Rutledge v. Swinney

• Decision Date: 14 July 1914
• Docket Number: No. 17774.,17774.
• Citation: 261 Mo. 128,169 S.W. 17
• Parties: RUTLEDGE v. SWINNEY et al.
• Court: Missouri Supreme Court

169 S.W. 17

261 Mo. 128

RUTLEDGE v. SWINNEY et al.

No. 17774.

Supreme Court of Missouri, Division No. 2.

July 14, 1914.

1. PLEADING (§ 406)—PETITION—SUFFICIENCY AFTER VERDICT.

In an electric light lineman's action for injuries caused by a cross-arm crumbling and permitting him to fall, the petition alleged that it was the duty of defendant to exercise ordinary care in inspecting the poles, cross-arms, pins, and wires and other places where workmen would have occasion to work, so as to ascertain whether such places were ordinarily safe for such workmen; that defendant wholly failed to discharge such duty with regard to the particular pole involved; that the cross-arms upon such pole and the pins sunk therein were defective, unsafe, and dangerous; and that defendant knew, or in the exercise of ordinary care should have known, of such condition, and should have remedied it so as to make the place safe. It was attacked as failing to allege that the cross-arm was designed or intended to support the weight of linemen. Held that, while it did not categorically allege that the cross-arm was intended to support plaintiff's weight, it alleged with sufficient clearness that the rotten condition of the cross-arm was the cause of the injury, and the allegation that it was defendant's duty to inspect the cross-arm and make it safe was equivalent to an allegation that it was necessary and intended that linemen should go thereon in the performance of their work, and hence, in the absence of any demurrer or motion to make the petition more definite, the petition was sufficient after verdict, where plaintiff's evidence tended to show that, in climbing over a transformer, he could not secure a hold upon the pole but was compelled to take hold of the cross-arm.

2. PLEADING (§ 35)—PETITION—SURPLUSAGE.

It appearing that defendant did not catch hold of the pins in the cross-arm until the cross-arm itself crumbled and gave way, the allegations that the pins were defective should be treated as surplusage; it being the decayed condition of the cross-arm and not the pins which caused the fall.

3. MASTER AND SERVANT (§ 238)—LIABILITY FOR INJURIES—CONTRIBUTORY NEGLIGENCE.

An electric light lineman engaged in replacing a transformer with a new one after hanging the new transformer upon a cross-arm was compelled to go above the transformer in order to connect, paint, and solder several wires. In doing this he was compelled to unfasten his belt from the pole and climb over the transformer, and, being unable to secure a hold upon the pole, he took hold of the cross-arm to which the transformer was hanging and which crumbled, permitting him to fall. There was nothing in the appearance of the cross-arm to indicate decay or hidden defects, and it was strong enough to hold up the old transformer as well as the new one, which was heavier. Held, that the lineman was not negligent in placing his weight upon the cross-arm without first fastening his belt to the pole.

4. MASTER AND SERVANT (§ 124)—LIABILITY FOR INJURIES—INSPECTION.

A reasonable degree of prudence on the part of the foreman in charge of such work would have caused him to inspect the cross-arm or to furnish the lineman with suitable tools, and to instruct him to inspect it before installing the larger transformer.

5. MASTER AND SERVANT (§§ 286, 289)—ACTIONS FOR INJURIES—QUESTIONS FOR JURY.

In an electric light lineman's action for injuries caused by a cross-arm crumbling and permitting him to fall, evidence as to whether it was the duty of the lineman or of the employer to inspect the cross-arms held a question for the jury.

6. MASTER AND SERVANT (§ 291)—ACTIONS FOR INJURIES—INSTRUCTIONS.

In an electric light lineman's action for injuries caused by a cross-arm crumbling and permitting him to fall, instructions on behalf of plaintiff, attacked by defendant, held to fairly outline plaintiff's theory of the case.

7. MASTER AND SERVANT (§ 291)—ACTIONS FOR INJURIES—INSTRUCTIONS—CONFORMITY TO EVIDENCE.

In an electric light lineman's action for injuries caused by a cross-arm crumbling and permitting him to fall, an instruction hypothesizing the lineman's lack of opportunity, time, or means to discover the condition of the cross-arm was justified by evidence that he was required to perform a rush job and was not furnished tools with which he could have detected the decayed and unsafe condition of the cross-arm.

8. APPEAL AND ERROR (§ 1003)—REVIEW—QUESTIONS OF FACT.

The weight to be given the evidence for plaintiff was foreclosed by the jury's verdict for plaintiff.

9. TRIAL (§ 260)—INSTRUCTIONS—CURE BY OTHER INSTRUCTIONS.

In an electric light lineman's action for injuries caused by a cross-arm crumbling and permitting him to fall, the court refused to charge that plaintiff could not recover if, under the system of work adopted by defendant for its linemen, it was plaintiff's duty, before he climbed a pole or rested his weight upon a cross-arm, to make a careful inspection to ascertain whether such pole or cross-arm was sufficient to sustain his weight. It, however, charged that, even though linemen frequently placed their weight on cross-arms, it was plaintiff's duty, before doing so, to exercise ordinary care to ascertain whether it was adequate to bear his weight, and that, if plaintiff, by exercising such care, would have discovered that the cross-arm was too weak to sustain his weight, he could not recover, that if it was plaintiff's duty to make his own inspection to ascertain defects rendering cross-arms unsafe, whether obvious or hidden, then ordinary care, as applied to such duty of inspection, meant such care and caution, considering all the facts and circumstances, including the elements of means and time for making a comprehensive inspection as an ordinarily prudent person, upon whom the duty of inspection devolved, would use under the same or similar circumstances, but that, if the duty of inspection for hidden or latent defects was not plaintiff's duty but was assumed by defendant, then ordinary care meant such care and caution, in view of all the facts and circumstances, as an ordinarily prudent person would use in ascertaining obvious defects. Held that, if the evidence justified the refused instruction, its refusal was harmless, as defendant's theory of the case was properly presented by the other instructions.

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

Plaintiff, an electric light lineman, 29 years old, experienced in handling and repairing electrical appliances and doing signal work on railroads, earning $65 a month and having earned as high as $85 a month, fell 21 feet from an electric light pole upon a brick sidewalk. A bone was broken in one of his elbows, which had never been removed and the muscles were torn loose from the bone, rendering that arm useless, and the evidence was conflicting as to whether the elbow could be so treated that he could again use the arm. One of his ears was injured internally, so as to destroy his hearing through that ear, and this loss of hearing rendered him unfit for signal work on railroads. The muscles on one side of his body were withered and atrophied, giving him a lopsided appearance. His general health declined, and his weight was reduced from 152 to 121 pounds. His pain, which continued for two weeks, was so great as to render him temporarily insane. Held, that a verdict for $9,000 was not excessive.

Appeal from Circuit Court, Pettis County; Hopkins B. Shain, Judge.

Action by Frank W. Rutledge against E. W. Swinney and another, receivers of the Sedalia Light & Traction Company. From a judgment for plaintiff, defendants appeal. Affirmed.

See, also, 170 Mo. App. 265, 156 S. W. 478.

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 $5,000, which was reversed by the Kansas City Court of Appeals on account of erroneous instructions. 170 Mo. App. loc. cit. 265, 156 S. W. 478. Upon a second trial plaintiff had judgment for $9,000, from which defendants appeal to this court.

The plaintiff sustained his alleged injuries by falling 21 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 employés 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 position of numerous wires, he was compelled to unfasten his belt from the pole and climb over the transformer; in...