Smith v. St. Joseph Railway, Light, Heat & Power Co.

• Decision Date: 06 October 1925
• Docket Number: 24969,24970
• Citation: 276 S.W. 607,310 Mo. 469
• Parties: LILLIAN SMITH v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY, WESTERN DAIRY & ICE CREAM COMPANY and BICHLER MANUFACTURING COMPANY, Appellants
• Court: Missouri Supreme Court

276 S.W. 607

310 Mo. 469

LILLIAN SMITH v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMPANY, WESTERN DAIRY & ICE CREAM COMPANY and BICHLER MANUFACTURING COMPANY, Appellants

Nos. 24969, 24970

Supreme Court of Missouri

October 6, 1925

Appeal from Buchanan Circuit Court; Hon. Lawrence A Vories, Judge.

Affirmed.

Brown Douglas & Brown for appellant Railway Company.

(1) There is a failure of proof of the essential allegation that deceased was standing on the guy wire when he was killed. A mere possibility that the accident happened in that manner is insufficient. McGrath v. Transit Co., 197 Mo. 106; Marlowe v. Kilgen, 252 S.W. 424; Pate v Dumbauld, 250 S.W. 49; Perkins v. Wilcox, 242 S.W. 979; Van Bibber v. Swift & Co., 286 Mo. 317; Grant v. Ry. Co., 190 S.W. 590; Warner v. Ry. Co., 178 Mo. 125. (2) The judgment cannot be sustained on the theory that the deceased was in contract with some other conductor or "ground" when he struck the cut end of the south primary wire, for the reason that no such theory is presented by either the pleadings or the evidence. State ex rel. v. Ellison, 270 Mo. 645. (3) The contentions of the other appellants, the Dairy Company and the Bichler Company, that the cutting of the Railway Company's primary wires, and their subsequent repair was the intervening proximate cause of the accident, if well founded, would not permit affirmance of the judgment as against the Railway Company. (a) The Railway Company was not negligent in the cutting and repairing of the wires in the usual and ordinary way. Brands v. St. Louis Car Co., 213 Mo. 698; Chrismer v. Bell Tel. Co., 194 Mo. 189; Martin v. Kline Apparel Co., 249 S.W. 965; Knott v. Iron Works, 253 S.W. 749. (b) Under the pleadings and the evidence the placing and maintaining of the uninsulated guy wire on the appellant Railway Company's pole was an essential concurring factor, without which the accident would not have happened, and it follows that none of the appellants are liable if the guy wire was not shown to be a proximate cause of the accident. Harrison v. Light Co., 193 Mo. 606; Thompson v. City of Slater, 193 S.W. 971; Schmidt v. Transit Co., 120 S.W. 96. (4) Deceased was guilty of contributory negligence as a matter of law. Egan v. Gas & Elec. Co., 233 S.W. 239; Shelton v. Light, Power & Ice Co., 258 Mo. 534; Junior v. Elec. Co., 127 Mo. 79; Bergin v. Tel. Co., 70 Conn. 54; Woodward v. Taunton, 203 Mass. 63.

Orestes Mitchell for appellant Dairy Company.

(1) The court erred in submitting this case to the jury against the Dairy Company, because at the best the evidence only shows a mere guess or conjecture as to whether the deceased was standing on the guy wire or not, at the time he was killed, and a jury cannot base a verdict on conjecture. McGrath v. Transit Co., 197 Mo. 106; Marlowe v. Kilgen, 252 S.W. 424; Pate v. Dumbauld, 250 S.W. 49; Perkins v. Wilcox, 242 S.W. 979; Van Bibber v. Swift & Co., 286 Mo. 317; Grant v. Ry. Co., 190 S.W. 590; Warner v. Ry. Co., 178 Mo. 125. (2) Under the facts in this case, the court erred in not sustaining the demurrer of the defendant Dairy Company offered at the close of plaintiff's evidence and at the close of all the evidence, because the evidence clearly shows that the proximate cause of the death of Smith was not any act of the Dairy Company. Washburn v. Laclede Gas Light Co., 202 Mo.App. 102, 284 Mo. 181; Lofty v. Const. Co., 256 S.W. 89. (3) The court erred in refusing to sustain defendant Dairy Company's demurrer at the close of plaintiff's evidence and at the close of all of the evidence, because the evidence showed that the deceased was an expert electrician, of thirty-five years' experience in the service of the defendant Light Company, thoroughly familiar with the electrical equipment involved, and he was guilty of contributory negligence in attempting to climb upon the electrical equipment of the defendant Light Company without informing himself as to whether or not the severed primary wires were charged with electricity. Doerr v. Brew. Assn., 176 Mo. 547; Shuck v. Realty Co., 201 S.W. 559; Henderson v. Railroad Co., 248 S.W. 987; Egan v. Gas & Elec. Co., 233 S.W. 1005; Egan v. Trenton Gas Co., 233 S.W. 239. (4) The court erred in refusing to give to the jury Instruction F. as requested by the defendant Dairy Company. Washburn v. Laclede Gas Light Co., 202 Mo.App. 102, 284 Mo. 181. (5) The court erred in giving to the jury the additional instruction after the return of their verdict. Dunn v. Dunnaker, 87 Mo. 597; Simpson v. Railroad Co., 192 S.W. 740; Gillette v. Laederich, 242 S.W. 114.

