Sudmeyer v. United Rys. Co. of St.

• Decision Date: 18 February 1921
• Docket Number: No. 21153.,21153.
• Parties: SUDMEYER v. UNITED RYS. CO. OF ST.
• Court: Missouri Supreme Court

228 S.W. 64

SUDMEYER v. UNITED RYS. CO. OF ST.

No. 21153.

Supreme Court of Missouri, in Banc.

February 18, 1921.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

Action by Ida C. Sudmeyer against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and Albert D. Nortoni, all of St. Louis, for appellant.

Wilfley, McIntyre, Nardin & Nelson, and Wendell Berry, all of St. Louis, for respondent.

SMALL, C. I.

Appeal from the circuit court of the city of St. Louis. Suit for death of husband. The petition alleges that plaintiff's husband, John H. Sudmeyer, on September 4, 1917, at about 8:30 p.m., while in due course of his employment as a lineman of defendant was directed and required by the defendant to go up on the top of a tower of one of defendant's automobile repair trucks for the purpose of repairing the trolley wire of defendant's west-bound car line, at a point about 200 feet west of the intersection of Manchester avenue and Kingshighway, in the city of St. Louis, and that while so employed he received an electric shock from a sub-feed wire which supported as well as supplied the trolley wire with electricity; that said shock caused his death, and was occasioned by the carelessness of defendant "in the construction, maintenance, and operation of said sub-feed wire, said automobile truck, and said trolley wire at the time and place aforesaid."

The answer, besides a general denial, pleaded assumption of risk and contributory negligence by decedent.

The reply put the new matter of the answer in issue.

The principal controversy in the case is whether the defendant negligently failed to maintain the insulation on the sub-feed wire in good condition, and, if so, whether its failure so to do was the proximate cause of the injury.

The evidence shows that the plaintiff's husband and his helper were employed as trouble repair men for the defendant, whose duty it was, among other things, to respond to any notification that the wires of defendant were broken or needed repairing, and that shortly before 8:30 p. m. on September 4, 1917, they received notice that the trolley wire over the south track of defendant's street railway on Kingshighway, which runs east and west, was broken at a point 200 feet west of Manchester avenue, which runs north and south; that they at once responded and went over to the place where the break was in the automobile repair truck of defendant used for that purpose. This truck had rubber ties and a movable wooden tower or platform upon it, which could be raised or lowered as might be necessary in order to reach and repair the trolley lines of defendant, which were about 20 feet from the ground. When they reached their destination, accompanied by the chauffeur, whose only duty was to drive and take care of the repair truck, they found the trolley wire had broken off about 10 inches east of the subfeed wire. These sub-feed wires were stretched across the street at intervals, from vole to pole, and connected with the trolley wire, not only to supply it with electricity, but to support and keep it in position. The sub-feed wires branched out from the main feed wire, which ran along the south side of the street suspended on the trolley poles. The main feed wire supplied the sub-feed wires with electricity, which was in turn inducted by them into the trolley wires for operating the defendant's cars. Both the main feed wire and the sub-feed wires were insulated, while the trolley wire itself was necessarily uninsulated. The voltage used in the sub-feed wires and the trolley wire was 550 volts. The broken trolley wire, when the repair party arrived, lay upon the street immediately under or near the place where it had broken off. They "pulled into the curb with the truck," Remer, the helper, testified, and "Mr. Sudmeyer picked up the wire, tied the rope on it, and I pulled it up to the pole, pulled it up and tied it to the pole—I mean the broken strand. It was down east of the feed wire." When Sudmeyer tied the rope to the end of the wire, he (Sudmeyer) threw the rope over the sub-feed wire, and Remer pulled it up across the feed wire, and thus raised the trolley wire up to its proper level, but somewhat too far north to meet the end of the trolley wire to which it was to be joined. They then moved the repair truck to a position in the street directly underneath the broken place, and both Sudmeyer and Remer went on top to the platform of the tower, and Sudmeyer endeavored to reach the broken strand tied to the rope, but it was too far north, and he told Remer to descend and get a hand line out of the truck. This was for the purpose of throwing it over this broken wire and pulling it into its place. Just as Remer got down and was standing on the back step of the truck reaching for the hand line, Sudmeyer "hollered, `Oh !'" and fell with his face to the east to the street below, and was so injured that he died shortly thereafter without regaining consciousness. At the time Remer looked up and saw a flash, which he described as follows:

"Well, it was a big blue flash. That is all I could say. I had seen flashes of electricity before. I am sure it was an electric flash. It was a blue light over the tower. The flash showed all over each side of the tower—flashed down like an arc lamp. Don't know where it came from."

