Strack v. Missouri and Kansas Telephone Co.
| Decision Date | 25 February 1909 |
| Citation | 116 S.W. 526,216 Mo. 601 |
| Parties | LOUIS STRACK and ROSA STRACK v. MISSOURI and KANSAS TELEPHONE COMPANY and METROPOLITAN STREET RAILWAY COMPANY, Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. John G. Park, Judge.
Reversed.
Harkless Crysler & Histed for appellant Missouri and Kansas Telephone Company.
(1) The court erred in submitting to the jury the issue of actual knowledge by the Telephone Company of the existence of the break in the wire, which issue was wholly unsupported by proof. Wojtylak v. Coal Co., 188 Mo. 260; American Storage Co. v. Railroad, 120 Mo.App. 410; Chambers v. Railroad, 111 Mo.App. 609; Ward v Transfer & Storage Co., 119 Mo.App. 83. (2) It appearing in the evidence that the wire was disconnected and therefore carrying no current and that it formed no part of the system of the defendant telephone company, the rules of duty which obtain in the case of a live wire forming a part of the telephone system do not apply. (3) It appearing that this wire was out of use and remote from contact with the trolley wire and was securely and safely attached to the pole until at least 5:30 o'clock p. m. on the day before, negligence cannot be ascribed to the telephone company in failing to inspect and provide against the accidental breaking of said wire, by reason of the severe and vehement wind storm and the subsequent connection of the wire with the trolley wire. Fuchs v. St. Louis, 167 Mo. 620; Chandler v. Gas Co., 174 Mo. 329; Beasley v. Transfer Co., 148 Mo. 413. (4) The defendant Telephone Company had a reasonable time after the telephone wire came in contact with the trolley wire within which to remove the same. Lamport v Laclede Gas & Light Co., 14 Mo.App. 393; Dodge v. Manufacturers Coal & Coke Co., 115 Mo.App. 501; Abbott v. Mining Co., 112 Mo.App. 550. (5) The court erred in holding that the jury might determine from the evidence that the wire had remained in a broken condition for such length of time that the defendant telephone company should have known of its condition.
John H. Lucas, Ben T. Hardin and C. S. Palmer for appellant Metropolitan Street Railway Company.
The peremptory instruction in favor of this defendant should have been given. American Brewing Association v. Talbot, 141 Mo. 683; Fuchs v. St. Louis, 167 Mo. 645; Webb's Pollock on Torts (Enlarged Am. Ed.), 45, 46; Bishop on Non Contract Law, sec. 437; Goodrich v. Railroad, 152 Mo. 222.
P. E. Hatch and Reed, Yates, Mastin & Harvey for respondent.
(1) The court committed no error in submitting to the jury the issue of actual knowledge by the Telephone Company of the existence of the break in the wire. Such issue was supported by substantial evidence. Where there is any substantial evidence, however slight, in support of an issue, it is the duty of the court to submit such issue to the jury. McManus v. Railroad, 118 Mo.App. 161; Knapp v. Hanley, 108 Mo.App. 353; May v. Crawford, 150 Mo. 504; Baird v. Railroad, 146 Mo. 265; Holloway v. Tel. Co., 195 Mo. 265; Cannon v. Gas Co., 145 Mo. 513. (2) It appearing from the evidence that the wire in question, after the telephone which it connected was taken out and no further use remained for the wire, was left hanging on the poles of the Metropolitan Street Railway Company, above and in proximity to the trolley wires of the railway company, carrying a heavy current of electricity, and that the wire in question was uninsulated, the defendant Telephone Company would be governed by rules of duty equally as strict as those applying to a live telephone wire not hanging in such dangerous proximity. Tel. and Tel. Co. v. McTyer, 34 So. 1020, 137 Ala. 601; Thompson on Electricity, sec. 78; U. S. Electric Co. v. Shelton (Tenn.), 14 S.W. 863; Gerandi v. Elect. Imp. Co., 107 Cal. 120; Geismann v. Mo. Edison Light Co., 173 Mo. 654; Gannon v. Laclede Co., 145 Mo. 502. (3) It appearing from the evidence that the wire in question was so hung that an ordinary storm might blow it over the trolley wires, that it was put up in 1900, that there was no earthly use for it on the poles after the telephone to which it led was no longer in use had been taken out; that this wire was seen to be down, somewhere between 4:30 and 5:30 p. m. of the afternoon by several persons; that it was on a much-traveled street; that it blew down and across the trolley wires in a storm that was not extraordinary or unusual; the Telephone Company can certainly be charged with negligence, under all the circumstances in the case. Gannon v. Gas Co., 145 Mo. 535; Dean v. Railroad, 199 Mo. 408; McMahon v. Express Co., 132 Mo. 641; Woods v. Railroad, 188 Mo. 229; Hovarka v. Railroad, 191 Mo. 441; Wencker v. Railroad, 169 Mo. 592. (4) There was no error committed by the trial court in submitting to jury the question of whether or not the defendant Telephone Company could