Riley v. City of Independence

• Decision Date: 02 June 1914
• Docket Number: No. 16712.,16712.
• Parties: RILEY v. CITY OF INDEPENDENCE.
• Court: Missouri Supreme Court

167 S.W. 1022

258 Mo. 671

RILEY v. CITY OF INDEPENDENCE.

No. 16712.

Supreme Court of Missouri, Division No. 1.

June 2, 1914.

1. MASTER AND SERVANT (§§ 285, 286)—ACTIONS FOR INJURIES—QUESTIONS FOR JURY.

In an action for injuries to an employé in a municipal electric light plant caused by an electric shock, evidence held to make a question for the jury as to whether a switch was negligently constructed and maintained, and whether the accident was due to such negligence.

2. MUNICIPAL CORPORATIONS (§ 733)—INJURIES TO EMPLOYÉ—LIABILITY.

A city operating an electric light plant assumes the same responsibilities to its employés injured therein as private persons and private corporations running similar plants.

3. EVIDENCE (§ 145)—MATERIALITY—REMOTENESS.

In an action for injuries to an employé in an electric light plant, it appeared that a block in a switch box fastening the terminal wires had been taken off and nailed back shortly before the accident, that, from the time of the accident until an examination of the switch box two weeks later, the front of the switch seemed charged with electricity, and that, when the block with the brads or nails holding it were removed at the time of such examination, the difficulty did not again appear. It was plaintiff's theory that the electric current jumped from a terminal wire to one of the brads, and from the brad to an iron band, through which it reached the handle of the switch. Held, that testimony that at the time of such examination of the switch box one of the brads looked as though it had "het" and burned off or grounded was properly admitted; the lapse of time being a matter for the jury, and not depriving the testimony of probative force.

4. EVIDENCE (§ 508)—OPINION EVIDENCE— SUBJECTS OF EXPERT TESTIMONY.

In an action for injuries from an electric shock, an expert electrician was properly permitted to testify as to the distance that a nail would have to be from an iron band for an electric current to pass from one to the other.

5. EVIDENCE (§ 553)—OPINION EVIDENCE— STATEMENT OF FACTS.

That a question asked an expert witness did not state all of the facts was immaterial, where it was one of a series of questions, and the other facts were given in other questions.

6. DAMAGES (§ 216)—MEASURE OF DAMAGES— INSTRUCTIONS.

In an action for personal injuries, an instruction that, in estimating the amount of damages, the jury should consider the injuries sustained and the physical pain suffered at the time of and since such injuries, and that if, by reason of such injuries, plaintiff was permanently deprived in part of the use of his hands, they should, taking into consideration his age, consider the extent to which his future earning capacity had been reduced by reason of such injuries, and find a verdict for such sum as under the evidence would reasonably compensate him for the injuries, was not erroneous.

7. TRIAL (§ 251)—ACTIONS FOR INJURIES—INSTRUCTIONS —CONFORMITY TO PLEADINGS.

Where the petition in an action for personal injuries alleged specific acts of negligence in connection with an electric switch, an instruction that, if it was plaintiff's duty, in the course of his employment by defendant, to throw a certain switch, it was defendant's duty to so insulate and construct the switch as to make it reasonably safe for plaintiff to throw it, and that, if defendant negligently failed to so construct and insulate it, and if the defective condition thereof was known to defendant, or could have been known had it exercised reasonable care in the construction and inspection thereof, and if, by reason of such failure, plaintiff undertook to throw the switch, and a current of electricity passed into his body, inflicting the injuries complained of, to find for plaintiff, was too general in its terms, since, where plaintiff relies upon specific acts of negligence, he must recover, if at all, upon those acts, and the instructions should not be broader than the pleadings.

8. TRIAL (§ 250)—INSTRUCTIONS—CONFORMITY TO PLEADINGS AND PROOF.

The instructions must be within both the proof and the pleadings, and must not be broader than the proof, though the pleadings would justify broader instructions.

9. APPEAL AND ERROR (§ 1066)—HARMLESS ERROR—INSTRUCTIONS.

In an action for personal injuries, an instruction which was too general because it did not restrict a recovery to the specific acts of negligence pleaded was harmless, where there was no evidence of any negligent acts except those pleaded.

