Thompson v. City of Lamar

• Decision Date: 29 March 1929
• Docket Number: No. 27292.,27292.
• Citation: 17 S.W.2d 960
• Parties: JOHN P. THOMPSON v. CITY OF LAMAR, Appellant.
• Court: Missouri Supreme Court

17 S.W.2d 960

JOHN P. THOMPSON v. CITY OF LAMAR, Appellant.

No. 27292.

Supreme Court of Missouri. Division One.

March 29, 1929.

Appeal from Vernon Circuit Court. — Hon. B.G. Thurman, Judge.

AFFIRMED.

E.L. Moore for appellant.

(1) Under the statutory law of Missouri cities are not liable for negligence in the operation of their electric light plants. Secs. 9111, 9119, R.S. 1919. (2) The testimony of plaintiff's son, that the city should have used a certain kind of wire, was improper and incompetent. It was a conclusion, and as a mere worker on the lines he was not shown qualified to speak on this subject. Koons v. Railroad, 65 Mo. 597; Turner v. Haar, 114 Mo. 344; Glasgow v. Railroad, 191 Mo. 364; Nash v. Dowling, 93 Mo. App. 164. (3) It was improper and prejudicial to permit plaintiff's daughter to testify in detail as to what she did in the care and nursing of her father, without some showing of an express agreement to pay her. There was much of this testimony, and it must have had its effect upon the jury. Baldwin v. Railways, 218 S.W. 955; Morris v. Ry. Co., 144 Mo. 500; Gibler v. Term. Assn., 203 Mo. 223; Gibney v. Transit Co., 204 Mo. 722; Field v. Ry. Co., 156 Mo. App. 650. (4) The demurrer at the close of the evidence should have been given. (a) Because cities are not liable in such actions. Secs. 9111, 9119, R.S. 1919. (b) Because the evidence does not show whether the wires blew against him, or he became dizzy from the heat and stooped position of working and toppled against them. The exact cause of the accident is pure conjecture. Byerly v. Ice Co., 130 Mo. App. 603; Cluett v. Union E.L. & P. Co., 220 S.W. 867; Warner v. Ry. Co., 178 Mo. 134; Goransson v. Mfg. Co., 186 Mo. 307; McGrath v. Tr. Co., 197 Mo. 104; Hartman v. Railroad, 261 Mo. 286; Sabol v. Cooperage Co., 313 Mo. 539; Rogers v. Packing Co., 180 Mo. App. 236; Waldman v. Const. Co., 211 Mo. App. 586; Sharp v. Stuebner Co., 300 S.W. 562; Hamilton v. Ry. Co., 300 S.W. 791; Boone v. City, 1 S.W. (2d) 227. (c) Common observation and the uncontradicted testimony of experts show that it was physically impossible for two of those wires to be blown against him at the same time, at that short a distance from the pole. Courts do not believe things contrary to physical laws or facts, and take notice of the law of gravitation and of physics generally. Wray v. Electric Co., 68 Mo. App. 389; Scroggins v. Railroad, 138 Mo. App. 220; Sexton v. Railway, 245 Mo., 271; 23 C.J. 140, n. 98, (b) et seq; Payne v. Railroad, 136 Mo. 583; Phippin v. Railway, 196 Mo. 343; Kibble v. Railroad, 285 Mo. 618. (5) Because plaintiff was guilty of contributory negligence in standing so close to the wires so long, merely observing them, after quitting work. 20 C.J. 372, et seq. and notes; Geismann v. Electric Co., 173 Mo. 675; Kube v. Transit Co., 103 Mo. App. 582; Winkelman v. Electric Co., 110 Mo. App. 190; Morris v. L. & P. Co., 302 Mo. 483; Junior v. L. & P. Co., 127 Mo. 79; Gray v. L. & P. Co., 282 S.W. 490; Frauenthal v. Gas Co., 67 Mo. App. 1; Wray v. L. & P. Co., 68 Mo. App. 380. The danger was "obvious and glaring," according to his own story; "glaringly defective and dangerous." George