have, by the exercise of ordinary care, discovered the position and condition of said wire, a sufficient length of time before the injuries, under all the circumstances in the case, and removed said wire. What is a reasonable time depends upon the circumstances of each case. Klockenbrink v. Railroad, 172 Mo. 678; Hiller v. Town of Canton, 112 Mo.App. 322; Goodman v. Kahoka, 100 Mo.App. 278; Young v. Webb City, 150 Mo. 333; McKissick v. St. Louis, 154 Mo. 588; Beauvais v. St. Louis, 169 Mo. 500; Carrington v. St. Louis, 89 Mo. 208. (5) The court committed no error in refusing the request of the Telephone Company for a verdict in its favor; on the contrary it would have been a grievous error against plaintiffs if it had granted such a request. Where there is substantial evidence on an issue, that issue must be submitted to the jury. Knapp v. Hanley, 108 Mo.App. 353; McManus v. Railroad, 118 Mo.App. 161; May v. Crawford, 150 Mo. 504; Baird v. Railroad, 146 Mo. 265; Hollweg v. Tel. Co., 195 Mo. 149; Cleary v. Railroad, 108 Mo.App. 433. (6) The appellate court will not pass upon the weight of the evidence in an action at law where there is any substantial evidence to sustain the verdict. McManus v. Railroad, 102 Mo.App. 211; Blanton v. Dold, 109 Mo. 64; State v. Jacobs, 152 Mo. 565; Hovarka v. Railroad, 191 Mo. 452; Nephler v. Woodward, 200 Mo. 179. (7) The demurrer of the Metropolitan Street Railway Company was properly overruled. Its liability does not depend on its ownership of the wire. Daltry v. Media Elec. Light Co., 208 Pa. St. 403; Hebert v. Lake Charles Ice & L. Co., 111 La. Ann. 522. Nor was the storm sufficiently unusual to prevent the submission of the question of negligence to the jury. Hebert v. Lake Charles, etc., Co., supra.
Plaintiffs are the father and mother of a five -- year-old child that was killed on the 25th day of June, 1904, by coming in contact with a wire highly charged with electricity hanging down from a pole in a public street in Kansas City. This suit is brought under sections 2865 and 2866, Revised Statutes 1899, the petition alleging that the accident occurred because of the negligence of the two defendants.
As indicated by their names respectively, one of the defendants is a telephone company, the other a street railroad company, each maintaining wires in the public streets charged with electricity. In the wires of the one the electric current is comparatively mild and harmless, being about fifty volts; in those of the other it is necessarily strong and more dangerous, being about five hundred volts.
The street railroad, or that portion of it to which our attention is drawn, is a double track, extending from Guinotte avenue on the south along Montgall avenue north to Nicholson avenue. This road was was built in 1900 by the Heim Brothers who at that time owned a brewery on Guinotte avenue. The power house of the railroad was located at the corner of Nicholson and Montgall avenues. The railroad was built, owned and operated by a corporation called the East Side Electric Railway Company, and the brewery by a corporation called the Ferd Heim Brewery Company, but they were both really the property of the two Heim Brothers. The Heim Brothers then owning and operating both the brewery and the railroad, contracted with the Telephone Company for telephone connection between the brewery and the power house. This was accomplished by the Telephone Company stringing wires along its own poles from the brewery to Montgall avenue, and thence to the power house along the trolley poles of the railroad company parallel with the trolley wires and installing the telephone in the power house. At that time the brewery company had a private telephone exchange in the office of the brewery, and the installation of the telephones in the power house put it in connection with the brewery office.
The defendant, the Metropolitan Street Railway Company, bought this railroad of the Heim Brothers in July, 1901, and the telephone was continued in use until July, 1903, when it was disconnected and taken out, but the wires were allowed to remain strung on the trolley poles until this accident occurred, July 25, 1904. These wires were not embraced in the Telephone Company's system of wires, they were used only to connect the brewery office and the power house, and when the disconnection was made in July, 1903, no use of them was made for any purpose, they were just left where they were and no notice taken of them. They were not insulated, they were naked wires about the size of a knitting needle. These telephone wires were not strung above the trolley wires, in such position that if they should break they would naturally fall down on the trolley wires, but were strung parallel with and about fifteen feet from them.
Late in the afternoon of July 24, 1904, a severe wind storm passed over that part of the city...
To continue reading
Request your trial