Mummaw v. Southwestern Telegraph & Telephone Co.

• Decision Date: 11 November 1918
• Docket Number: No. 12532.,12532.
• Citation: 208 S.W. 476
• Parties: MUMMAW v. SOUTHWESTERN TELEGRAPH & TELEPHONE CO.
• Court: Missouri Court of Appeals

208 S.W. 476

MUMMAW v. SOUTHWESTERN TELEGRAPH & TELEPHONE CO.

No. 12532.

Kansas City Court of Appeals. Missouri.

November 11, 1918.

Appeal from Circuit Court, Adair County; J. A. Cooley, Judge.

"Not to be officially published."

Action by Glenn H. Mummaw against the southwestern Telegraph & Telephone Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Higbee & Mills, of Kirksville, and D. A. Frank, of St. Louis, for appellant.

Campbell & Ellison and Weatherby & Frank, all of Kirksville, for respondent.

BLAND, J.

This is a suit for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $500, and defendant has appealed.

The evidence shows that on the evening of May 10, 1916, plaintiff was standing in a public alley, in the city of Kirksville, Mo., watching a fire consume a wooden barn. Defendant maintained a line of telephone poles and wires near the barn and through the alley mentioned. The wires consisted of cables suspended on a messenger wire attached to the poles. During the progress of the fire the wires were burned, causing an adjacent pole to break and fall upon plaintiff, to his injury.

The negligence alleged in plaintiff's petition was that the defendant allowed the pole that fell upon plaintiff to become and remain rotten and decayed so that it broke and fell. The evidence shows that the pole was in a rotten and decayed condition that was easily discoverable; that it would not have fallen when the wires parted if it had been a reasonably sound pole. The evidence further shows that the pole would not have fallen had the cable remained intact. Under these circumstances defendant contends that the burning of the wires, suddenly putting an extreme strain (5,000 pounds) on the Dole and causing the pole to fall, was the proximate cause of the accident.

The question of proximate cause is usually one for the jury, but often it becomes a matter of law for the court. In passing upon the question in the present case some light will be thrown upon it by setting forth a few of the rules laid down in reference to the matter. It is stated by a well-recognized authority in discussing proximate cause that

"It is universally agreed that, if the damage is caused by the concurring force of the defendant's negligence and some other cause for which he is not responsible, including the `act of God' or superior human force directly intervening, the defendant is nevertheless responsible, if his negligence is one of the proximate causes of the damage, within the definition already given. It is also agreed that, if the negligence of the defendant concurs with the other cause of the injury, in point of time and place, or otherwise so directly contributes to the plaintiff's damage that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable, notwithstanding he may not have anticipated or been bound to anticipate the interference of the superior force which, concurring with his own negligence, produced the damage. But if the superior force would have produced the same damage, whether the defendant had been negligent or not, his negligence is not deemed the cause of the injury." 1 Shearman & Redfield on the Law of Negligence (6th Ed.) par. 39, p. 76.

The rule as stated above is the law in this state. Daneschocky v. Sieble, 195 Mo. App. 470, 193 S. W. 966; Benton v. St. Louis, 248 Mo. 98, 154 S. W. 473; McDermott v. Ry. Co., 87 Mo. loc. cit. 302; Schmidt v. St. Louis Transit Co., 140 Mo. App. 182, 120 S.W. 96. And it is held in the case of Benton v. St. Louis, supra, 248 Mo. loc. cit. 110, 154 S. W. 477, citing numerous authorities in this state, that —

"In cases of negligence, liability does not hinge on whether, by the exercise of reasonable prudence, the very injury complained of ought to have been foreseen. The party charged may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission."

Defendant insists that it could not have reasonably anticipated that the wires would part under the circumstances, and for that reason it was under no obligation to maintain the post in any better condition than was required for it to stand had the wires not parted (the evidence, as before stated, being that the pole would not have fallen if the wires had not parted). It was not necessary to show that defendant could have foreseen everything that intervened to cause the falling of the pole. In other words, it was not necessary to show that defendant could have anticipated the probability that the wires would have been injured so that they parted by reason of their proximity to a possible fire....