came in contact with it whether the power wire was properly insulated or not. Under these circumstances defendant Power Company was guilty of negligence, as a matter of law, in failing to remove the telephone wire, in permitting its power wire to be without proper insulation, and in permitting its power wire to be and remain charged with a dangerous current of electricity. Kribs v. L. & P. Co., 199 S.W. 261; Brown v. Light Co., 137 Mo.App. 734; Brubacker v. Elec. Co., 130 Mo.App. 439; Harrison v. L. & P. Co., 195 Mo. 606. (3) The undisputed fact that plaintiff's husband came to his death by coming into contact with the electric current which escaped from defendant's wire is conclusive proof of the negligence of defendant Power Company. Geisemann v. Electric Co., 173 Mo. 678; Von Trebra v. Light Co., 209 Mo. 659; Clark v. R. Co., 234 Mo. 419. (4) Electricity is one of the most dangerous agencies ever discovered by human science, and the law requires that the highest degree of care be exercised in its use to prevent injury to others. Clark v. Ry. Co., 234 Mo. 423; Hill v. Electric Co., 260 Mo. 77; Von Trebra v. Light Co., 209 Mo. 648; Geisemann v. Electric Co., 173 Mo. 674. (5) Where the evidence is conflicting the court, on appeal, will not weigh it to determine whether or not the verdict is supported by the weight of the evidence; but where a verdict is not supported by substantial evidence it is the duty of the trial court to set it aside on motion, and upon its failure to do so the court, on appeal, will reverse the judgment. Ettlinger v. Kahn, 134 Mo. 497; Harper v. Railroad, 186 Mo.App. 308; Tibbe v. Kamp, 154 Mo. 585; Turner v. Anderson, 236 Mo. 545. (6) Where the court, on appeal, is satisfied that the verdict was rendered in disregard of the evidence, and the trial court in refusing a new trial has wrought a manifest injustice, the court will set aside the judgment and order a new trial. Whitsett v. Ransom, 79 Mo. 258; Spohn v. Railway Co., 87 Mo. 74; Garrett v. Greenwell, 92 Mo. 125; State v. Patrick, 107 Mo. 179; Southern, etc., Co. v. Surety Co., 207 S.W. 510.
Jeffries & Corum for Southwestern Telephone & Telegraph Company, D. A. Frank of counsel.
(1) There was no evidence offered by the defendant, yet the plaintiff's evidence was of such character that the jury was warranted in the finding from the facts before it that the Telephone Company did not, at the time of the accident, and theretofore, maintain a telephone wire on the poles, or that at the time of the accident, and that, theretofore, it could have discovered the danger by the use of ordinary care. The jury is entitled to draw more than one inference or inferences from the evidence adduced. (a) The jury's finding in this respect is binding upon this court and cannot be disturbed. Kennett v. Constr. Co., 273 Mo. 299; Moore v. Railroad, 268 Mo. 34; In re Lankford Estate, 272 Mo. 1. (b) Whether or not the Telephone Company in this particular case was guilty of negligence is a question for the jury. 15 Cyc. 480; Jones on Tel. & Tel. Companies, 662; Brubaker v. K. C. Elec. L. Co., 130 Mo.App. 439; Block v. Milwaukee Street Ry. Co., 89 Wis. 371, 27 L.R.A. 365; Goodwin v. Telephone Co., 157 Mo.App. 606. (2) The plaintiff cannot now charge that the Telephone Company was negligent in failing to use the highest degree of care when the case was submitted to the jury on the question of ordinary care. Plaintiff is bound before this court to rely upon the theory relied on at the trial. 3 Corpus Juris, 718; Glaser v. Rothschild, 106 Mo.App. 429; Taylor & Sons Brick Co. v. Railroad Co., 213 Mo. 728; Walker v. Railroad, 193 Mo. 483; Williams v. Santa Fe, 233 Mo. 666; Grimes v. Cole, 133 Mo.App. 526. (3) There is no evidence that the Telephone Company was negligent. Strack v. Telephone Company, 216 Mo. 601.
Jourdan, Rassieur & Pierce for Union Electric Light & Power Company.
(1) (a) The jury's finding in favor of the Power Company is binding on this court and should not be disturbed. (b) The mere presence of an uninsulated wire followed by death or injury caused by escaping current, does not give rise to indisputable proof of actionable negligence on the part of the owner of the wire as the cause of the death or injury. (c) In overruling the plaintiff's motion for a new trial in the cause at bar, the trial court did not abuse its discretion, for reasonable men could have drawn more than one inference from the testimony adduced. (d) The mere fact that this defendant's wire may have been uninsulated and plaintiff's husband met his death from the escaping current, does not make out a case of liability against this defendant, where an independent act or agency of some third party intervened and thereby caused the death. This independent act or agency intervening is in law regarded as the proximate cause. This defendant could not be liable for such unless it could have been reasonably anticipated. Brubaker v. Electric Light Co., 130 Mo.App. 446; Luehrman v. Laclede Gas Light Co., 127 Mo.App. 213; McMullen v. Edison Electric, 34 N.Y.S. 248, 13 Misc. 392; Brush Electric Co. v. Lafevre, 93 Tex. 604; Blackburn v. Railroad Co., 180 Mo.App. 548; Freeman v. Brooklyn Heights Railroad, 66 N.Y.S. 1052; 9 Ruling Case Law, 1213, sec. 21. (e) The testimony in this case is overwhelming that Morton met his death as the result of an intervening act of the Construction Company in breaking down the telephone wire and allowing it to sag where it would likely come in contact with persons upon the ground, and that this defendant had no knowledge of this condition and that the condition had existed only a few hours before Morton's death.
Jones, Hocker, Sullivan & Angert for Hiram Lloyd Building and Construction Company.
(1) The demurrer to the evidence offered by the Construction Company should have been sustained. The petition charged joint acts of negligence on the part of all three defendants, and there was no evidence whatever of this defendant's participation in the proximate cause of the deceased's death. There was particularly no evidence whatever of negligence on the part of this appellant. It is not negligence not to take precautionary measures to prevent an injury, which, if taken, would have prevented it, when the injuries could not reasonably have been anticipated and would not, unless under exceptional circumstances, have happened. American Brewing Assn. v. Talbot, 141 Mo. 683; Stanley v. Union Depot Ry. Co., 114 Mo. 623; Brubaker v. Electric Light Co., 130 Mo.App. 449. (2) The court erred in admitting in evidence the evidence of the actuary, George Graham, since the tables from which he testified were based upon conditions different from those which the plaintiff and deceased had. This testimony furthermore was particularly incompetent with respect to the expectancy of the plaintiff. 17 Corpus...
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