The witness continued and said that the trolley wire and sub-feed wire are connected with a copper sleeve which is clamped firmly onto both wires, so as to make a solid connection.

All the evidence showed that it was not customary to use rubber gloves when repairing the trolley wire and standing on the platform or tower of the trouble "wagon or truck; that the bare trolley wire and the bare sub-feed wires can be handled without danger and are customarily so handled while on this truck, because its rubber wheels and wooden tower insulate it, so that no current would pass into a person touching the bare trolley wire or bare and uninsulated sub-feed wire while standing on the tower doing repair work.

In addition to Remer, Burton, a colored man was standing on the sidewalk nearby and saw the accident. His testimony was rather confused, but it may be gathered therefrom that he testified that the electricity came from the end of the trolley wire which still remained fastened to the sub-feed wire and which projected out about 10 inches east of the feed wire. He says that while Remer was down getting the hand line Sudmeyer grabbed the feed wire, the blue flame came out of the end of the trolley wire still in place, and Sudmeyer, with a cry, fell to the ground. He was close to the feed wire—right up to it. Could not tell which hand he grabbed it with. On cross-examination the witness repeated that he saw Sudmeyer reach for the broken trolley wire, but he could not reach it; but witness does not say whether this was before or after Remer went down to get the hand line.

Remer and Burton are the only witnesses to the accident.

Evans, a brother-in-law of the deceased, testified for the plaintiff that he was a lineman, trouble man; did line work for 10 years, the entire time he was' employed by defendant, the same kind of work Sudmeyer was engaged in; witness had a great deal of experience in repairing lines of wire; asked, in substance, the question whether a man, on a dry night, standing on top of a trouble truck, coming in contact with an uninsulated feed wire near which the trolley is broken, could receive a shock, replied "Yes;" that this might be caused: First, by the man on the platform of the trouble wagon standing on a piece of span wire or trolley wire which connected with the ground; or, second, if there was a circuit breaker between the point of the break and the next feed span or wires down on the ground between that point and the next feed span. He further testifed that he had touched the bare trolley wire while on these trouble wagons, and also the sub-feed wire, but whether the sub-feed wire was insulated at the time or not he could not recall, but he would have no hesitation in touching it at places where it was uninsulated, because it and the trolley wire are, in effect, one and the same wire by reason of their connection, and, if you could safely touch one, you could safely touch the other. If you should touch the broken trolley wire and the part thereof still in place at the same time, and the broken piece was grounded, you would get a shock, that is, if it was grounded between the break and the next feed span; otherwise not, absolutely, If the broken wire was properly picked up and tied by Sudmeyer, it was not grounded in that circuit, and the witness thought Sudmeyer knew how to pick it up properly. Anyhow, it was part of his duty to pick it up and put it in place. If Sudmeyer took hold of the uninsulated feed wire, that would not make a flash of electricity come out of the end of the trolley wire still attached to the sub-feed wire. But, if he got a shock in touching the uninsulated sub-feed wire, that indicated there was a ground on another wire with which he came in contact. If his body were perfectly insulated from the ground, he would not get a shock from touching the defectively insulated sub-feed wire. But, even if there was some connection between Sudmeyer's body and the ground, and he should take hold of a sub-feed wire which was insulated, he would receive no shock.

There was no evidence on the part of the plaintiff tending to show that there was a circuit breaker or wires down between the point of break and the next feed span. But the defendant offered affirmative testimony that there was no such circuit breaker or grounded wires.

Several experts testified for defendant to the same effect as plaintiff's witness Evans, that Sudmeyer's body must also have been grounded, i. e., touching something metallic, as a wire, which connected with the ground, in order to...