Thornton v. Union Electric Light & Power Co.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSUTTON, C.
Citation72 S.W.2d 161,230 Mo.App. 637
Decision Date05 June 1934

72 S.W.2d 161

230 Mo.App. 637



Court of Appeals of Missouri, St. Louis

June 5, 1934

Appeal from the Circuit Court of Jefferson County.--Hon. E. M. Dearing, Judge.

Reversed and remanded.

Theodore Rassieur, George M. Rassieur, John P. McCammon, Jr. and Alfred C. Wilson for appellant.

(1) The demurrer to the evidence should have been sustained, because: (a) Under the undisputed evidence the sole proximate cause of plaintiff's injury was an unforeseen accident, i. e., a runaway truck struck and broke the pole and caused the wire to fall on plaintiff. Wecker v. Grafeman, etc., Ice Cream Co., 326 Mo. 451, l. c. 459, 31 S.W.2d 974; State ex rel. Lusk v. Ellison, 271 Mo. 463, 196 S.W. 1088; Strack v. Missouri & Kansas Tel. Co., 216 Mo. 601, l. c. 609, 116 S.W. 526; Brubaker v. Kansas City Elec. Light Co., 130 Mo.App. 439, l. c. 447, 449, 110 S.W. 12; Leuhrmann v. Laclede Gas Light Co., 127 Mo.App. 213, 104 S.W. 1128; Majors v. Ozark Power & Water Co., 205 Mo.App. 337, 222 S.W. 501, l. c. 503; Wyatt v. Chesapeake & Potomac Tel. Co. (Va. Sup.), 163 S.E. 370; 22 Ruling Case Law 119, 121, 124. (b) No act of negligence was shown. No duty was shown to use a strain insulator on the guy wire in preference to the method of insulation actually used, nor was it shown that strain insulators are ever used by highly prudent persons in guy wires on transmission lines carrying 33,000 volts of electricity. Boettger v. Scherpe, etc., Iron Co., 124 Mo. 87, l. c. 101, 27 S.W. 466; Shafer v. St. Louis, etc., Ry. Co., 201 Mo.App. 107, l. c. 109, 208 S.W. 145; Alabama Power Co. v. McIntosh (Ala. Sup.), 122 So. 677. (2) The pole of a public utility corporation placed within the highway right of way by permission of proper public authority, at a place more than fifteen feet distant from the edge of the concrete pavement of a State highway and seven feet beyond the eight-foot dirt shoulder of the road, was not an obstruction to the use of the highway by motor vehicles, and negligence could not be predicated upon the location of the pole if struck by an automobile which had for some unknown reason left the traveled portion of the highway. Clinkenbeard v. City of St. Joseph, 321 Mo. 71, 10 S.W.2d 54, l. c. 59, 62; Meeham v. Union Elec. L. & P. Co., 252 Mo. 609, 161 S.W. 825; Mississippi Power Co. v. Sellers, 133 So. 594, 160 Miss. 512. (3) Negligence cannot be inferred merely from the happening of the accident, but the specific negligence alleged must be proved. Dowell v. Guthrie, 99 Mo. 653, l. c. 663, 12 S.W. 900; Warner v. St. L., etc., Ry. Co., 178 Mo. 125, l. c. 133, 77 S.W. 67; Sanders v. City of Carthage (Mo. Sup.), 51 S.W.2d 529, l. c. 531; State ex rel. v. Mo. Pub. Utilities Co., 298 Mo. 427, l. c. 434, 250 S.W. 551. (4) Statistics of the frequency and seriousness of automobile accidents throughout the United States, and accounts of other accidents from striking poles, were not admissible to prove that an electric company should have anticipated that some automobile out of the driver's control might leave the concrete highway and strike and break defendant's anchor pole located fifteen feet from the edge of the concrete pavement, provided for automobile travel, thereby causing the pole and guy wire thereto attached to fall and injure a person standing on or near the highway. Goble v. Kansas City, 148 Mo. 470, 50 S.W. 84; Smart v. Kansas City, 91 Mo.App. 586; Continental Life Assur. Co. v. Searing (3 C. C. A.), 240 F. 653. We wish to add the following citation under points and authorities II, page 10, appellant's original brief: Calcaterra v. Iovaldi, 123 Mo.App. 347, 100 S.W. 675. (5) An instruction consisting of an abstract declaration of law to the effect that it was negligence for a carrier of electricity to maintain high-voltage wires, capable of causing injury or death, along a public highway without insulating such wires, was erroneous when the failure to insulate such transmission wires was not the negligent act complained of in the plaintiff's petition. Talbert v. Chicago, Rock Island & Pacific Ry. Co., 314 Mo. 352, l. c. 370, 284 S.W. 499; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, l. c. 653, 654, 195 S.W. 722; Jones v. Norman (Mo. App.), 248 S.W. 621, l. c. 623. (6) An instruction is erroneous which fails to require the jury to find that the alleged negligence was the direct or proximate cause of the injury, or to find facts from which a necessary inference arises that such negligence was the proximate cause. St. Louis & Hannibal R. Co. v. Walsh Fire Clay Pro. Co. (Mo. App.), 16 S.W.2d 616, l. c. 618; Lackey v. United Rys. Co., 288 Mo. 120, l. c. 146, 231 S.W. 956, l. c. 963.

