Shannon v. Kansas City Light & Power Company

• Citation: 287 S.W. 1031,315 Mo. 1136
• Decision Date: 15 November 1926
• Docket Number: 25123
• Parties: John Shannon, by Catherine Shannon, His Next Friend, v. Kansas City Light & Power Company, Appellant
• Court: United States State Supreme Court of Missouri

287 S.W. 1031

315 Mo. 1136

John Shannon, by Catherine Shannon, His Next Friend, v. Kansas City Light & Power Company, Appellant

No. 25123

Supreme Court of Missouri

November 15, 1926

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Affirmed (upon condition).

Johns H. Lucas, William C. Lucas and Ludwick Graves for appellant.

(1) The court erred in refusing to sustain the objection to the introduction of any evidence in the case. (a) The petition did not state facts sufficient to constitute a cause of action, but stated mere conclusions of the pleader. Hollis v. Light & Power Co., 204 Mo.App. 297. (b) The only possible theory of the petition was the attractive nuisance, which is not recognized in this sort of a case in Missouri. Rollo v. Const. Co., 291 Mo. 671; State ex rel. v. Ellison, 281 Mo. 671; Kelly v Benas, 217 Mo. 1; O'Hara v. Gas Light Co., 244 Mo. 405; Buddy v. Terminal Railroad, 276 Mo 284, 288. (2) The court erred in refusing to grant the demurrer to the evidence and the peremptory instruction. (a) Under the pleadings and the evidence appellant could not have reasonably anticipated this accident, and respondent was a casual trespasser. McCoy v. Power & Light Co., 229 S.W. 623; Anderson v. Railroad, 130 N.W. 391; McCaffrey v. Concord Elec. Co., 114 A. 395; State to use of Stansfield v. Tel. Co., 148 A. 149; Hardy v. Mo. Pac. Ry. Co., 266 F. 860; New York Ry. Co. v. Fruchter, 43 S.Ct. 38. (b) The appellant had fulfilled its obligation by putting its wires thirty feet up the air. Weatherby v. Gas & Elec. Co., 75 A. 8; Parker v. Elec. Ry. Co., 85 S.E. 33; Graves v Water Power Co., 87 P. 956; Mayfield Water & Light Co. v. Webb's Admr., 129 Ky. 395; Brush E. L. & P. Co. v. Lefevre, 49 L. R. A. 771. (c) The appellant is not an insurer, and is only liable for casualties that might be reasonably anticipated. Hardy v. Mo. Pac. Ry. Co., 266 F. 860; State ex rel. v. Ellison, 271 Mo. 433; American Brewing Assn. v. Talbott, 141 Mo. 683. (d) The proximate cause of respondent's injury was his own act in ascending the pole and crossing the cables and in grabbing the wire, and no act of appellant. State ex rel. v. Ellison, 271 Mo. 463; Boelsel v. Wells Fargo & Co., 260 Mo. 463; American Brewing Assn. v. Talbott, 141 Mo. 674; Smith v. Ozark Water Mill Co., 238 S.W. 575. (e) Liability in this case is against the great weight of authority in the United States. New York, N. H. & Hartford Railroad v. Fruchter, 43 S.Ct. 38; United Zine & Chemical Co. v. Britt, 42 S.Ct. 299; McCoy v. Power & Light Co., 229 S.W. 623; Mayfield Water Co. v. Webb's Admr., 129 Ky. 395; Wetherby v. Gas & Elec. Co., 25 L. R. A. (N. S.) 1120; Graves v. Water Power Co., 11 L. R. A. (N. S.) 452; Parker v. Electric Ry. Co., 169 N.C. 68; Roche v. Edison Co., 146 N.Y.S. 294; Simonton v. E. L. & P. Co., 28 Tex.App. 376; Anderson v. Railroad Co., 150 Iowa 465; McCaffrey v. Concord Elec. Co., 114 A. 395; Stansfield v. Telephone Co., 123 Md. 120; Hanna v. Iowa Central Ry. Co., 129 Ill.App. 134; Hickox v. Heat & Light Co., 206 N.Y. 464; Thompson v. Tel. Co., 138 Ky. 109; Johnson v. Elec. Light Co., 17 L. R. A. (N. S.) 435; Charlotte v. El. Anse, 154 Mich. 304; Adams v. Bullock, 227 N.Y. 208; Freeman v. Brooklyn Heights Ry. Co., 54 A.D. 596, 66 N.Y.S. 1052; Kempf v. Railroad Co., L. R. A. 1915C, 405; O'Gara v. Electric Co., 244 Pa. 156; Hardy v. Mo. Pac. Ry. Co., 266 F. 863; Rollo v. Const. Co., 291 Mo. 221; State ex rel. v. Ellison, 281 Mo. 621; Buddy v. Railroad, 276 Mo. 276; O'Hara v. Gaslight Co., 244 Mo. 405; Kelley v. Benas, 217 Mo. 1; Carey v. Kansas City, 187 Mo. 716; Arnold v. St. Louis, 152 Mo. 173; Butz v. Cavanaugh, 137 Mo. 503; Moran v. Pullman Car Co., 134 Mo. 641; Barney v. Railroad, 126 Mo. 372; Witte v. Stifel, 126 Mo. 295; Rushenberg v. Railway Co., 109 Mo. 112; Overholt v. Vieths, 93 Mo. 422. (3) The court erred in giving respondent's Instruction 1. (a) It does not limit his recovery to his pain and suffering, and the loss of earning capacity, after he reaches the age of twenty-one years, but was a roving commission to the jury to find any kind or amount of damages. Hawes v. Stock Yards Co., 103 Mo. 60; Maggioli v. Transit Co., 108 Mo.App. 416; Wilburn v. Transit Co., 36 Mo.App. 203. (b) It broadens the issues by submitting the question of defective insulation, which is unsupported by the testimony. Daniels v. Pryor, 227 S.W. 105; Degonia v. Railroad, 224 Mo. 589; State ex rel. v. Ellison, 270 Mo. 653. (4) The verdict is insufficient upon which to base a judgment: (a) It merely finds a verdict for the plaintiff and fails to find the issues in the case in his favor. McKinley v. St. Ry. Co., 192 S.W. 1052. (b) It is contrary to the court's Instruction 10 in that it fails to find any issues whatever for the plaintiff. McKinley v. St. Ry. Co., 192 S.W. 1052. (5) The court erred in failing to set aside the judgment because of its gross excessiveness, it clearly showing on its face that it was the result of passion and prejudice, contrary to the facts and the law, and not the result of fair and impartial consideration on the part of the jury. Jones v. Railway Co., 228 S.W. 785; Mahany v. Rys. Co., 228 S.W. 827. It is grossly excessive. Phippin v. Mo. Pac. Ry. Co., 196 Mo. 321; Reynolds v. Transit Co., 189 Mo. 408; Huston v. Railroad Co., 151 Mo.App. 335; Davenport v. Electric Co., 242 Mo. 111; Williams v. Wabash Railroad Co., 175 S.W. 900; Riggs v. Railroad Co., 212 S.W. 878; Parks v. United Rys. Co., 235 S.W. 1067; Simon v. Brass Works, 250 S.W. 74.