Waldo P. Goff and Ryan & Zwick for appellant Bichler Manufacturing Company.

(1) The court erred in refusing to give the instruction in the nature of a demurrer requested by defendant Bichler Company at the close of the case: (a) Because there was a total failure of proof to show that said defendant owed any duty to the husband of plaintiff, or that his death was the result of any negligence upon its part. The attaching of the guy wire to the pole, months before the accident, was not the proximate cause of the death of plaintiff's husband. Washburn v. Laclede Gas Light Co., 214 S.W. 410, 233 S.W. 725. Before defendant Bichler Company can be held liable for the injury of plaintiff's husband it must be shown: First, that a duty existed on its part to protect the husband of plaintiff from the injury which resulted in his death. Second, the failure of the defendant to perform that duty. Third, that the injury resulted from such failure of the defendant. Loehing v. Const. Co., 118 Mo.App. 171. (b) There is an utter failure of proof that defendant Bichler Company could have reasonably foreseen or anticipated the probable injury to plaintiff's husband, even if it should be conceded that the guy wire was the conduit that carried the deadly current of electricity into the body of plaintiff's husband and thus caused his death. 29 Cyc. 492, 493; DeMoss v. Rys. Co., 246 S.W. 566. (c) Because it was conclusively shown that plaintiff's deceased husband was guilty of negligence which directly contributed to and resulted in his death. He was an experienced electric lineman and was sent by his employer to assist in repairing the wires that had been severed by his foreman. He not only knew the dangerous conditions surrounding him, but he was actually warned to look out for the dangers. The live wire that had been severed was dangling before his eyes. It lay over the cross-beam within a few inches of where he laid his gloves which he carried for his protection. He knew that the severed wire was then charged with a deadly current. And yet, with all this knowledge of his dangerous position, he permitted his body to come in contact with a wire containing a current powerful enough to kill him. These facts, under all the authorities, clearly preclude the right of recovery in this case. Junior v. Elec. Light Co., 127 Mo. 79; Eagan v. Trenton Gas & Elec. Co., 233 S.W. 241; Morris v. L. & P. Co., 258 S.W. 431; Knoles v. Bell Tel. Co., 265 S.W. 1011. (d) The undisputed evidence shows that the death of plaintiff's husband may have occurred from three or four causes. For only one of these causes could the Bichler Company be held liable. The burden rested upon plaintiff to show, by the greater weight of the evidence, the cause of the death of her husband, was due to the negligence of the Bichler Company, as charged in the petition. Biddlecom v. Grain Co., 178 S.W. 756; Hatchett v. United Rys. Co., 175 S.W. 881; Warner v. Railway Co., 178 Mo. 125; Coin v. Lounge Co., 222 Mo. 488. (2) The court erred in refusing to give instructions marked C and D, as requested by defendant Bichler Company. By refusing to give them the court declined to submit the defense of contributory negligence, which is an issue raised in this defendant's answer and is supported by evidence. (3) The court erred in refusing to give instruction marked E as requested by defendant Bichler Company. By refusing to give this instruction the court declined to submit the question of liability of the Bichler Company on account of its being an independent contractor. Heizer v. Mfg. Co., 110 Mo. 612; Curtain v. Somerset, 140 Pa. 70; Marvin Safe Co. v. Ward, 46 N. J. 19; First Presbyterian Cong. v. Smith, 163 Pa. 561; Losee v. Clut, 51 N.Y. 494, 10 Am. Rep. 338; Bragdon v. Perkins-Campbell Co., 87 F. 109; Fitzmaurice v. Falian, 147 Pa. 199; Albany v. Cunlif, 2 N.Y. 155.

Strop & Silverman and Chas. H. Wayer for respondent.

(1) There was no error in overruling the demurrers offered by all of the defendants. (a) There was substantial evidence that deceased was in contact with the guy wire when he was killed that question was fairly submitted to the jury, and is finally settled by the verdict. (b) Deceased was not guilty of contributory negligence as a matter of law. Hill v. Union E. L. & P. Co., 260 Mo. 43; Von Treba v. Laclede Gaslight Co., 209 Mo. 662; Trout v. Laclede Gaslight Co., 151 Mo.App. 227; Hickman v. Union E. L. & P. Co., 226 S.W. 570. (2) The cause of the death was the negligent act of the defendant Bichler Company in placing the guy wire, without a strainer-insulator in it, on the pole of the defendant Railway Company, the negligent act of the defendant Dairy Company in knowingly maintaining the wire in that condition on the pole of the defendant Railway Company, and the negligence of the defendant Railway Company in permitting the wire to remain in that condition on said pole, the negligent act of each of the defendants concurring with the negligent acts of the other defendants; under such circumstances, the negligent act of each defendant is, in law, the proximate cause of the injury. Shafir v. Sieben, 233 S.W. 419; Buckner v. Horse & Mule Co., 221 Mo. 710; Obermeyer v. Chair Co., 229...