Ryan v. St. Louis Transit Company

• Citation: 89 S.W. 865,190 Mo. 621
• Parties: MARY RYAN v. ST. LOUIS TRANSIT COMPANY, Appellant
• Decision Date: 25 October 1905
• Court: United States State Supreme Court of Missouri

89 S.W. 865

190 Mo. 621

MARY RYAN v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, Division Two

October 25, 1905

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferriss Judge.

Affirmed.

Geo. W Easley with Boyle, Priest & Lehmann for appellant.

The court erred in overruling defendant's demurrer to plaintiff's evidence in chief. The strongest inference that can be drawn from the whole of the plaintiff's evidence is that some portion of the insulation had run or dripped from the cable in consequence of the heat or temperature in the basement of the power house; that the plaintiff's husband, in some manner not explained by the evidence, allowed the wrench to rest upon the pipe and the other end of the wrench, by his act and that of his working companion, to come in contact with the cable by breaking through the insulation softened by the temperature of the basement, thus forming a circuit between the cable and pipe. It is indisputable that one of the deceased's hands rested on the wrench, and his companion, Madden, leaves the question in doubt as to whether the other hand of deceased rested upon the pipe or upon his knee. But it is indisputable that, if his hand rested upon his knee, there would have been no circuit of electricity passed through his body. One pole of the circuit would have been wanting. The tile conduit upon which he stood was a non-conductor. If, however, one of his hands rested on the pipe, both poles of the circuit would be present and the current would have passed through his body. "The injury could occur in only one way, . . . . namely by his bare hand coming in contact with" the wrench which was then in contact with the wire, "and his other hand or part of his bare person coming into contact in the same instant with the iron" pipe, "so as to pass the electrical current through him. Could the defendant have reasonably anticipated, under these circumstances, the occurrence of an accident such as this? Ought the defendant to have foreseen it, in the light of attending circumstances? We think not. It clearly appears that the use of the wooden pole in climbing up or coming down was not dangerous, nor was it possible for the plaintiff, while climbing or clinging to it, to have received a shock even by touching the charged span wire, unless he completed the circuit, at the same instant, by touching the iron post with his naked hand or person. The defendant had no right to expect that an inexperienced operative would have climbed to such a point, much less that an experienced and competent one, with his knowledge of the situation, at the only possible point of danger, with the warning of this circuit breaker before him, would practically eliminate it as a means of safety, and by placing his body substantially in its place, complete the electrical circuit, so that the current would necessarily pass through his body. It was not expected that he would have occasion to touch or come in contact with the span wire beyond the circuit break, or the iron post, for any purpose, and certainly not so as to complete an electrical circuit with his body." Huber v. LaCrosse, etc., 92 Wis. 363; Walters v. Railroad, 64 A.D. 150; Am. Brew. Co. v. Talbot, 141 Mo. 683; Ray on Neg. of Imposed Duties, pp. 183, 184; Webb's Pollock on Torts (Enlarged Am. Ed.), pp. 45, 46; Fuchs v. St. Louis, 167 Mo. 645; 2 La. Batt's M. & S., secs. 364, 601, 810; 1 Kinkhead's Torts, sec. 316; Owings v. Oil Mill (S.C.), 33 S.E. 511.

John S. Leahy and Block, Sullivan & Erd for respondent.

(1) Appellant's negligence was amply proven. Geismann v. Electric Co., 173 Mo. 674. (2) Deceased was not guilty of contributory negligence in working where he did, because apparently there was no immediate danger, and apparently the work might, with care, be safely undertaken. Mathis v. Stock Yards Co., 185 Mo. 434; Wendler v. House Fur. Co., 165 Mo. 540; Hamman v. Coal Co., 156 Mo. 244; Young v. Oil Co., 185 Mo. 634. (3) The burden of proving that deceased was guilty of contributory negligence, in the manner of doing his work, rested with appellant. Baker v. Railroad, 122 Mo. 544; Williams v. Railroad, 109 Mo. 486; Young v. Iron Co., 103 Mo. 328. (4) Preliminary statements in the charge, if erroneous, furnish no ground for reversal. Burton v. Trenton, 116 Mo. 371; Golden v. Clinton, 54 Mo.App. 116. (5) Deceased did not assume risks in his employment which were attributable to appellant's negligence. Curtis v. McNair, 173 Mo. 279; Chambers v. Chester, 172 Mo. 483. (6) If the accident is attributable to the joint negligence of appellant and deceased's helper, or employer, appellant is nevertheless liable. Newcomb v. Railroad, 169 Mo. 422.