Hay & Flanagan for respondent.

(1) The court did not err in overruling defendant's demurrer to the evidence in deciding this case. He, therefore, respectfully prays that the following cases be considered with the other cases cited under point 1 of his points and authorities appearing on page 9 of respondent's statement, brief and argument: Williams v. Springfield Gas & Power Co., 274 Mo. 1, 202 S.W. 1; Thompson v. City of Slater, 197 Mo.App. 247, 193 S.W. 971; Shannon v. Kansas City Light & Power Co., 315 Mo. 1136, 287 S.W. 1031; Godfrey v. Kansas City Light & Power Co., 299 Mo. 472, 253 S.W. 233; Beckwith v. City of Malden, 212 Mo.App. 488, 253 S.W. 17; Rogers v. Meyerson Printing Co., 103 Mo.App. 683, 78 S.W. 79. If the ocrence of an intervening cause might reasonably have been anticipated such intervening cause will not break the connection between the original cause and the injury. 45 Corpus Juris 934; Daneschocky v. Sieben et al., 195 Mo.App. 470, 193 S.W. 966; Modern Oil Co. v. Vandervort, 228 Mich. 516, 518, 200 N.W. 145; Ahern v. Oregon Telephone & Telegraph Co., 24 Oregon, 276, 33 P. 403, 22 L.R.A. 635, 640; Laudwig v. Central Missouri Power & Light Co., 324 Mo. 676, 24 S.W.2d 625. (2) If defendant could not maintain its wires on the highway without danger to travelers, it should have adopted other means of transmitting its current. Laudwig v. Central Missouri Power & Light Co., 324 Mo. 676, 24 S.W.2d 625. By stating more in his petition than he was required to prove, plaintiff did not forfeit his right to recover upon proof of the facts he was required to state and did state in his petition. Hill v. Union Electric Light & Power Co., 260 Mo. 43, 169 S.W. 345; Campbell v. Mo. P. Ry. Co., 121 Mo. 340, 25 S.W. 936. (3) It is the general rule that where the dangerous or safe character of the place, method or appliance which is alleged to have caused an injury is an issue, evidence is admissible that other similar accidents or injuries, actual or potential, have theretofore, or at the same time, or thereafter resulted at or from such place, method or appliance. 45 Corpus Juris 1246; District of Columbia v. Armes, 107 U.S. 519, 2 S.Ct. 840, 27 L.Ed. 618; Hebenheimer v. City of St. Louis, 269 Mo. 92, 189 S.W. 1180; Charlton v. St. Louis & San Francisco Railway Co., 200 Mo. 413, 98 S.W. 529; Golden v. City of Clinton, 54 Mo.App. 100; Golden v. Chicago, Rock Island & P. Ry. Co., 84 Mo.App. 59; Dunham v. Wabash Railway Co., 126 Mo.App. 643, 105 S.W. 21; Campbell v. Missouri Pacific Railway Co., 121 Mo. 340, 25 S.W. 936; Ingram v. Prairie Block Coal Co., 319 Mo. 644, 5 S.W.2d 413; Burtch v. Wabash Railway Co., 236 S.W. 338; Wells v. Village of Kenilworth, 228 Ill.App. 332; Koehler v. City of New York, 262 N.Y. 74, 186 N.E. 208. (4) (a) The court did not err in giving to the jury plaintiff's instruction No. 4, because an instruction stating an abstract proposition of law is not erroneous where defendant is not prejudiced thereby. State ex rel. Highway Commission v. Haid (Mo.), 59 S.W.2d 1057; Kienlein v. Foskin, 321 Mo. 887, 900, 13 S.W.2d 648; Cooper v. Winnwood Amusement Co. (Mo. App.), 55 S.W.2d 737; Bryce v. Payne (Mo. App.), 263 S.W. 1005; Morris v. Union Depot Bridge Co., 320 Mo. 371, 8 S.W.2d 11; Alewel v. East St. Louis & Sub. Ry. Co. (Mo. App.), 26 S.W.2d 869; Plater v. W. C. Mullins Constr. Co., 223 Mo.App. 650, 17 S.W.2d 658, l. c. 668; Underwood v. Hall (Mo. App.), 3 S.W.2d 1044, l. c. 1046; Brown v. Railway Co. (Mo. App.), 227 S.W. 1069, l. c. 1071; Lammert v. Wells (Mo. App.), 282 S.W. 487, l. c. 490. (b) Plaintiff's instruction No. 1 does not constitute error for failure to specifically state that defendant's negligence was the proximate cause of plaintiff's injury. Reisert v. Williams, 51 Mo.App. 13.

