Solomon v. Moberly Light & Power Co.
| Decision Date | 13 May 1924 |
| Docket Number | No. 23968.,23968. |
| Citation | 262 S.W. 367 |
| Parties | SOLOMON v. MOBERLY LIGHT & POWER CO. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Randolph County; A. W. Walker, Judge.
Action by Velna M. Solomon against the Moberly Light & Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Willard P. Cave and Hunter & Chamier, all of Moberly, for appellant.
Redick O'Bryan, of Moberly and John T. Barker, of Kansas City, for respondent.
Statement.
On August 31, 1921, plaintiff filed in the circuit court of Randolph county, Mo., her petition against the Moberly Light & Power Company to recover damages in the sum of $10,000 on account of the electroduction and death of her husband, Harry Solomon, through the alleged negligence of said defendant company. The case was tried in above county before a jury, and, on February 21, 1922, a verdict was returned in favor of plaintiff for the sum of $10,000, and judgment was entered accordingly. Motions for a new trial and in arrest of judgment were filed, overruled, and the cause duly appealed by it to this court.
Plaintiff's petition contained three counts, but, at the conclusion of all the evidence, she was required by the court, at the instance of defendant, to elect on which count she would proceed to trial. She accordingly elected to stand on the third count, which charges, in substance, that on and prior to August 8, 1921, defendant was manufacturing and furnishing electricity for light and power to its customers at Moberly, Mo.; that it owns and operates in said city a system of wires strung on poles in the streets of said city, by which means electric current is carried over, upon, and through said streets from defendant's plant to its various customers as aforesaid, and maintains certain wires on poles, which wires run along and over, among others, Fulton avenue and North Ault street in said city, and on and to the garage of Oliver Ricker, at the residence of Mrs. Maude Moore, at 651 North Ault street in said city and state; that she was married to said Harry Solomon, on November 15, 1908, and continued to live with him as his wife until August 8, 1921, when he was killed as hereafter stated; that she is now his widow, and as such brings this suit; that on said 8th day of August, 1921, plaintiff's said husband was lawfully on the premises described as aforesaid, and used by said Ricker as a garage; that while in the latter, and in the exercise of due care, he came in contact with the said wires of defendant; that, while holding an electric light attached to a long cord, he was shocked, burned, and killed as follows, to wit: That on said date, and for a long time prior thereto, defendant maintained and operated two sets of electric wires, one with a heavy voltage and one with a less voltage; that the two wires carrying the different voltage were maintained on the same poles and in passing over Ault street, said wires were maintained through certain trees along the side of said street; that by reason of said wires running through said trees, the limbs thereof came in contact with said wires, and the insulation on the latter became worn and defective, so that the wire containing the heavy voltage, on account of such defective insulation, came in contact with the wire containing the less voltage, which had also lost its insulation as aforesaid, and as a consequence the wire containing the heavy voltage, in crossing the wire with the less voltage, or the limbs coming in contact with said wires communicated such heavy voltage to the other wire; that on said August 8, 1921, the said Mrs. Maude Moore was a customer of the defendant, and the latter furnished electric lights for the said Ricker's garage; that defendant's wires entered said garage, and it had caused to be used a long extension cord with an electric light bulb at the end of same, so that it could be moved back and forth throughout said garage as desired; that plaintiff's husband had frequently been in said garage, and knew the use that was made of said extension cord and electric light bulb; that plaintiff's husband knew said electric light, while so used in said garage, carried a small voltage, and was not dangerous to use; that he did not know said wire had become crossed with one of defendant's other wires carrying a heavy voltage; that on the above occasion plaintiff's husband went into said garage at about 9:30 o'clock in the evening, and, seeing said extension cord with the light attached thereto lying upon the floor, and without knowledge on his part that the same was dangerous as aforesaid, picked it up for the purpose of using same, and a heavy voltage of electricity, which was coming through said cord, without the knowledge of plaintiff's husband, suddenly shocked, burned, and killed him; that plaintiff's husband came to his death on account of the negligence and carelessness of the defendant as heretofore set forth, etc.
