Rutledge v. Swinney
| Decision Date | 14 July 1914 |
| Citation | 169 S.W. 17,261 Mo. 128 |
| Parties | FRANK W. RUTLEDGE v. E. W. SWINNEY et al., Receivers of SEDALIA LIGHT & TRACTION COMPANY |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court. -- Hon. Hopkins B. Shain, Judge.
Affirmed.
George F. Longan and Seddon & Holland for appellants.
(1) The court should have given the peremptory instruction asked by appellants at the close of all the evidence, because the petition does not state a cause of action, in that it does not allege that the cross-arms and pins referred to in respondent's petition were furnished for the purpose of bearing the weight of linemen, or that respondent, while using same, was acting in the discharge of his duties. Roberts v. Tel. Co., 166 Mo. 369; Telephone Co v. Speicher, 117 Mo. 405; Sindlinger v. Kansas City, 126 Mo. 355; Kelly v. Lawrence, 195 Mo 75; Flood v. Tel. Co., 131 N.Y. 603. Because there was no testimony that the cross-arms and pins in question were furnished for the purpose of bearing the weight of linemen. Because it was the duty of respondent to make his own inspection. The evidence in this case shows that had he made a proper inspection, he would have discovered that the cross-arm and pins in question were weak on account of internal decay and would not sustain his weight. Smith v Light & Power Co., 143 Mo. 572; Forbes v. Dunnavant, 198 Mo. 193; McIsaacs v. Lighting Co., 172 Mo. 89. (2) The court erred in giving instruction number 11 at the instance of respondent, for the following reasons: (a) Because it provides for a recovery if the jury believe that the cross-arms on the pole in question and the pins thereon were in a defective and unsafe condition, without requiring any finding that they were designed or furnished to sustain the weight of linemen, or any finding that the respondent, in placing his weight on same, was acting in the discharge of the duties of his employment. Coyne v. Railroad, 133 U.S. 370. (b) Because it overlooks the direct testimony offered by appellants to the effect that it was the duty of each lineman to act as his own inspector. (c) Because, if respondent did not have the means at hand to make an inspection, he should have acquired them. (d) Because, in part, it is predicated on matters in regard to which there was no testimony, to-wit, that part in which a finding is required that plaintiff did not have opportunity, time or means to discover the condition of the cross-arm in question. (3) The court erred in refusing to give instruction 3 at the instance of appellants. Said instruction is amply supported by the evidence, correctly states the law and should have been given. (4) The court erred in refusing to give instruction number 5 at the instance of appellants. Said instruction correctly states the law and should have been given.
Montgomery & Montgomery and Charles E. Yeater for respondent.
(1) It was not necessary for a recovery by plaintiff to either plead or prove that the cross-arms and pins were furnished for the purpose of bearing the weight of linemen. The petition alleges that the cross-arm was a part of the place where the plaintiff had to work and that in order to complete his work he had to put his hand thereon in changing his position and that by reason of its defective condition, due to internal rot, which defendant could have ascertained by proper inspection, but which was not obvious, or apparent to the senses, plaintiff fell and was precipitated to the brick sidewalk below, while engaged on a rush job with neither time nor tools to inspect with. The evidence is undisputed that it was impossible for plaintiff to ascend the pole without using the cross-arms and that putting his hand on the cross-arm while undoing his safety belt and starting to climb the pole was an act absolutely necessary in order to make the ascent; and the evidence is also undisputed that all linemen customarily every day use the cross-arms in their work and in climbing; and defendants proved that linemen put their weight on the pins, and that the foreman, after plaintiff's fall, put the entire weight of his body on the very cross-arm in question in finishing the work. It is also undisputed that this cross-arm was not used for carrying wires, but for the purpose of supporting the iron transformer. The courts have held as a matter of law that cross-arms must be and always have been used by linemen as a means of support and that it is the duty of the master, aside from exceptional cases, to inspect them, so that they may be sufficient to meet the requirements of such use. Rutledge v. Swinney, 170 Mo.App. 251; McDonald v. Tel. Co., 22 R. I. 131; Clairain v. Tel. Co., 40 La. Ann. 178; Telegraph Co. v. Cloman, 97 Mo. 620. (2) The fact that plaintiff grabbed the pins in the act of falling is entirely immaterial as that had nothing to do with the defective condition of the cross-arms which