10. TRIAL (§ 252)—INJURIES TO EMPLOYÉ— ACTIONS—INSTRUCTIONS—CONFORMITY TO EVIDENCE.

In an action for injuries to an employé in an electric light plant caused by an electric shock, an instruction that, if an electric switch, its appliances, bearings, and equipments were reasonably safe and secure at or about 7 p. m. of the day before the injury, and thereafter became out of repair, causing parts of the switch to be charged with electricity, and if plaintiff was injured by contact with the charged part of the switch, he could not recover, unless defendant knew that the switch, its bearings, appliances, and attachments were out of repair, or by the exercise of reasonable care might have known thereof, in time to repair them before the injury, was properly refused, where all of the evidence, instead of showing that the switch was safe at 7 p. m., showed that whatever defect there was in the switch was there prior to that hour.

11. DAMAGES (§ 132)—EXCESSIVENESS—PERSONAL INJURIES.

Where a young man earning $65 a month firing a boiler and running an engine in an electric light plant received an electric shock, by which he practically lost the use of both hands, and the tendons and muscles were permanently burned and destroyed, a verdict for $10,000 was not excessive.

Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge.

Action by Sylvanus Arthur Riley against the City of Independence. From a judgment for plaintiff, defendant appeals. Affirmed.

Instruction No. 2 was as follows:

The court instructs the jury that, if you find for the plaintiff, you should, in estimating the amount of his damages, take into consideration the injuries which he has sustained, if any, from the accident complained of and the physical pain, if any, suffered by him on account of his injuries at the time of and since such injuries. And if you further find that, by reason of said injuries, plaintiff has been permanently deprived, in part, of the use of his hands, then, taking into consideration the age of the plaintiff, you should consider the extent to which his future earning capacity has been reduced, if you find such earning capacity has been reduced by reason of said injuries, and you will find a verdict for such sum as will, in your judgment, under the evidence, reasonably compensate him for such injuries, not exceeding the sum of $30,000.

J. F. Thice, of Independence, and W. S. Flournoy, of Kansas City, for appellant. John W. Clements and Paxton & Rose, all of Independence, for respondent.

GRAVES, J.

The city of Independence is the owner of a municipal light plant. For something over two years the plaintiff had been one of its employés, and had charge of this light plant at night. Plaintiff was not an expert electrician; but his duties were to fire the boiler and run the engine at night. He was so engaged August 18, 1909. There were three engines, and, as the use of lights in the city decreased toward the morning hours, the plaintiff's duty was to switch the thus lightened load from the larger to the smaller engine. In so doing, at about 1 a. m. of August 18, 1909, he received a shock and was fearfully burned in an about his hands and other portions of the body. For the damages thus arising, he sued the city, and in his petition charges negligence in this language:

"About 1 o'clock a. m. on the said 18th day of August, plaintiff was alone in said electric light plant, and in the discharge of his duties as such engineer undertook to throw a switch transferring the arc light from the larger to the smaller engine. To do this, plaintiff had to take hold of a switch which controlled the lamps on the arc circuit. When he touched the handle of the switch for the purpose of transferring the load to the other engine, he received a powerful shock which passed through his body, and plaintiff knew no more until about half an hour later he became conscious and found himself suffering greatly from severe burns on both hands and wrists and both arms, and upon one hip. Plaintiff says that said current of electricity passed through said switch and into his body because of the negligence of defendant in the following particulars, to wit:

"The switch handle furnished by defendant to be taken hold of by plaintiff was defective, and not properly insulated, the same being an ordinary shovel handle, with much iron exposed, and no insulation thereon, and to said shovel handle, without insulation, was attached an iron pointer which rested between and touched iron guides above. Said iron guides were attached to an iron plate which rested against an upright marble slab. This plate was not bolted to the marble slab, but was held in place by iron bolts which passed through the slab and connected with an iron frame which went around a wooden box which formed part of the switch and contained the electric connections of the same. This construction was negligent and defective because, if an electric current passed into the said iron frame, then such current would pass from such iron frame through the said bolts attaching it to the said iron plate, and, if such iron plate or any of the guides upon it were then touched by said metal pointer, the current would pass into the body of any one who touched the metal on said switch handle, and there was always danger that a current might escape from the live parts of the switch or its connections into the said iron frame. The distance between the said iron frame and...