Rose v. Missouri Dist. Telegraph Co.

• Decision Date: 17 November 1931
• Citation: 43 S.W.2d 562,328 Mo. 1009
• Parties: Lester B. Rose v. Missouri District Telegraph Company, Appellant. Lester B. Rose v. Southwestern Bell Telephone Company, Appellant. Lester B. Rose v. Union Electric Light & Power Company, Appellant
• Court: Missouri Supreme Court

43 S.W.2d 562

328 Mo. 1009

Lester B. Rose v. Missouri District Telegraph Company, Appellant. Lester B. Rose v. Southwestern Bell Telephone Company, Appellant. Lester B. Rose v. Union Electric Light & Power Company, Appellant

Supreme Court of Missouri

November 17, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.

Affirmed (upon condition).

Jones Hocker, Sullivan & Angert and Ralph T. Finley for appellant Missouri District Telegraph Company Francis R. Stark of counsel.

(1) The instructions in the nature of a demurrer to the evidence offered by the telegraph company at the close of plaintiff's case in chief and again at the close of all the evidence, should have been given. (a) In view of the nature of the plaintiff's work, and the casual and momentary use of the pole, the telephone pole in question cannot be considered as a place to work, within the meaning of the rule requiring the master to use reasonable care to furnish the plaintiff with a reasonably safe place to work. Dixon v. Western Union Tel. Co., 68 F. 633; Garfield v. Tel. Co., 100 A. 763; Huskey v. Boiler Co., 192 Mo.App. 374; Stone v. Ry. Co., 293 S.W. 370; Sias v. Lighting Co., 50 A. 555. (b) Under the evidence, including the written lease, the pole and cross-arm in question were not owned by or under the control of the telegraph company, and there was no duty on the part of said company to inspect or repair the same; consequently, there was no breach of duty to the plaintiff in that respect. 39 C. J. 333, 422; Lingren v. Boiler Mfg. Co., 112 Minn. 186, 127 N.W. 626; Foster v. Conrad, 261 F. 603; Rooney v. Railroad, 208 Mass. 106, 94 N.E. 288; Case Note, 27 Am. & Eng. Ann. Cases, 796, 798. The case should be governed by the familiar principle that applies to landlord and tenant, where a tenant's liability must be measured by his control and right to repair. 36 C. J. 246, 247; Dierkes v. Dry Goods Co., 210 Mo.App. 149; Andrus v. Bradley-Alderson Co., 117 Mo.App. 322; McGinley v. Alliance Trust Co., 168 Mo. 257; Marcheck v. Klute, 133 Mo.App. 280; Bender v. Weber, 250 Mo. 563. (c) The evidence conclusively shows that the plaintiff assumed the risk of his injuries. Britton v. Telephone Co., 131 F. 845; Roberts v. Telephone Co., 166 Mo. 382; Livengood v. Lead & Zinc Co., 179 Mo. 239; Knorpp v. Wagner, 195 Mo. 663; Hulse v. Telephone Co., 164 Mo.App. 131; Wray v. Light & Power Co., 68 Mo.App. 388; Watson v. Lime Co., 290 S.W. (Mo. App.) 651; Consolidated Gas, Electric Light & Power Co. v. Chambers, 75 A. 241, 26 L. R. A. (N. S.) 509; McIsaac v. Electric Lighting Co., 51 N. E. (Mass.) 525; McGorty v. Telegraph Co., 38 A. 361; Sias v. Lighting Co., 50 A. 555; Dixon v. Western Union Tel. Co., 71 F. 144; Corby v. Telephone Co., 231 Mo. 436. (d) The evidence shows that the plaintiff was guilty of contributory negligence as a matter of law. Roberts v. Telephone Co., 166 Mo. 380; Flood v. Western Union Telegraph Co., 131 N.Y. 604; Bergin v. Telephone Co., 70 Conn. 54, 38 A. 890; Southern Bell Tel. Co. v. Starnes, 50 S. E. (Ga.) 344; Doerr v. Brewing Assn., 176 Mo. 556; Junior v. Light & Power Co., 127 Mo. 84; Shelton v. Light, Power & Ice Co., 258 Mo. 534; Cash v. Sonken-Calamba Co., 17 S.W.2d 931 (Mo.) . (2) The verdict is grossly excessive, and implies passion and prejudice on the part of the jury. Bond v. Ry. Co., 315 Mo. 1005, 288 S.W. 784; McQuary v. Railway Co., 306 Mo. 713, 269 S.W. 610; Jones v. Railway Co., 287 Mo. 79; Brock v. Railroad, 305 Mo. 528; Richardson v. Railway Co., 288 Mo. 271; Trowbridge v. Fleming, 269 S.W. 617.

