Tate v. Western Union Telegraph Co.

• Decision Date: 20 August 1936
• Parties: Lena Tate v. The Western Union Telegraph Company, a Corporation, and August Moeckli, Appellants
• Court: Missouri Supreme Court

96 S.W.2d 364

339 Mo. 262

Lena Tate v. The Western Union Telegraph Company, a Corporation, and August Moeckli, Appellants

Supreme Court of Missouri

August 20, 1936

Appeal from Circuit Court of City of St. Louis; Hon. John Joynt, Judge.

Affirmed (upon condition).

Jones Hocker, Gladney & Jones for appellants;

Francis R. Stark of counsel.

(1) The record makes no legal case for the plaintiff, and the court should so hold and reverse the judgment outright. Sexton v. Met. St. Ry. Co., 245 Mo. 254, 149 S.W. 21; Chittick v. Transit Co., 224 Pa. St. 13, 73 A. 4, 22 L. R. A. (N. S.) 1073; Nugent v. Milling Co., 131 Mo. 241, 33 S.W. 428; Roseman v. United Rys. Co., 251 S.W. 104. (2) The verdict is in the teeth of the physical facts and natural laws operating at the time of the occurrence in question, and should be reversed. Sexton v Met. St. Ry. Co., 245 Mo. 254, 149 S.W. 21; Chittick v. Transit Co., 224 Pa. St. 13, 73 A. 4, 22 L. R. A. (N. S.) 1073; Nugent v. Milling Co., 131 Mo. 241, 33 S.W. 428; Roseman v. United Rys. Co., 251 S.W. 104; Spohn v. Ry. Co., 87 Mo. 84; Clark v. Atchison & Eastern Bridge Co., 333 Mo. 728, 62 S.W.2d 1081. (3) The verdict, considering the most unfavorable view of plaintiff's injuries, is so grossly excessive as to require a new trial. Partello v. Railroad Co., 217 Mo. 645, 117 S.W. 1138; Chlanda v. Railroad Co., 213 Mo. 244, 112 S.W. 249; Adams v. Ry. Co., 100 Mo. 555, 12 S.W. 637. (4) After remittitur, the judgment is so grossly excessive as to require a further substantial remittitur. Carpenter v. Wabash, 335 Mo. 130, 71 S.W.2d 1071; Shuff v. Kansas City, 221 Mo.App. 505, 282 S.W. 128.

Mark D. Eagleton and Moser, Marsalek & Dearing for respondent.

(1) There was sufficient evidence, both direct and circumstantial, to support the jury's finding that the plaintiff suffered an electric shock and injuries as the result of the defendants' act in permitting the telegraph wire to fall across and come in contact with the high-voltage power wire and the plaintiff's porch. Tate v. Western Union Tel. Co., 76 S.W.2d 1083; Dakan v. Mercantile Co., 197 Mo. 238; Frese v. Wells, 40 S.W.2d 652; Laughlin v. Ry. Co., 275 Mo. 459. (2) It was not incumbent on plaintiff to prove her case by direct evidence. The evidence is sufficient in that it shows a combination of facts and circumstances from which the jury, as reasonable and fairminded men, were justified in drawing the conclusion that the injury occurred in the manner alleged by plaintiff. "It is sufficient if the evidence be such as indicates, with reasonable probability, the truth of the charge that it was so produced. That such a finding is justifiable is supported by all human probabilities and experience." Morrow v. Mo. Gas & Elec. Service Co., 315 Mo. 385; Staggs v. Gotham Min. & Mill Co., 199 S.W. 717; Collinsworth v. Zinc Co., 260 Mo. 703; Oborn v. Nelson, 141 Mo.App. 434. (3) It is not true, as defendants assert, that the testimony of plaintiff's witness, F. W. L. Peebles, was contrary to known scientific facts or human experience. To a certain extent he is corroborated by testimony offered by the defendants. The weight and credit to be accorded his statements was a question for the jury. Myers v. City of Independence, 189 S.W. 820; Morrow v. Mo. Gas. & E. Co., 315 Mo. 382; Fetter v. Fid. & Cas. Co., 174 Mo. 266; MacDonald v. Railroad Co., 219 Mo. 483; Inman v. United Rys. Co., 157 Mo.App. 176. (4) The deposition of the defendant Moeckli, which was given, under oath, in this suit, previous to the trial, constituted substantive proof of the facts therein stated. Pulitzer v. Chapman, 85 S.W.2d 410; Berry v. Peacock Coal & Dev. Co., 253 S.W. 456.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

The Western Union Telegraph Company and August Moeckli, its servant, appeal from a judgment awarding Lena Tate $ 17,500 damages for an alleged electric shock and resultant injuries received on October 1, 1926, when a message wire of the telegraph company came in contact with high tension wires of the Union Electric Light & Power Company. The decision on the first appeal is reported in 336 Mo. 82, 76 S.W.2d 1080.

