Smissman v. Wells

• Decision Date: 06 November 1923
• Docket Number: No. 17727.,17727.
• Citation: 213 Mo. App. 474,255 S.W. 935
• Parties: SMISSMAN v. WELLS.
• Court: Missouri Court of Appeals

255 S.W. 935

213 Mo. App. 474

SMISSMAN v. WELLS.

No. 17727.

St. Louis Court of Appeals, Missouri.

November 6, 1923.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Kalman Smissman against Rolla Wells, receiver of the `United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and E. P. Walsh, all of St. Louis, for appellant. S. P. Bond, of St. Louis, for respondent.

BRUERE, C.

Action by plaintiff, respondent here, to recover for personal injuries and damages caused by coming in contact with a broken trolley wire owned by the defendant company. The trial resulted in a verdict for the plaintiff for $1,800, and defendant appealed.

The charging part of the petition is as follows:

"That on the 16th day of June, 1919, whilst plaintiff was driving his horse and riding in his buggy on the street or near the street car tracks in charge of and operated by the defendant, on Carr street, a public street and thoroughfare, in said city of St. Louis, at or near its intersection of High street, a public street and thoroughfare of the city of St. Louis, said streets and tracks being used at all hours of the day by the defendant to run street cars thereon by means of an electric trolley wire charged with electricity of great power and danger suspended above said tracks, and which it was the duty of the defendant to exercise the highest degree of care to maintain and keep said trolley wire so charged with electricity from dropping on persons, vehicles, and horses and coming in contact with persons, vehicles, and horses on the tracks and streets, which were used by men, women, and children, and persons riding and driving thereon, under and beneath said electric trolley wire, at all times of the day, yet said electric wire, under the management, control, and use of the defendant, suspended over the said tracks operated by the defendant, and so charged with a dangerous and deadly current of electricity, was negligently and carelessly permitted to drop by the defendant, and came in contact with the plaintiff's horse, buggy, and plaintiff, thereby killing plaintiff's horse, damaging his buggy and harness, and injuring plaintiff as hereinafter described."

The answer denies the negligence charged, and, for an affirmative defense, avers that whatever injuries and damages, if any, plaintiff sustained were caused by an act of God, in that, at the time and place charged in plaintiff's petition, a storm of the elements was raging, in which lightning struck the wire mentioned in plaintiff's petition, and caused the same to break and fall.

The plaintiff in his reply denies generally the allegations in defendant's answer, and for further reply avers:

That "if there was a stroke or flash of lightning as alleged in defendant's answer it was not the cause of the falling of the wire, but that said trolley wires were old, worn, loose at their connections, rusty, and weak and there was further negligence in the defendant not having lightning arrester and arresters on their lines and at the place of injury to divert any stroke of lightning which might occur, and, further, there were many wires above the electric trolley wires which would have received a flash or stroke of lightning and diverted it before hitting the defendant's trolley wire."

The plaintiff's evidence tends to show that on the 16th day of June, 1919, while plaintiff was driving his horse and buggy east on Carr street, a public street in the city of St. Louis, at the intersection of High street, a trolley wire of the defendant, charged with a high current of electricity, and which was suspended over said intersection, fell and came ' in contact with plaintiff's horse, harness, buggy, and plaintiff's person, thereby injuring plaintiff, killing his horse, and damaging his buggy and harness. The evidence for the defendant tended to show that an electrical storm was raging at the time and place of the accident, and that the trolley wire was struck by a stroke of lightning, causing the same to break and fall into the street.

Plaintiff's evidence, in rebuttal, tended to show that, at the time of the accident, the defendant company had no lightning arresters on their trolley poles and wires; that lightning arresters were used by street railway companies and others supplying electricity by means of overhead wires upon the public streets; that they were used for the purpose of detracting electricity from the wires and diverting it to the ground, and that they prevented the wires from breaking when struck by lightning. Evidence was also introduced by the plaintiff to the effect that the broken wire was worn half away, and that a current of electricity passing over a wire had the tendency to get to the ground through the weakest part of the wire. In contradiction of defendant's testimony that a bolt of lightning struck the trolley wire, the evidence of the plaintiff shows that, at the time and place of the accident, there were many wires above the trolley wire on both sides of High and Carr streets which would have received a stroke of lightning and diverted and prevented it from striking the trolley wire.

Defendant's evidence, in surrebuttal, tended to show that lightning arresters were used to take up the overcharge of electricity or lightning from the atmosphere and divert it from the plant to the ground; that defendant company had no lightning arresters installed on their trolley poles and wires, except where their lines entered power stations; that the installation of lightning arresters would not prevent a direct charge of electricity by a stroke of lightning from breaking a trolley wire, because such a stroke would blow them all to pieces; and that it was the practice to install lightning arresters on trolley lines, only where those lines enter buildings, or power stations, and that this was done to protect the machinery and apparatus in the stations from being damaged by a stroke of lightning striking the wires.

The errors assigned relate to the refusal of the trial court to direct a verdict for the defendant at the close of the whole case, to the giving and refusing of instructions, to the admitting of evidence over the objection of the defendant, and to the overruling of defendant's objection to the alleged improper argument to the jury on the part of counsel for plaintiff.

In support of the contention that the demurrer to plaintiff's evidence should have been sustained, it is urged that, the plaintiff, having pleaded specific negligence, totally failed in his proof to substantiate the allegations of his petition. To this we cannot assent. The negligence pleaded in the petition is general negligence, and not specific negligence. The proof of the facts alleged made out a case peculiarly within the doctrine of res ipsa loquitur; the thing speaks for itself. The law of this state imposes upon those engaged in the transmission and utilization of electricity over and along public streets, to use the highest degree of care to keep their wires in such condition as to prevent injury to persons rightfully on the streets, caused by the escape of the deadly fluid from its wires. The plaintiff, having proved that defendant's live trolley wire was down in a public street, and that he, while rightfully on the street, was injured by coming into contact with it, made out a complete prima facie case...