v. Railroad, 225 Mo. 411; Allen v. Railway, 294 S.W. 86. (6) Because plaintiff assumed the risk. Geismann v. Electric Co., 173 Mo. 676; 20 C.J. 377; Wray v. L. & P. Co., 68 Mo. App. 380; Allen v. Ry. Co., 294 S.W. 86. (a) The following cases, where the injured person did not have the knowledge of plaintiff in this case, are useful by way of contrast: Blackburn v. Railroad, 180 Mo. App. 562; Sprinkles v. Utilities Co., 183 S.W. 1075; Choka v. R.L.H. & P. Co., 303 Mo. 145; Lofty v. Const. Co., 215 Mo. App. 174. (7) The court erred in giving plaintiff's instruction numbered 1. (a) Because it does not require the jury to find that the specified acts constituted negligence. Greenstein v. C. & S. Co., 178 S.W. 1183; Clark v. Long, 196 S.W. 409; State ex rel. v. Ellison, 272 Mo. 583; Hall v. Coal Co., 260 Mo. 362; Lukamiski v. Foundries, 162 Mo. App. 639; Cross v. Coal Co., 186 S.W. 528; Ratliff v. Power Co., 203 S.W. 235. (b) An instruction which covers the entire case and directs a verdict for plaintiff must submit every element necessary to entitle plaintiff to recover and cannot be cured by another instruction. State ex rel. v. Ellison, 272 Mo. 583; Beeson v. Fleming, 315 Mo. 177; Bank v. Richards, 273 S.W. 415; Harvey v. Handle Co., 279 S.W. 155; Huffman v. City, 287 S.W. 848; Allen v. Railway, 294 S.W. 87; Lauf v. Wiegersen, 295 S.W. 500; Perry v. Fleming, 296 S.W. 167; Bentley v. Hurley, 299 S.W. 608; Finley v. Ins. Co., 299 S.W. 1107; Priestly v. Laederich, 2 S.W. (2d) 631. In fact, another instruction supplying the omission would create a conflict. Heigold v. Railways, 308 Mo. 158; Hanks v. Railway, 217 Mo. App. 536; State v. Trimble, 300 S.W. 814; Kuhlman v. W.L. & T. Co., 307 Mo. 637; State v. Trimble, 316 Mo. 26. (c) This instruction virtually told the jury that the defendant was negligent if it did not keep the wires both taut and insulated at that place. Sagging is natural, and insulation is not always necessary. These are jury questions, at least. Freeman v. Tel. Co., 160 Mo. App. 279; Strack v. Tel. Co., 216 Mo. 613; Lukamski v. Foundries, 162 Mo. App. 639; Ratliff v. Power Co., 203 S.W. 235; Godfrey v. L. & P. Co., 299 Mo. 487; Glaser v. Rothschild, 221 Mo. 204; 20 C.J. 356. Absolute security and perfection in appliances and places is scarcely possible and seldom required. 20 C.J. 344; Myers v. Railway, 103 Mo. App. 274; Warren v. Tel. Co., 196 Mo. App. 552. Even a person or company handling electricity is not an insurer of the safety of others. 20 C.J. 340; Wilhite v. Huntsville, 167 Mo. App. 159; Warren v. Tel. Co., 196 Mo. App. 552; Shannon v. L. & P. Co., 315 Mo. 1150; Brubaker v. Electric Co., 130 Mo. App. 449. Where no contractual relations exist between the parties, negligence will not be presumed from the sagging or breaking of electric wires. Kepner v. Traction Co., 183 Pa. St. 24. (d) Instruction 1 is further erroneous because it does not require the jury to find that the acts or omission of defendant, if negligent, were the proximate cause. "The mere negligence of defendant in maintaining an unsafe wire is not alone sufficient to entitle plaintiff to recover." It must be the proximate cause. Luehrmann v. Gas Light Co., 127 Mo. App. 218; Brubaker v. Electric Co., 130 Mo. App. 448; Waldmann v. Const. Co., 211 Mo. App. 586; Dunsmore v. Hartmann, 256 S.W. 1031; Duvall v. Cooperage Co., 275 S.W. 589; Glenn v. Am. Car Co., 294 S.W. 1021; Powers v. Mining Co., 8 S.W. (2d) 940. When plaintiff stood close to the wires for a minute or more, to see how far they would swing, he was contributorily negligent and assumed the risk; and if while doing so he became dizzy and fell against the wires, or even if they did blow against him, his negligence was the proximate cause. 