had previously shelled off under the grasp of his left hand. Clutching in desperation the pins, like a drowning man grasping at straws, was merely the act of a person falling and in imminent danger of great bodily injury acting on the natural impulses of the instinct of self-preservation, and cannot be condemned. Plaintiff, however, could legally use the pins for a support by his hands in climbing. Rutledge v. Swinney, 170 Mo.App. 251; Chisholm v. Tel. & Tel. Co., 185 Mass. 83. (3) Conceding that cross-arms on a pole, and the pole itself are primarily intended only for carrying wires, they are suitable for the use of the linemen in steadying themselves in climbing and working on the poles and the undisputed evidence, including that of defendants, shows that they are so used, and it is self-evident that the master knows that they must be so used, and therefore, the contention of appellants in their brief, that plaintiff must be held negligent in law from the mere fact that he attempted to use the cross-arm in making his ascent, is unsound and erroneous, and defendants' given instruction 9 was more favorable than they were entitled to. Rutledge v. Swinney, 170 Mo.App. 251; Brimer v. Railroad, 109 Mo.App. 493; Palmer v. Kinloch Tel. Co., 91 Mo.App. 115; Winscott v. Railroad, 151 Mo.App. 378; Chisholm v. Telephone Co., 185 Mass. 83. (4) It was not the duty of the plaintiff to make a comprehensive inspection on his own motion, of the pole or its attachments for hidden or latent defects, and under the law of master and servant he was bound only to make such a casual inspection of obvious defects as were apparent upon the surface, and this duty the defendants could not impose upon the plaintiff by virtue of any rule, custom or understanding, or by refusing to assume the duty; and since the trial court instructed the jury by instruction B, given on the motion of the court, that unless the defendants had assumed the duty of inspection for hidden or latent defects, it was the duty of plaintiff to make his own inspection, in order that he might ascertain any and all defects that might make the cross-arms unsafe to him, whether said defects were obvious or hidden, it is therefore apparent that such instruction was unduly favorable to defendants and put an unfair burden upon the plaintiff. Corby v. Tel. Co., 231 Mo. 436; Knorpp v. Wagner, 195 Mo. 662; Nicholds v. Plate Glass Co., 126 Mo. 64; Hysell v. Swift & Co., 78 Mo.App. 43; Porter v. Railroad, 71 Mo. 78; Epperson v. Tel. Co., 155 Mo. 384; Lee v. Railroad, 112 Mo.App. 402; Doyle v. Trust Co., 140 Mo. 18; Rigsby v. Supply Co., 115 Mo.App. 308; Benton v. Railroad, 32 Mo.App. 458; Covey v. Railroad, 86 Mo. 641; Corey v. Railroad, 27 Mo.App. 179; Flynn v. Bridge Co., 42 Mo. 531; 26 Cyc. 1213.
Plaintiff sues for injuries sustained while working for defendants as a lineman. Defendants are receivers of the Sedalia Light & Traction Company.
This is the second appeal in this case. On the first trial plaintiff obtained a judgment of $ 5000, which was reversed by the Kansas City Court of Appeals on account of erroneous instructions. Upon a second trial plaintiff had judgment for $ 9000, from which defendants appeal to this court.
The plaintiff sustained his alleged injuries by falling twenty-one feet from an electric light pole upon a brick sidewalk. The nature of his injuries will be noted in connection with our conclusions.
The plaintiff, on the afternoon of February 8, 1912, was directed to assist defendants' foreman Gus Bergfelder and two other employees in removing a Horneberger transformer from a pole and replacing same with a larger transformer known as a General Electric.
The lighting plant for which defendants were receivers had been constructed several years. Some of their poles had become rotten at the ground, and many of the cross-arms on their poles used to support wires and transformers were also defective and had to be replaced with new cross-arms. Defendants had ordered all of their "Horneberger" transformers replaced with "General Electrics." The latter is described as being a larger transformer than the Horneberger. The sizes and weights of these transformers are not stated in the evidence or pleadings, and, while some originals and models were introduced, and the trial court and jury may have obtained a correct knowledge of their respective sizes, it is somewhat difficult for us to do so from the printed record.
The immediate cause of plaintiff's fall was the decayed condition of part of a cross-arm upon which he was installing a new transformer. He testifies that after the old transformer had been lowered to the ground and the new transformer raised and hung upon the cross-arm, it was his duty to connect, paint and solder several wires; in which work it was necessary for him to go both below and above the transformer. That, on account of the...
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