Strack v. Missouri & K. Telephone Co.

• Decision Date: 23 December 1908
• Citation: 216 Mo. 601,116 S.W. 526
• Court: Missouri Supreme Court
• Parties: STRACK et al. v. MISSOURI & K. TELEPHONE CO. et al.

116 S.W. 526

216 Mo. 601

STRACK et al. v. MISSOURI & K. TELEPHONE CO. et al.

Supreme Court of Missouri, Division No. 1.

December 23, 1908.

Rehearing Denied February 25, 1909.

1. ELECTRICITY (§ 16)—INJURIES INCIDENT TO PRODUCTION—NEGLIGENCE.

While it is negligence on the part of a telephone company or a street railroad company to allow the telephone wires to remain strung on the poles of the railroad company parallel with and about 15 feet from the railroad trolley wires after the public use of the telephone wires has been discontinued, if they are perceptibly an inconvenience, or a source of danger, which will create a liability for such negligence, measured by the consequences to be reasonably anticipated therefrom, yet an injury resulting from the breaking of the telephone wire during a violent storm, its blowing across the trolley wire, and becoming highly charged, is not one that could reasonably be foreseen.

2. ELECTRICITY (§ 19)—INJURIES INCIDENT TO PRODUCTION—ACTIONS—EVIDENCE.

Evidence, in an action against a telephone company and a street railroad company for the death of a child, caused by the breaking during a violent storm of a telephone wire strung on the poles of the railroad company, and the blowing of the wire across a trolley wire, causing the telephone wire to become highly charged with electricity, held not to show notice to the telephone company or the railroad company of the dangerous condition in time to have removed the wire before the accident.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Louis Strack and Rosa Strack against the Missouri & Kansas Telephone Company and the Metropolitan Street Railway Company. Judgment for plaintiffs, and defendants appeal. Reversed.

Harkless, Crysler & Histed, for appellant Missouri & K. Telephone Co. John H. Lucas & Ben T. Hardin, for appellant Metropolitan St. Ry. Co. Hatch & Middlebrook and Reed, Yates, Mastin & Harvey, for respondents.

VALLIANT, P. J.

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, Rev. St. 1899 (Ann. St. 1906, pp. 1644, 1646), 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 50 volts; in those of the other it is necessarily strong and more dangerous, being about 500 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 built in 1900 by the Heim Bros., 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 "Fred Heim Brewery Company," but they were both really the property of the two Heim brothers. The Heim Bros., 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 Bros. 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 15 feet from them.

Late in the afternoon of July 24, 1904, a severe windstorm passed over that part of the city, and by its force one of these telephone wires was broken in two places, and the broken piece was thrown across the trolley wires; one end of it as it lay across the trolley wires hung down, but not far enough to touch a person on the ground; the other end came down to or near the ground, and the wire, being naked and coming in contact with the trolley wires, became heavily charged with electricity. On the next morning about 6 o'clock the plaintiffs sent their five year old child on an errand which led him along Montgall avenue, and a few minutes later the child was found lying dead near the trolley pole, his body in contact with the wire.

So far the facts are undisputed. What dispute there may be relates to the question of notice to the defendants of the dangerous condition of the wire after the storm had broken it and blown it across the trolley wires. We will consider the evidence on that subject hereinafter. The case was given to the jury on instructions that authorized a verdict against the telephone company if they should find that the telephone wire belonged to the telephone company, and that the telephone company knew the condition of the wire at the time of the accident, or if the condition had continued long enough for the telephone company by the exercise of ordinary care to have discovered it a sufficient length of time before the accident to have removed it.

An instruction authorized a verdict against the railroad company if it knew the condition, or by the exercise of ordinary care would have known it, a sufficient length of time before the accident to remove the wire. There was a verdict against both defendants for $5,000, and each defendant took an appeal.

1. There is nothing to indicate negligence on the part of either of the defendants in the matter of the stringing of the telephone wires on the poles of the railroad company or installing the telephonic connection between the brewery and the power house. City authorities often require a corporation to whom it grants the privilege of erecting poles in the street to allow other concerns to string its public utility wires on the poles, and that is not an unusual regulation, and in this particular that which a concern may be required to do it may do by agreement. Nevertheless the stringing of wires in a public street, even for telephone purposes, is liable to cause some inconvenience or possible danger, and it is allowed only on the idea that it contributes to the public convenience. When, however, the public use of the wire has been discontinued, there is no excuse for allowing it to remain, and therefore, to the extent that it is perceptibly an inconvenience or danger, the maintaining of it is negligence. But the liability for such negligence is measured by the consequence that could reasonably be anticipated to follow from the negligent act. The law on this point is well stated in Am. Brewing Association v. Talbot, 141 Mo....