Smith v. Missouri & Kansas Telephone Co.

• Decision Date: 08 May 1905
• Parties: WILLIAM S. SMITH, Respondent, v. MISSOURI AND KANSAS TELEPHONE CO., Appellant
• Court: Kansas Court of Appeals

87 S.W. 71

113 Mo.App. 429

WILLIAM S. SMITH, Respondent, v. MISSOURI AND KANSAS TELEPHONE CO., Appellant

Court of Appeals of Missouri, Kansas City

May 8, 1905

Appeal from Buchanan Circuit Court.--Hon. A. M. Woodson, Judge.

AFFIRMED.

Judgment affirmed.

Thomas F. Ryan for appellant.

(1) The court erred in permitting the plaintiff to testify as to the condition of the pole and its surroundings two months after the accident. (2) The court erred in permitting the witness Lucas, to testify as to the condition of the pole and its surroundings two weeks after the injury. (3) The court erred in admitting the testimony of the witness, Ellis, as to the condition and situation of the wires after the injury to plaintiff, as the evidence showed that the condition of the wires had been changed. (4) Before this class of testimony is ever admitted it must first be shown that the condition and situation were the same as at the time when the injury occurred. Hipsley v. Railroad, 88 Mo. 348; Alcorn v. Railroad, 108 Mo. 81; Ely v Railroad, 77 Mo. 34. (5) The court should have given the demurrer asked by the defendant at the close of plaintiff's case and at the close of all the evidence in the case. (6) We respectfully submit that the facts not only show that the plaintiff was guilty of contributory negligence, but it shows that the plaintiff was wanton and reckless in his conduct, and had no regard for his own safety, and is not entitled to recover and the demurrer should have been sustained. Junior v. Power Co., 127 Mo. 79; Wray v. Power Co., 68 Mo.App. 380; Epperson v. Cable Co., 155 Mo. 346; Roberts v Tel. Co., 166 Mo. 370. (7) Under the law verdicts must be founded upon evidence and not upon mere conjecture, and it devolves upon the plaintiff to furnish this evidence, which he failed to do. Moore v. Railroad, 28 Mo.App. 626; Peck v. Railroad, 31 Mo.App. 126; Glick v. Railroad, 51 Mo.App. 95. (8) Where the evidence tends to show that an accident occurred in any one of two or more ways, one which renders defendant liable and the other does not, the burden of proof is upon the plaintiff to show that it occurred in the manner which renders defendant liable. Oglesby v. Railroad, 177 Mo. 272; O'Malley v. Railroad, 113 Mo. 325; Glick v. Railroad, 57 Mo.App. 105; Perkins v. Railroad, 103 Mo. 52; Peck v. Railroad, 31 Mo.App. 125; Moore v. Railroad, 28 Mo.App. 625; Hays v. Railroad, 97 N.Y. 259; Railroad v. Shertle, 97 Pa. St. 450. (9) Plaintiff having failed to prove the negligence charged in its petition, the demurrer should have been sustained on this point. We think this position is fully supported by the following authorities: Gurley v. Railroad, 93 Mo. 449; Bank v. Armstrong, 62 Mo. 59; Zentz v. Chappell, 103 Mo.App. 214; Haines v. Pearson, 100 Mo.App. 555; Aston v. Transit Co., 105 Mo.App. 226; Hite v. Railroad, 130 Mo. 132; Chitty v. Railroad, 148 Mo. 64; Feary v. Railroad, 162 Mo. 96; Rubber Co. v. Water Co., 181 Mo. 678; Hesselbach v. St. Louis, 179 Mo. 519. (10) The court erred in giving instruction numbered 4 for plaintiff. Rodgers on Expert Testimony, secs. 37, 39 and 41, p. 58, 61 and 64; 8 Ency. Plead. and Practice, sec. 7, p. 774; Wood v. Railroad, 181 Mo. 445; Hampton v. Massey, 53 Mo.App. 501; Thompson v. Ish, 99 Mo. 179; Price v. Ins. Co., 48 Mo.App. 281; Light Co. v. Ins. Co., 33 Mo.App. 349; Carter v. Baker, 1 Sawyer (U.S.C. C.) 512-525; Cuneo v. Dessoni, 63 Ind. 524; State v. Hinkle, 6 Iowa 380; Wood v. Sawyer, Phillip, (N. C. Law), 253-276; Fairchild v. Bascomb, 35 Vt. 398, 405; In re Springer, 4 Penn. Law 275.

