Poumeroule v. Postal Telegraph Cable Co.

• Decision Date: 09 December 1912
• Citation: 152 S.W. 114,167 Mo. App. 533
• Parties: POUMEROULE v. POSTAL TELEGRAPH CABLE CO.
• Court: Missouri Court of Appeals

152 S.W. 114

167 Mo. A. 533

POUMEROULE v. POSTAL TELEGRAPH CABLE CO.

Kansas City Court of Appeals. Missouri.

December 9, 1912.

Rehearing Denied December 31, 1912.

1. TELEGRAPHS AND TELEPHONES (§ 15) — MAINTENANCE OF LINE — CARE REQUIRED.

A telegraph company maintaining its line in a public street must use reasonable care to construct and maintain it in a manner reasonably safe to travelers, and, where the line is on a busy street, it must anticipate the likelihood of pedestrians crossing the street, and that an unguarded guy wire may prove dangerous at night.

2. TELEGRAPHS AND TELEPHONES (§ 20) — MAINTENANCE OF LINES — NEGLIGENCE — QUESTION FOR JURY.

Whether a telegraph company maintaining a line in a public street was guilty of negligence in maintaining unguarded guy wires in the street held, under the evidence, for the jury.

3. TELEGRAPHS AND TELEPHONES (§ 20) — MAINTENANCE OF LINES — NEGLIGENCE — QUESTION FOR JURY.

Whether a pedestrian injured by coming in contact with unguarded guy wires maintained by a telegraph company in a street was guilty of contributory negligence held, under the evidence for the jury.

4. TELEGRAPHS AND TELEPHONES (§ 20) — MAINTENANCE OF LINES — NEGLIGENCE.

Whether the injuries complained of by a pedestrian coming in contact with an unguarded guy wire of a telegraph company maintaining a line in a street were caused by her coming in contact with the wire held, under the evidence, for the jury.

5. NEGLIGENCE (§ 134) — CAUSE OF INJURIES — EVIDENCE.

Where an injury may have resulted from two or more causes, for one of which alone defendant is liable, plaintiff suing for the injury must show with reasonable certainty that the cause for which defendant was liable produced the injury.

6. EVIDENCE (§ 570) — EXPERT EVIDENCE — QUESTION FOR JURY.

Expert evidence is at best only advisory, and the jury may reject all expert testimony where the facts established are such as to induce a reasonable conclusion among men of common sense and experience that the expert testimony is not true.

7. TRIAL (§ 76) — EVIDENCE — OBJECTIONS — TIME TO MAKE.

An objection to a question asked a witness must be interposed before answer, or the ruling thereon will not be reviewed.

8. EVIDENCE (§ 128) — PHYSICIAN AND PATIENT — TESTIMONY OF PHYSICIAN — COMPETENCY.

A physician called as a witness by his patient suing for a personal injury may testify as to the present symptoms of his patient, and repeat the statements of the patient to him as to such symptoms, but may not repeat the history of the case given by the patient during the examination made by him.

9. APPEAL AND ERROR (§ 1050) — ADMISSION OF EVIDENCE — HARMLESS ERROR.

Where the evidence was conflicting as to the cause of plaintiff's injuries, the error in permitting her physician to repeat the history of the case given by the patient during his examination was prejudicial.

Appeal from Circuit Court, Buchanan County; Wm. D. Rusk, Judge.

Action by Sarah Poumeroule against the Postal Telegraph Cable Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Gage, Ladd & Small, of Kansas City, for appellant. Charles H. Mayer, of St. Joseph, for respondent.

JOHNSON, J.

This is an action to recover damages for personal injuries plaintiff alleges were caused by negligence of defendant. The injury occurred at 8 o'clock p. m. March 6, 1907, near the intersection of King Hill and Kansas avenues in South St. Joseph. King Hill avenue runs north and south and is the main thoroughfare connecting South St. Joseph with the old and main part of the city. It is paved and is crossed by Kansas avenue, which at this intersection makes a jog; the eastern prolongation being some distance south of the street west of King Hill avenue. North-bound cars running on King Hill avenue have a regular stopping place at the northwest corner of the intersection of the eastern extension of Kansas avenue and King Hill avenue, and this point is southeast of the southwest corner of the intersection of the westward portion of Kansas avenue. Defendant maintained a telegraph line on King Hill avenue, and one of the guy poles of this line was at a point in the sidewalk on the west side of the street about nine feet south of the southwest corner of the street intersection and just inside the curb line. The top of the pole leaned southward, and two guy wires designed to hold the pole in position ran from its top to an anchor sunk in the sidewalk about five feet south of the base of the pole. These wires were not incased, and plaintiff was injured by colliding with them. Accompanied by her son, she had come from her home eastward on Kansas avenue and had crossed to the east side of King Hill avenue to the stopping place for north-bound cars, intending to board a car for North St. Joseph. While waiting for a car she discovered that her son had forgotten a package he intended to take with him. She started back to get it, leaving her son to await her return. She took the most direct course and stepped onto the sidewalk on the west side of King Hill avenue at a point a few feet south of the guy pole we have described. Ignorant of the presence of the guy wires, and not being able to see them on account of the darkness, she collided with them, and one of them struck her across the breast with enough force to make her reel backward and almost lose her balance. Attracted by her cry, her son came to her assistance, and together they ascertained that the obstruction to her way was the unsheathed guy wires. Not realizing that she had been injured by the blow on her breast, she went home, obtained the package, and returned. She and her son then boarded the first car that came along and went to North St. Joseph, where they spent the evening at a social entertainment. Plai...