SUTTON, C. Becker and McCullen, JJ., concur; Hostetter, P. J., not sitting.

OPINION [72 S.W.2d 162]

[230 Mo.App. 641] SUTTON, C.

This is an action to recover damages for personal injuries. The trial, with a jury, resulted in a verdict for plaintiff for $ 7,500, and judgment was given accordingly. Defendant appeals.

The accident through which plaintiff sustained the injuries sued for occurred on U.S. Highway No. 61, on March 12, 1932, at a point about two miles south of Bonne Terre, in St. Francois county.

The petition alleges that prior to March 12, 1932, defendant had erected poles along the west side of said highway near the tops of which poles cross arms were fastened to carry defendant's wires which were heavily charged with electricity; that in order to provide support for said poles, defendant had erected and maintained other wooden poles known as anchor poles on the right of way of said highway a few feet east of the paved portion thereof, and had run guy wires from the poles on the west side of said highway across and above said highway to said anchor poles, said guy wires being stretched taut causing a great strain to be placed on said poles; that said guy wires were fastened near the tops of the poles on the west side of said highway so that they were within a few feet of said high tension wires; that said anchor poles were located on curves on said highway, and that...

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1 practice notes
  • Morelock v. De Graw
    • United States
    • Court of Appeals of Kansas
    • December 6, 1937 show he knew or could, by the exercise of ordinary care and caution, have known. In Thornton v. Union Electric Light & Power Company, 230 Mo.App. 637, 72 S.W.2d 161, l. c. 163 and 164, it is said: "It is elementary law that an act alleged as causing an injury, for which recovery of damag......
1 cases
  • Morelock v. De Graw
    • United States
    • Court of Appeals of Kansas
    • December 6, 1937 show he knew or could, by the exercise of ordinary care and caution, have known. In Thornton v. Union Electric Light & Power Company, 230 Mo.App. 637, 72 S.W.2d 161, l. c. 163 and 164, it is said: "It is elementary law that an act alleged as causing an injury, for which recovery of damag......

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