The defendants contend plaintiff failed to make a submissible case in that (1) the physical facts demonstrate it was impossible for the telegraph wire to have been in contact with the high tension wire and the porch, mentioned in evidence, of plaintiff's flat, so as to afford a means whereby plaintiff might suffer an electrical shock; (2) that it is impossible to conceive of electric current being transmitted from plaintiff's said porch to where plaintiff testified she received the shock in her kitchen; and (3) that it is inconceivable that a current passing over the kitchen floor might have affected plaintiff standing upon it. The contentions call for an examination of the physical facts established by the testimony and exhibits, drawn to scale, showing a plat and the elevation of the structures involved, together with the natural and reasonable inferences arising therefrom, viewed in the light most favorable to plaintiff. [Tash v. St. Louis-S. F. Ry. Co., 335 Mo. 1148, 1159(1), 76 S.W.2d 690, 695(2); Johnson v. Chicago & E. I. Ry. Co., 334 Mo. 22, 30(1), 64 S.W.2d 674, 677(1-3); Gratoit v. Missouri Pac. Ry. Co., 116 Mo. 450, 466, 21 S.W. 1094, 1098.]

Plaintiff lived at No. 16 Sarah Street, St. Louis, Missouri, in one of the downstairs apartments of a two story four apartment building. Sarah Street runs north and south. The rear of the flat is seventy-six feet six inches east of the east line of Sarah Street. Plaintiff's back porch, made of concrete and eight feet wide, extends three feet six inches east and the steps, having iron handrails on either side, an additional four feet two inches east, a total distance of eighty-four feet five inches east of Sarah Street. The south wall of said porch appears to be approximately eight inches north of the south wall of said flat, and the handrails on the steps appear to reach a height of seven feet. An east and west public alley is immediately south of plaintiff's apartment. Proceeding south across the alley from the flat, it is four feet six inches to the center line of a pole supporting a three phase 13,200 volt uninsulated (insulation being useless) electric high tension circuit of the Union Electric Company, a corporation, and an additional fifteen feet three inches to the north wall of the Brauer Bros. building, a building across the alley from plaintiff's flat and extending eighteen feet nine inches east of the east wall of said flat. The exact position of said pole with reference to the east wall of said flat is not shown. Crossarms extending southward from the pole support the high tension line forty-three feet above the surface of the alley and approximately seven and one-half feet south of the south line of the porch. The top of the coping on the Brauer building is fifty feet above the alley and the coping extends approximately two to three feet above the roof of the Brauer building. At the southeast corner of the Brauer building is a chimney, extending approximately nine to ten feet above the coping. Twenty-four feet five inches south of the north wall of the Brauer building is the north wall of a structure housing elevator equipment and described as a "penthouse," its east wall being imposed upon the wall of the Brauer building. The penthouse is approximately nine to ten feet square and eight feet in height.

Some time previous to the accident, defendant telegraph company had moved one of its offices in the Sarah Street neighborhood. This made a span of iron message wire useless. This wire extended from a stub pole fifteen feet high and eighty feet east of the east line of Sarah Street to a point on the chimney or on the penthouse on the Brauer building, the pole being 125 feet ten inches north of the north wall of the Brauer building. After the explosion hereinafter mentioned, a severed piece of the message wire, estimated close to twenty feet in length was found in the alley.

Defendant telegraph company sent a crew to take down the message wire on the morning of October 1, 1926. Defendant Moeckli was one of the crew. He went to the roof of the Brauer building while a lineman, Ray Whitaker, ascended the stub pole. Moeckli took a rope with him, it being the intention to have Moeckli cut the message wire and attach the rope, it being a nonconductor, and for Whitaker to keep the wire and rope taut and pull in the message wire so as to avoid contact between said message wire and the high tension wires, and thus lower the message wire. When Moeckli cut the message wire he slacked his arm on account of the strain and received a slight shock, whereupon he released the wire. There was a report and a flash. Plaintiff had just finished cleaning her kitchen floor with a wet mop and was reaching for a broom when the explosion and flash occurred. She testified that there appeared to be a dash of flames, that she received a shock, fell to the floor and received injuries. Mrs. Neff, who occupied the upstairs apartment above plaintiff, testified that she was washing dishes at the time of the explosion and had some of her dishes broken; that she hurried downstairs; and both she and plaintiff testified that they saw the wire lying on plaintiff's steps across the iron railing immediately after the explosion.

Assuming the message wire remained attached to the stub pole, do the facts outlined above demonstrate it to be a physical impossibility for said message wire to have come in contact with one of the high tension wires and the railing of plaintiff's porch and thus preclude the establishment of said portion of the electric circuit by means of which plaintiff claims to have received an electric...