W. K. Amick for respondent.

(1) The condition of the earth about the base tended to show whether the top of the pole had moved. On one side the earth was heaved up, on the other side you could put your hand down between the pole and the earth. This evidence was competent. (2) The testimony as to the condition of the primary wires within an hour or two of the accident was competent even though the ends of the wires were wrapped around the pole. (3) The petition pleads all the facts as they were proven. (4) There was no evidence of any intervening cause to produce the injury. (5) The demurrer should not have been given. It was not negligence to take hold of the primary wire even if it had been bare. The current could not pass on to his body while he had hold of the primary unless he was in contact with another wire that was grounded or carried a current so as to put himself in the circuit. The city wire was not grounded. Defendant recognized this and submitted that question in its instructions 2, 3, 4, 5 and 6. Geisman v. El. Co., 173 Mo. 678; Illingsworth v. Light Co., 161 Mass. 583; Melville v. El. Co., 70 N.E. 1052. (6) Plaintiff's instruction numbered 4 on expert testimony is correct. It first defines what is an expert witness; then says that expert testimony is the opinion of such a witness based upon the facts proven. The jury are not bound by expert testimony. Hull v. St. Louis, 138 Mo. 625-627; Railroad v. Fowler, 142 Mo. 688; State v. Darrah, 152 Mo. 532, 542; Kingsbury v. Joseph, 94 Mo.App. 305; Meyers v. Realty Co., 96 Mo.App. 630; Gaslight Co. v. Ins. Co., 33 Mo.App. 371; For a full discussion see note to 42 L. R. A. 573.

OPINION

JOHNSON, J.

Action for damages for personal injuries consequent to a fall from the top of a telephone pole where plaintiff, a lineman, was engaged in making certain repairs. Negligence on the part of defendant it is charged, was the producing cause of the fall. Plaintiff recovered judgment in the sum of three thousand dollars. No complaint is made of an excessive verdict but defendant asks a reversal because of errors claimed to have been committed during the progress of the trial, first among which was the overruling of its demurrer to the evidence.

The injury occurred September 8, 1903, in the city of St. Joseph. At that time the city was operating its own system of public lighting generating and using electricity for that purpose. The business of producing and supplying electricity for private use, either as power or for lighting was conducted by the street railway company. Defendant was operating a telephone exchange. All three corporations used the public streets for their lines of wire--strung upon poles--which carried the power to the various points of use throughout the city. The currents of electricity carried through the streets by the city and railway company being highly potential, the wires through which they flowed were insulated, and in many instances strung upon the same line of poles--defendant employing none but currents of low power used in their transmission bare wires carried upon its own pole lines. The pole from which plaintiff fell was situated on the east side of St. Joseph avenue at its intersection with Park street. It belonged to the city, but was in a line jointly used by the city and the railway company for the carriage of wires. This line came from the south from where the power was generated and passed along the east side of St. Joseph avenue to and beyond Broadway street. The wires carried by it with which we are concerned consisted of two used by the railway company in the transmission of currents of electricity for private use, termed in the evidence "primary wires," and one used by the city in feeding its arc lamps, called the "city wire." As the negligent act complained of is said to have occurred upon this line at or near Broadway street some six blocks north of the place of injury it is important, in reviewing the action of the court in overruling the demurrer, to understand the details of the situation at that point; and we will select as the focus of observation a certain pole, a unit in this line located at a point where the highway slightly deflects in is course. This pole is called in the evidence the "railway pole" and before the accident carried on the eastern projection of two cross arms the two "primary wires" and the "city wire" referred to. On the opposite side of the avenue was situated an important lead in defendant's telephone system which consisted of a heavy pole line provided with cross arms and pins sufficient to support and carry fifty wires. Coming from the south to the "railway pole" the direction of the avenue was east of north. Shortly before reaching the pole it curved somewhat sharply to the left until, pointed due north, it proceeded in that direction upon a tangent. The telephone lines following the course of the street, curved to the left at the point opposite the railway pole.

In order to strengthen the resistance of the telephone pole located in the curve to the strain imposed upon it by the weight and tension of taut wires, defendant set a guy pole about one foot north of the "railway pole" and from the top thereof ran a tightly drawn wire across the street to the telephone pole securely fastened to the tops of both poles and of sufficient strength to hold the telephone pole in place provided the guy pole retained its position. This was attempted to be secured by running a tightly drawn wire attached to the top of the guy pole and to an anchor planted in the ground some twenty-five feet east of the pole, the idea being that with such construction the telephone pole could not incline westward without drawing with it the top of the guy pole which could not be moved in that direction without the extraction of the buried anchor from its position. The first pole in line south of the "railway pole" was about twenty-five feet distant therefrom and carried on its top a lamp fed by the "city wire." There was but one cross arm attached to this pole but the "city wire" was looped into the lamp above from the opposite ends of a smaller cross arm attached to the other at a right angle thereto, thus preserving in the...