Piculjan v. Union Electric Light & Power Company
| Decision Date | 08 November 1921 |
| Citation | 234 S.W. 1006,208 Mo.App. 331 |
| Parties | MARGARETTA PICULJAN, Respondent, v. UNION ELECTRIC LIGHT & POWER COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of St. Louis County.--Hon. G. A Wurdeman, Judge.
REVERSED.
Judgment reversed.
A. E L. Gardner and John H. Drabelle for appellant.
(1) Trees in the street belong to the abutting owner where he is the owner of the fee. Walker v. City of Sedalia, 74 Mo.App. 70; McAntire v. Joplin Telephone Co., 75 Mo.App. 439; Webb v. Strobach, 143 Mo.App. 473; Cartwright v. Bell Telephone Co., 205 Mo. 126; Ashurst v. Lohoefner, 170 Mo.App. 331; 37 Cyc. 203; 28 Cyc. 848, 446. (2) The abutting owner may remove the trees at his pleasure and is liable for injuries resulting from his allowing such trees to become dangerous. 28 Cyc. 848, 1446; Weller v. McCormick, 52 N.J. Law 470. (3) Real estate granted to husband and wife creates an estate by the entirety. Sec. 2273, R. S. 1919.
John E Mooney and George Barnett for respondent.
(1) The court properly overruled plaintiff's demurrer to the evidence and submitted the case to the jury. The defendant had the possession of the tree in question, had adopted the same as a part of its system of poles and wires, and it was, therefore, its duty to maintain the tree in a reasonably safe condition. Eads v. Galt, 199 S.W. 710; Nagel v. Mo. P. R. R. Co., 75 Mo. 653; Lottman v. Barnett, 62 Mo. 150; 29 Cyc., p. 476. (2) It was the duty of appellant to keep dead limbs which were likely to break and injure persons trimmed off the tree. The appellant was in possession of the tree and was using the same as a substitute for a pole, and it was plainly its duty to keep the tree in a reasonably safe condition. Even though the tree may have been in the possession of appellant with the tacit consent and acquiescence of respondent, and without reference to whether the possession of the appellant was that of a tenant by sufferance or at will, or was the possession of a mere licensee, still it was appellant's duty to keep the tree in a reasonably safe condition. Eads v. Galt, 199 S.W. 710, supra; 29 Cyc., 476, supra. (3) The appellant will be estopped to claim that it had no right to keep the tree in a reasonably safe condition. The defendant took possession of the tree in such a manner that it excluded the possession of all other persons. It was not incumbent upon this plaintiff to climb among live wires, trim off dead branches from the tree, nor could she reasonably be expected to cut a tree down, thereby permitting the entire system of live wires to fall to the street. When appellant took possession of this tree for the purposes of its business, it assumed the legal obligation of keeping the tree in a reasonably safe condition. Defendant will not be permitted to enjoy all the benefits to be derived from the possession and use of the tree and escape all legal responsibility incident to such use and possession. (4) Even if appellant's contention were correct that the respondent was the technical owner of this tree, it does not follow that respondent would have been entitled to revoke the appellant's right to use the tree. Without reference to whether appellant was a licensee under an expressed contract, or merely with the tacit consent and acquiescence of respondent, the right to continue the use and control of the tree remained in appellant. Lashley Telephone Company v. Durbin, 228 S.W. 423.
This is an action for damages for personal injuries alleged to have been received by plaintiff while in the hallway of her residence, located in St. Louis County, Missouri, the injury being caused, by a limb falling from a tree to which certain guy wires of the defendant company were attached.
The petition alleges that the defendant corporation is engaged in furnishing electric light and power, and that it maintained upon Hummelsheim avenue, a public highway in St. Louis County, poles and wires to distribute electric current; that it had placed a wooden beam in the forks of a tree located in said road near the property line of the plaintiff to support certain guy wires and used said tree to support the guy wires in connection with its line of poles; that the wooden beam in the forks of the tree caused the tree to die and the limbs to become decayed; that plaintiff in November, 1917, was severely and permanently injured while in her home by a dead branch of said tree falling against the door of her residence and causing the door to strike her.
The petition alleges negligence of the defendant in attaching the wires to the tree so as to cause the tree to die, and in failing to cut off the dead branches as they occurred. And, "that defendant herein was negligent in failing to trim and cut off said deadened and decayed limbs from said tree at a time when said defendant was using said tree as a part of its system of poles and wires, and was using said tree as a support for its wires, and when defendant either knew, or by the exercise of ordinary care would have known, that said tree and the branches and limbs thereon were dead and likely at any time to break and fall, and when defendant either knew or by the exercise of ordinary care would have known, that said tree was in a public highway and in close proximity to the said residence of plaintiff and said Peter Piculjan, and that said deadened and decayed branches and limbs were likely at any time to break and fall and injure persons and property in the immediate vicinity of said tree."
Defendant demurred to the petition, which being overruled, was followed by answer which admits, among other matters, the public character of the road, the location of the tree, the use of same by guy wires as described in the petition; and, answered further, as follows:
"Defendant, further answering plaintiff's said petition, states that the tree described in plaintiff's petition was the property, by reason of her title to the adjacent premises, of the plaintiff Margaretta Piculjan, and is the owner of said tree as aforesaid, it became and was the duty of the said plaintiff herein to maintain said tree in a reasonably safe condition, and defendant states that the injuries, if any, sustained by the plaintiff in the manner and at the time set forth in her said petition were the result of plaintiff's own negligence in failing to keep said tree in a reasonably safe condition."
The answer further denied that the guy wire or the manner of its attachment to the tree interfered with the rights and duties of the owner to have and take possession of same, or keep and maintain the same or its branches in a safe condition. The answer included a general denial. To this, plaintiff replied by general denial.
The case was tried by the court and jury, resulting in a verdict of $ 1,000 for the plaintiff. After appropriate motions defendant appealed.
The facts, when skeletonized from the record, are as follows Plaintiff while scrubbing the floor of a room in her residence fell over a bucket of water which was being used by her at the time, the fall resulting from an outside door of her home suddenly opening and striking her. She and other witnesses testified that a limb from a deadened tree on the sidewalk line next to her property in Hummelsheim avenue fell from a cause unknown against the door. It appears that the defendant company at the time and for some time prior thereto had a...
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