Defendant's first amended answer admits that it is a corporation and denies every other allegation in plaintiff's petition. It pleads contributory negligence upon the part of plaintiff's husband, and further alleges that the wiring in the Ricker garage was defective and dangerous, and was not installed by defendant, but by said Oliver Ricker in a careless, negligent, and defective manner for his own use in lighting said garage, all of which dangerous and negligent construction was fully known by said Harry Solomon. It further alleges that all electrical wiring done by it ceased upon the delivery of current at the point of entry to a customer's premises, and does not extend to the wiring inside of any inclosures, dwellings, or garages, which are constructed by the respective owners or occupants of said building, dwelling or garage; that the same are not subject to the control of defendant company, etc.
The reply is a general denial of the new matter pleaded in said answer. As appellant is insisting, that its demurrer to the evidence at the conclusion of the whole case should have been sustained, it becomes necessary to determine, whether plaintiff produced substantial testimony on the merits of the controversy tending to show that she was entitled to recover in this action. It is appropriate, however, to say in this connection that it is not the province of this court to pass upon the weight of the evidence.
The plaintiff offered substantial testimony tending to show that defendant, on and prior to August 8, 1921, was engaged in manufacturing and furnishing electricity for light and power to its customers and consumers in Moberly, Mo.; that it, owns and operates in said city a system of wires strung on poles erected in the streets of said city, by which means electric current is carried over and through said streets from defendant's plant to its various customers as aforesaid; that it maintained certain wires on poles which ran along and over Fulton avenue and North Ault street, as well as other streets in said city, to the meter at the residence of Mrs. Maude Moore, at 651 North Ault street in said city. Mrs. Moore testified on cross-examination, that defendant had nothing to do with the wiring of the Ricker garage; that her brother, Oliver Ricker, and Mr. Dent did the wiring in the garage about one year before the date of trial. On cross-examination of L. C. Sevier, a witness for defendant, it was developed that the meter is installed in the house to measure the current the customer uses; that the company wires down to the meter, and the customer can de what he pleases with the current beyond the meter; that these meters are read once every month.
The evidence shows that there are 10 trees on the east side of Ault street in the 700 block, and that the wires heretofore mentioned ran through these trees. This had been true for several years before deceased was killed. Ault street runs north and south and the Ricker house was located about the center of the 600 block. The plaintiff and deceased lived at 641 North Ault street, near the Ricker home in the 600 block. The 700 block is north of the latter, and the trees through which the wires ran were on the east side of same. There were two wires on a pole in block 600, where Ricker lived, that furnished light. There were four wires in the 700 block on the cross-arms. It appears from the evidence that the voltage of the two outside wires in the 700 block is 2 300, while the two inside wires of said block carry a voltage of 110 for lights in residences. The wires carrying a voltage of 2,300 run to the transformers, and the voltage is then reduced from 2,300 to 110 for residence lights. The 2,300 is called the primary wire and the 110 a secondary wire. The condition of wires as to insulation, running through trees, and coming in contact with limbs thereof is set out in appellant's statement of the facts as follows:
Mr. Guthrie testified that in passing along Ault street in the 700 block that he had noticed "a flickering sensation upon the trees during the night" He said "probably the wind would be blowing or storming, and a sensation would be up in those trees, like you touched two electric wires together," for a year or two before the death of Solo mon. He also said that during this time the limbs of those trees could touch all four of the wires in that block, in case the limbs for electric lights. There was a conflict in would get broken and fall over; that these were green, growing trees; that the wires windy they would swing back and forth, and that he had observed the wires, prior to the death of Solomon, swing and touch the trees was an electrician, was familiar with the between the poles.
The record shows that there were places where the insulation was off for a distance of from 1 inch to 14 or 16 inches on primary and secondary wires in the 700 block on Ault street, where they ran through the trees, and at a number of these places the wires were bare, and there were also places on the...
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