GANTT, J. Burgess, P. J., and Fox, J., concur.

OPINION

GANTT, J.

This action was commenced July 19, 1901, against the St. Louis Transit Company and the Cullen & Stock Heating and Ventilating Company, to recover damages for the death of the plaintiff's husband. An amended petition was filed on the 10th of December, 1901, omitting all reference to the Cullen & Stock Heating and Ventilating Company, other than that the plaintiff's husband was a pipe-fitter in the employ of the Cullen & Stock Heating and Ventilating Company, which was under contract with the appellant to erect and place in position in its powerhouse on Tiffany avenue, between Vista and Park avenues, certain pipes for the conveyance of water through said building and to the engines and boilers therein. It is then alleged that on the 9th day of May, 1901, the plaintiff's husband, James P. Ryan, at the special instance and request and with the knowledge and consent of the defendant Transit Company, entered the said premises in order to perform the labor required of him in the construction and erection of said pipes; that said Ryan was required to and did get upon a certain conduit, and while on said conduit, and while exercising the care and caution in and about his work which should have been exercised by a reasonably careful person, and while handling and adjusting one of said iron pipes entering into the construction in which he was then engaged, the said Ryan received through said pipe on which he was then working an electric shock, which then and there immediately caused his death.

The petition further alleges that adjacent and in close proximity to said iron pipes then being erected by said James P. Ryan were certain cables or wires used by appellant for the purpose of distributing and equalizing the electricity between the switching boards in said building, and as a part of its appliance in generating and distributing electricity for the purpose of propelling its street cars; that said cables or wires were highly charged with electricity and were known to be so highly charged by the appellant, and that the said wires or cables so charged were exceedingly dangerous to life and limb, and were known to be thus dangerous by the defendant; that because of the dangerous character of said wires or cables when so charged with electricity, and for the purpose of rendering them less dangerous, said wires had been insulated, but plaintiff charges the fact to be that the insulation on said wires or cables was decayed, insufficient and inadequate to prevent the communication of electricity with which said wires or cables were charged, to other metallic substances coming in contact therewith; that the same were negligently and carelessly insulated in an improper manner, and had been permitted to become decayed, disintegrated and incapable of preventing the communication of electricity in said wires and cables to other metallic substances with which they might come in contact. That said wires or cables were negligently and carelessly strung along the ceiling of the basement of said building and immediately over the conduit aforesaid; that said wires or cables were supported or held to the ceiling of said basement at spaces aggregating five feet, and, by reason of the weight of said cables and the use to which they were put, the said wires sagged so that they hung from said ceiling at a point immediately over said conduit at a distance of about two feet below the ceiling, instead of being securely and tautly held close to the ceiling. The insulation of said wires was composed of a material that, being stretched, would disintegrate, crumble and fall off, thereby destroying the protection which said insulation was intended to afford, whereby the wires proper were suffered to come in contact with other substances, or, because of the defectiveness and insufficiency of the insulation, the electricity contained therein could be and was communicated to other objects with which said wires or cables could be and were in contact, and the said wires had been for a long time maintained by the defendant in the condition and position aforesaid, that is, in a condition and position such as permitted the electricity to be easily communicated to other substances coming in contact therewith, and that the maintenance of said wires or cables in said condition and position was negligence. Plaintiff says that on said 11th day of May, 1901, by reason of the defective condition of said wires and cables aforesaid, the electricity contained therein was communicated to the pipe or piping then being erected, and in the erection of which the said James P. Ryan was then engaged, and that while he, the said James P. Ryan, was erecting the said pipe or piping, and while he, the said James P. Ryan, was exercising due caution, the electricity communicated from said wires or cables to and through said pipe or piping was communicated to the body of the said James P. Ryan with such force and violence as to cause his immediate death as aforesaid. Plaintiff says that it was the duty...