Joseph B. Shannon, James A. Shannon, Harry R. Freeman and Madden & Madden for respondent.

(1) Plaintiff's theory of recovery: 20 C. J. 357; Curtis on Law of Electricity, secs. 437, 497; Goodwin v. Tel. Co., 157 Mo.App. 596; Paine v. Elec. Co., 72 N.Y.S. 279; Atlantic City Rys. v. Owings, 97 Ga. 663; Paducah L. & P. Co. v. Parkman, 156 Ky. 197; Nashville Inter. Ry. Co. v. Gregory, 137 Tenn. 422; Richmond Elec. Co. v. Rubin, 102 Va. 809; Johnson v. Elec. L. Co., 232 S.W. 1194; Brubaker v. Elec. L. Co., 130 Mo.App. 439; Kribbs v. Jeff. City L., H. & P. Co., 199 S.W. 261; Von Treba v. Gas L. Co., 209 Mo. 659; Clark v. Railroad Co., 234 Mo. 418; Sudmeyer v. Railways, 228 S.W. 64. (2) The objection to the introduction of evidence: Harrison v. Light Co., 195 Mo. 606. (3) The attractive nuisance doctrine: 29 Cyc. 447; Williams v. Gas & Elec. Co., 274 Mo. 11; Godfrey v. L. & P. Co., 253 S.W. 238; Day v. L. & P. Co., 136 Mo.App. 274; Thompson v. City of Slater, 197 Mo.App. 247; 20 C. J. 350; Curtis on Law of Electricity, sec. 467; Guinn v. Teleg. Co., 72 N. J. L. 276; Benton v. Pub. Service Co., 163 N.C. 354; Ferrell v. Durham Fric. Co., 172 N.C. 682; Com. Elec. Co. v. Melville, 210 Ill. 70; Temple v. E. L. & P. Co., 89 Miss. 1; Daltry v. Media Elec. Co., 208 Pa. 403; Meyer v. L. & P. Co., 151 Wis. 279; Mullen v. G. & E. Co., 229 Pa. 54; Dwight Mfg. Co. v. Ward, 75 So. 979; Toney v. St. Pr. Co., 180 Iowa 1362.

Atwood, J. All concur, except Graves, J., absent.

OPINION

ATWOOD

Kansas City Light & Power Company appeals from a judgment in the Circuit Court of Jackson County for $ 30,000 awarded respondent as damages for personal injuries resulting from electrical burns.

The principal allegations of plaintiff's amended petition are that defendants operated and maintained electric light systems in Kansas City, Missouri, and in doing so provided placed and maintained wires strung on poles in and about said city; "that said wires carried an electric current for lighting streets and furnishing light and power to residences and business houses in said city; that two or more of said wires were strung on poles north-and-south across 26th Street between Brooklyn and Park Avenues, all public streets in said city; that it was the duty of defendants to keep said wires carrying the current of electricity insulated and to keep them in such a position and condition and the insulation thereon so that the electric current would not escape to other wires or substance with which they came in contact; that below said wires, also strung on poles, were cables carrying wires east and west, that a guy wire extended down from one of said poles on the north side of 26th Street, and on the 29th day of July, 1917, the wires carrying the current as aforesaid were loose and sagged down and came in contact with the guy wire, and the insulation was in such condition that the current escaped to said guy wire, making it carry a high voltage of electricity, and children for a long time had been in the habit of climbing said poles, being upon said cables and in a tree a few feet west of said poles;" that on the 29th day of July, 1917, plaintiff "was in said 26th Street and came in contact with the guy wire, the wires carrying the current, and with the cables carrying other wires as aforesaid, and the current of electricity passed from the guy wire and wires carrying the current through his body injuring him as follows: Plaintiff's hands, feet and body were burned and lacerated and injured to such a degree that operations were required, and parts of the hands, feet and fingers were removed; that plaintiff received a severe shock to his entire nervous system; was rendered unconscious and suffered from loss of blood;" that "on account of said injuries he has suffered great physical pain and mental anguish; that he has been disabled thereby, suffers therefrom, and will be disabled as long as he lives; that on account of said injuries his hands are almost useless, and his feet so impaired that it interferes with his ability to walk and move about; that said injuries are serious and permanent in their nature and plaintiff is greatly humiliated by the unsightly scars and burns on his body; that he suffers from nervousness and loss of nerve control; that his...