20 C.J. 368, note (b). (e) Said instruction is broader than the petition. The petition says, "at that instant a sudden gust of wind came from the southwest and suddenly whipped said wires against plaintiff's body and limbs." But the instruction says, if "said wires came in contact with or were blown against the body and limbs of plaintiff." They might "have come in contact" with him by his falling against them, or otherwise. Kuhlman v. W.L. & T. Co., 307 Mo. 635; Politowitz v. Tel. Co., 115 Mo. App. 60; Allen v. Ry. Co., 294 S.W. 87; Wallace v. Mfg. Co., 3 S.W. (2d) 391. And there is really no evidence that the wind whipped the wires against him. It is elementary that to instruct on a proposition which there is no evidence to support is erroneous. Modlagl v. Iron Co., 248 Mo. 601; Stid v. Railroad, 236 Mo. 399. (4) Instruction 2 is erroneous. (a) Because it includes nursing and care; the evidence does not include nursing, and the petition does not include care. Instructions must keep within both the pleadings and the evidence. Stid v. Railroad, 236 Mo. 399; Kuhlman v. W.L. & T. Co., 307 Mo. 635; Heidbink v. Railways, 133 Mo. App. 43; Gibney v. Transit Co., 204 Mo. 722; Field v. Railway, 156 Mo. App. 650; Gibler v. Assn., 203 Mo. 223; Baldwin v. Railways, 218 S.W. 955; Allen v. Ry. Co., 294 S.W. 87; State ex rel. v. Ellison, 270 Mo. 645; Morris v. Ry. Co., 144 Mo. 500. (b) Because it has the sinister clause, or hint, "not exceeding the sum of $25,000," without disclosing any reason therefor; and this is "especially harmful." Bond v. Railroad, 315 Mo. 987; Lessenden v. Railroad, 238 Mo. 264; Applegate v. Railroad, 252 Mo. 202; Hanks v. Ry., 217 Mo. App. 537; Pope v. Terminal Assn., 254 S.W. 47; Stid v. Railroad, 236 Mo. 405. (9) The verdict is excessive. Nicholds v. Plate Glass Co., 126 Mo. 68; Hollenbeck v. Railroad, 141 Mo. 112; Stolze v. Transit Co., 188 Mo. 581; Lessenden v. Railroad, 238 Mo. 266; Applegate v. Railroad, 252 Mo. 202. (10) The court erred in giving plaintiff's Instruction 5 making insulation an absolute duty, instead of letting the jury say whether or not non-insulation at that place was negligence. "The duty to insulate does not extend to the entire system or to parts of the line where no one could reasonably be expected to come into contact with it," but only "to places where there is a likelihood or reasonable probability of human contact therewith." And there is evidence here that such wires cannot be kept insulated. 20 C.J. 355, 356; Ratliff v. Mexico Power Co., 203 S.W. 235; Godfrey v. L. & P. Co., 299 Mo. 487. (11) The court erred in refusing defendant's Instruction 4 submitting assumption of risk. "Had he known of the defective insulation and put himself in contact with the wire, he would have assumed the risk." Geismann v. Electric Co., 173 Mo. 676. (12) It was error for the court to approve a quotient verdict. State v. Branstetter, 65 Mo. 149; Sharp v. Railway, 114 Mo. 94; Southern Ry. Co. v. Williams, 113 Ala. 620; Ottawa v. Gilliland, 63 Kan. 165; Benjamin v. Helena L....