J. A. Waechter, W. F. Coyle, E. J. Bean and J. W. Jamison for appellant Southwestern Bell Telephone Company.

(1) Plaintiff's petition charged the telegraph company and the light company with specific acts of negligence which nullified the general averments of negligence against the telephone company. Hoffman v. Motorbus Co., 288 S.W. 949; McManamee v. Ry. Co., 135 Mo. 447. (2) Plaintiff, in his cross-examination, confessed himself to be guilty of contributory negligence which barred his recovery. Boesel v. Wells-Fargo & Co., 260 Mo. 463; Cash v. Sonken-Calamba Co., 17 S.W.2d 929; Shelton v. Light, Power & Ice Co., 258 Mo. 534; Consolidated Gas & Electric Co. v. Chambers, 26 L. R. A. (N. S.) 511. (3) In going upon the pole from which he fell plaintiff was an invitee of the telegraph company, but not of the telephone company, and the telephone company owed him no further duty than to maintain a sound pole. Cash v. Sonken-Calamba Co., 17 S.W.2d 929; Vogt v. Wurmb, 318 Mo. 475, 300 S.W. 279; Aaron v. Tel. Co., 114 P. 211; San Antonio Edison Co. v. Dixon, 42 S.W. 1009; Kohnle v. Paxton, 268 Mo. 480; Meade v. Montrose, 173 Mo.App. 725; Geer v. Tel. & Telep. Co., 129 N.Y.S. 787; New York & New Jersey Tel. Co. v. Speicher, 39 A. 662 (affirmed 41 A. 1116); Roddy v. Railroad, 104 Mo. 249. (4) It was not alleged in plaintiff's petition, nor proved, that by the terms of the agreements or leases entered into by and between the telephone company and its codefendants that the telephone company had in anywise reserved control over the lessee companies in their use of the pole or of their facilities thereon, and the law does not raise any obligation upon the part of the telephone company to inspect or control the facilities of the other companies on the pole. Roman v. King, 202 S.W. 592. (5) The instructions given by the court, when considered as a whole, are defective for the reason that the jury was thereby authorized to assess damages against the defendants upon a mere finding for plaintiff upon the issue of contributory negligence, without requiring any finding as to the negligence of defendants. This narrowed the issues. Crews v. Lackland, 67 Mo. 622; Wright v. Fonda & Higgins, 44 Mo.App. 642; State ex rel. Kaufman v. Sitlington, 51 Mo.App. 256. (6) The verdict is so excessive as to shock the judicial conscience and is clearly the result of passion, partiality or prejudice on the part of the jury, and this court, in the exercise of its inherent power, should reverse the judgment. Bond v. Ry. Co., 315 Mo. 987, 288 S.W. 785; Trowbridge v. Fleming, 269 S.W. 617; Lessenden v. Railroad, 238 Mo. 267; McQuary v. Railway Co., 306 Mo. 714, 269 S.W. 610; Crockett v. Railway Co., 243 S.W. 909; Jones v. Railway Co., 287 Mo. 79; Hart v. Railway Co., 264 S.W. 907; Richardson v. Railway Co., 288 Mo. 271; Brock v. Railroad, 305 Mo. 528; Foster v. Davis, 252 S.W. 434; Varley v. Taxicab Co., 240 S.W. 218.

Rassieur & Goodwin for appellant Union Electric Light & Power Company.

(1) Defendant Union Electric Light & Power Company's peremptory instruction in the nature of a demurrer to the evidence, offered at the close of all the evidence, should have been given. (a) There was a failure of proof as to said defendant, in that the evidence failed to show that said defendant owned the cross-arm which fell with the plaintiff or was charged with any duty as to the maintenance thereof. Motsch v. Standard Oil Co., 223 S.W. 677; Klebe v. Distilling Co., 207 Mo. 480, 13 L. R. A. (N. S.) 140; Kirkpatrick v. Street Ry. Co., 211 Mo. 68; Beave v. Ry. Co., 212 Mo. 331; Rassmussen v. Meilinger, 207 Ill.App. 21. (b) The evidence of this appellant affirmatively shows that the cross-arm in question was not the cross-arm of this appellant, and assuming that plaintiff's evidence raised a presumption of ownership in this appellant (which it did not), that presumption disappears in the light of the facts adduced showing that the arm did not belong to this appellant. State ex rel. v. Cox, 298 Mo. 427; Guthrie v. Holmes, 272 Mo. 215; Phillips v. Travelers Ins. Co., 288 Mo. 175, 231 S.W. 947; Hays v. Hogan, 273 Mo. 1, 200 S.W. 286, L. R. A. 1918C 715, Ann. Cas. 1918E 1127; Glassman v. Harry, 182 Mo.App. 306. (c) Plaintiff's own evidence shows that he was guilty of contributory negligence as a matter of law in attempting to lift his weight by means of this cross-arm when he saw, and therefore had notice of, its unsafe and insecure condition, and failed to make adequate tests to reveal the defect in the through bolt. (d) Before this appellant can be held it must be presumed (1) that the application for "a wire permit" carried with it a right to put a cross-arm on the sixth gain of the pole; (2) that this appellant did put a cross-arm on the sixth gain of the pole, and (3) that the cross-arm so placed on said gain by this appellant was there maintained until the accident in which respondent was injured, thus piling inference upon inference and causing one presumption to give rise to another presumption. State ex rel. v. Cox, 298 Mo. 427; Guthrie v. Holmes, 272 Mo. 215; Phillips v. Travelers Ins. Co., 288 Mo. 175, 231 S.W. 947; Hays v. Hogan, 273 Mo. 1, 200 S.W. 286, L. R. A. 1918C 715, Ann. Cas. 1918E 1127; Swearingen v. Railroad, 221 Mo. 644; Yarnell v. Railroad, 113 Mo. 570.

Charles P. Noell, Charles L. Moore and Allen, Moser & Marsalek for respondents.

(1) The third amended petition stated a cause of action against all defendants. It is to be liberally construed and accorded every reasonable inference and intendment after verdict. Parish v. Casner, 282 S.W. 392; Morrow v. Gas & Electric Service Co., 315 Mo. 367; Oliver v Hirsch, 296 S.W. 840. (2) The petition charged specific acts of negligence. Pointer v. Ry. Const. Co., 269 Mo. 104; Hennekes v. Beetz, 203 Mo.App. 63. (3) Plaintiff made a prima-facie case against the Southwestern Bell Telephone Company, and there was no error in overruling this appellant's demurrer to the evidence. (a) It was the duty of this defendant, as owner of the pole in question, to exercise ordinary care to see that the pole and equipment thereon was kept in reasonably safe condition so as to afford the employees of other companies, using the same under...