Tate v. Western Union Telegraph Co.

• Citation: 76 S.W.2d 1080,336 Mo. 82
• Parties: Lena Tate v. The Western Union Telegraph Company, a Corporation, and August Moeckli, Appellants
• Decision Date: 01 December 1934
• Court: Missouri Supreme Court

76 S.W.2d 1080

336 Mo. 82

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

Supreme Court of Missouri

December 1, 1934

Appeal from Circuit Court of City of St. Louis; Hon. H. A Hamilton, Judge.

Reversed and remanded.

Jones Hocker, Sullivan & Angert and Ralph T. Finley for appellants.

(1) The demurrers to the evidence should have been sustained because the evidence fails to show that the alleged injuries to the plaintiff were the proximate result of the negligence charged. Kennedy v. Construction Co., 291 S.W. 475 316 Mo. 791; Chittick v. Philadelphia Rapid Tr. Co., 224 Pa. 13, 73 A. 4; Perkins v. Wilcox, 294 Mo. 700, 242 S.W. 795; Ward v. Ely-Walker D. G. Co., 248 Mo. 348, 154 S.W. 478; Haley v. St. Louis Transit Co., 179 Mo. 30, 77 S.W. 731; Wilson v. Ry. Co., 129 Mo. 658, 108 S.W. 590; Hall v. New York Tel. Co., 214 N.Y. 49, 108 N.E. 182; Brush Elec. L. & P. Co. v. Lefevre, 93 Tex. 604, 57 S.W. 640; Phoenix L. & F. Co. v. Bennett, 8 Ariz. 314, 74 P. 48; Mitchell v. Ry. Co., 151 N.Y. 107, 45 N.E. 354; Ewing v. Ry. Co., 140 Pa. St. 40, 23 A. 340. The evidence wholly fails to show that the alleged injuries to the plaintiff were such as could reasonably and naturally have been anticipated by the defendants, and were the result of such an extraordinary and unusual occurrence that they cannot be said to have been the proximate results of the alleged negligence. Chittick v. Philadelphia Rapid Transit Co., 224 Pa. 13, 73 A. 6; Graney v. Ry. Co., 157 Mo. 666, 57 S.W. 276; Lowe v. Railroad Co., 265 Mo. 587, 178 S.W. 442; Hysell v. Swift, 78 Mo.App. 47; Fuchs v. St. Louis, 167 Mo. 620, 67 S.W. 610; Hohimer v. City Light & Traction Co., 262 S.W. 403, 218 Mo.App. 138; Strack v. Tel. Co., 116 S.W. 526; Railroad Co. v. Gelvin, 238 F. 14, L. R. A. 1917C, 983. (2) No recovery can be had for fright or mental shock, or injuries resulting therefrom, unless there be independent, actual, physical injuries not attributable to such fright or mental shock. Chittick v. Philadelphia Rapid Transit Co., 224 Pa. 13, 73 A. 4; Perkins v. Wilcox, 294 Mo. 700, 242 S.W. 975; McCardle v. Peck D. G. Co., 271 Mo. 120, 195 S.W. 1034; Porter v. St. Joseph Ry., etc., Co., 311 Mo. 71; Gibbons v. Wells, 293 S.W. 389. (3) The testimony of the witness F. W. L. Peebles is so contrary to the other testimony in the case, known scientific facts and human experience, that it should not be given credence as establishing the fact that the plaintiff was directly and physically injured by electricity entering her person. No court is bound by testimony which is contrary to all other facts in the case and to common knowledge of scientific facts. Sexton v. Met. Ry. Co., 149 S.W. 25; Nugent v. Kauffman Milling Co., 131 Mo. 253, 33 S.W. 428; Alexander v. Ry. Co., 289 Mo. 622; Thompson v. Pioneer Press Co., 37 Minn. 285, 33 N.W. 861; Graham v. Railroad Co., 143 Iowa 604, 119 N.W. 710; Flaherty v. Harrison, 98 Wis. 559, 74 N.W. 361; Waters-Pierce Oil Co. v. Van Eldersen, 137 F. 569. (4) The plaintiff's petition charges specific negligence. Kuhlman v. Water, Light & Transit Co., 307 Mo. 638; Morrow v. Mo. Gas & Elec. Service Co., 315 Mo. 388; Clark v. General Motor Car Co., 177 Mo.App. 623. It is reversible error to submit a case upon presumptive negligence or under the doctrine of res ipsa loquitur where either the petition pleads specific negligence, or the evidence shows, or the plaintiff relies upon, specific negligence. Allen v. Ry. Co., 294 S.W. 87; Kuhlman v. Water, Light & Transit Co., 307 Mo. 607; Pate v. Dumbold, 298 Mo. 435; Erlich v. Mittelberg, 299 Mo. 284.

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

(1) In ruling upon a demurrer offered at the close of the whole case, the court will accept as true all evidence in the record in plaintiff's favor, and will make every inference of fact in plaintiff's favor which a jury could, with any degree of propriety, draw therefrom. In ruling upon the demurrer the court will not draw inferences of fact in defendant's favor to countervail or overthrow inferences tending to support plaintiff's cause of action. Buesching v. Gas Co., 73 Mo. 219; Gratiot v. Railroad Co., 116 Mo. 466. (a) There was sufficient evidence to support the jury's finding that the respondent's injuries were the proximate result of the appellants' act in permitting the telegraph wire to fall across and come in contact with the high voltage power wire and the respondent's porch. Dakan v. Mercantile Co., 197 Mo. 238; Dyer v. Const. Co., 13 S.W.2d 1056. (b) The liability of a person charged with negligence does not depend on the question whether, with the exercise of reasonable prudence, he could or ought to have foreseen the very injury complained of; but he may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission. Dean v. Railroad Co., 199 Mo. 411; Harrison v. Kansas City El. L. Co., 195 Mo. 629; Woodson v. Railroad Co., 224 Mo. 707; Bassett v. St. Louis, 53 Mo. 290; McLeod v. Linde Air Products Co., 1 S.W.2d 122; Johnson v. K. C. El. L. Co., 232 S.W. 1094. (c) The evidence was sufficient to show negligence on the part of the appellant Moeckli, in that he attempted to handle the wire without gloves, and in that he permitted the wire to come too close to the high tension wire when he knew that it was dangerous to do so. Campbell v. United Railways Co., 243 Mo. 141; Hill v. Union E. L. & P. Co., 260 Mo. 43; Goodwin v. Columbia Tel. Co., 157 Mo.App. 596. (d) It was not incumbent upon respondent to prove specific negligence as against the appellant Western Union Telegraph Company. A presumption of negligence arose against said appellant from the falling of the wire. Kean v. Smith-Reis Piano Co., 206 Mo.App. 170; Gibbs v. Light & Power Co., 142 Mo.App. 19; Johnson v. Ry. Co., 104 Mo.App. 588; Gallagher v. Edison Co., 72 Mo.App. 576; Jackson v. Butler, 249 Mo. 360; Sackewitz v. Biscuit Co., 78 Mo.App. 144; Briggs v. Oliver, 4 Hurl. & Colt. 403, 35 L. J. Exch. 163; Conners v. Richards, 119 N.E. 831, 230 Mass. 436. (e) The trial court could not properly sustain appellants' demurrers on the theory that respondent suffered no ill result except fright and nervous shock, unaccompanied by physical injuries. The evidence for respondent showed that she suffered immediate and serious physical injuries as a result of appellants' negligence. Under such circumstances she was entitled to recover for the entire result. Heiberger v. Telephone Co., 133 Mo.App. 452; Lowe v. Railroad Co., 145 Mo.App. 256; McCardle v. Peck D. G. Co., 191 Mo.App. 267; McCardle v. Peck D. G. Co., 271 Mo. 111; Porter v. St. Joseph Ry., etc., Co., 311 Mo. 72; Weissman v. Wells, 306 Mo. 99; Gibbons v. Wells, 293 S.W. 89; Homans v. Ry. Co., 62 N.E. 737; Warren v. Railroad Co., 163 Mass. 484, 40 N.E. 895; Cameron v. New England T. & T. Co., 182 Mass. 310, 65 N.E. 385; Conley v. United Drug Co., 218 Mass. 238, 105 N.E. 975; Kisiel v. St. Ry. Co., 240 Mass. 29, 132 N.E. 622; Tracy v. Hotel Wellington Corp., 175 N.Y.S. 100; Jones v. Railroad Co., 23 A.D. 141, 48 N.Y.S. 914; Porter v. Railroad Co., 73 N. J. Law 405, 63 A. 860; Kennel v. Dershonovitz Bros., 84 N. J. Law 577, 87 A. 130; Hess v. Am. Pipe Mfg. Co., 221 Pa. 67, 70 A. 294; Denver & R. G. Railroad Co. v. Roller, 100 F. 748. (2) The allegation of the petition is a general, not a specific, charge of negligence, and consequently the respondent had the right to rely upon the res ipsa loquitur rule. Chandla v. Transit Co., 213 Mo. 244; MacDonald v. Railroad Co., 219 Mo. 468; Price v. Met. St. Ry. Co., 220 Mo. 454; Duffy v. McGee, 196 Mo.App. 395; Kean v. Smith-Reis Piano Co., 206 Mo.App. 174. (a) The fact that respondent offered some evidence tending to show specific acts of negligence as against appellant Moeckle did not deprive her of her right to proceed on the res ipsa loquitur theory as against appellant Western Union Telegraph Company. Price v. Met. St. Ry. Co., 220 Mo. 435; Gibson v. Wells, 258 S.W. 1; Cecil v. Wells, 214 Mo.App. 193; Kapros v. Pierce Oil Corp., 324 Mo. 1004.

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

OPINION

FITZSIMMONS

This case comes to the writer upon reassignment.

Defendants, the Western Union Telegraph Company and August Moeckli, its servant, appeal from a judgment in the sum of $ 15,000 against them rendered in the Circuit Court of the City of St. Louis. Their assignments of error are the overruling of their demurrers, the giving of an instruction and the excessive verdict. Plaintiff's cause of action was for damages for electric shock and resultant injuries suffered when a telegraph wire of the defendant company crossed high-tension wires of the Union Electric Light & Power Company. The demurrer of the third defendant, Whitaker, was sustained and plaintiff dismissed the case as to him.

The appealing defendants urge these reasons why the demurrers should have been sustained: (1) The evidence fails to show that the alleged injuries were the proximate result of the negligence charged. (2) Defendants could not, reasonably and naturally, have anticipated the injuries which were the result of so extraordinary and unusual an occurrence that the alleged negligence cannot be said to have been the cause of them. (3) Plaintiff suffered alone from fright or mental shock and received no physical injuries independent of the fright and mental shock. We will state first the facts bearing on the first two grounds, and second, we will summarize the evidence showing the nature of her injuries.

Plaintiff Lena Tate, lived with her husband and children in a first floor flat at No. 16 South Sarah Street, St. Louis. Sarah Street runs north and south and the flat is on the east side of the...