Thorp v. Metropolitan St. Ry. Co.

• Decision Date: 01 June 1915
• Docket Number: No. 17319.,17319.
• Citation: Thorp v. Metropolitan St. Ry. Co., 177 S.W. 851 (Mo. 1915)
• Parties: THORP v. METROPOLITAN ST. RI. CO.
• Court: Missouri Supreme Court

177 S.W. 851

THORP v.METROPOLITAN ST. RI. CO.

No. 17319.

Supreme Court of Missouri, Division No. 1.

June 1, 1915.

Appeal from Circuit Court, Jackson County Thos. J. Seehorn, Judge.

Action by Albert J. Thorp against the Metropolitan Street Railway Company.From a judgment for plaintiff, defendant appeals.Affirmed on condition that plaintiff remit part of the recovery; otherwise reversed and remanded.

Respondent recovered judgment against the appellant for $8,000 in the Jackson county circuit court, for injuries alleged to have been received from an electric shock while in the employé of the appellant, painting one of its poles on Main street, in Kansas City, Mo.

Respondent's petition alleges the corporate character of the appellant; that it is engaged in carrying passengers for hire, and operating a system of street railways in Kansas City, Mo.; that, as an incident to said business, it maintains electric trolley wires above the streets, which wires distribute electrical current throughout said railway system, and that said wires are sustained and held in place by means of poles and guy wires; that on) March 30, 1910, respondent was in appellant's employé, painting one of said poles on the east side of Main street, in Kansas City, between Eighth and Ninth streets, using for that purpose a ladder, upon which he stood; that while so engaged, and in the exercise of clue care and caution upon his part, respondent, through the negligence and carelessness of appellant, received a shock from an electrical current that appellant negligently and carelessly permitted to escape from a trolley wire, which ran north and south over the center of Main street, supported by a guy that ran to the pole upon which the respondent was working.

The negligence charged is: First, in failing and neglecting to provide plaintiff with a safe place in which to work; second, in permitting, without notice or warning, a dangerous and destructive current of electricity to escape from its said trolley wire, in such a way as to enter the body of respondent, while he was engaged in the performance of his duties.

The answer is a general denial, coupled with a plea of contributory negligence, in general terms.

The evidence tends to show that plaintiff, prior to his employment by defendant, never had any experience in painting poles where electric wire was strung thereon.He was a native of Carroll county, Mo., and before coming to Kansas City was employed in various pursuits.The defendant contracted with him to paint its poles and bridges in Kansas City, Mo.At the time of his employment he was provided with the necessary tools—ladder, paint, and such other things as were necessary in the performance of his duties.The poles upon which plaintiff was engaged in painting at the time of his injury were made of iron, and were from 25 to 30 feet in height.Attached to defendant's poles was a guy wire, running from the pole to the trolley wire and from the latter to a pole on the opposite side of the street, thereby supporting the trolley wire above the street.Defendant's trolley wire "furnished the power for the cars to run."The guy wire was not covered, and this is what plaintiff meant when he said "it wasn't insulated."He had placed his ladder on the south side of the pole, preparatory to panting same, and his feet were upon the second rung of the ladder.He was holding the pole with his right hand and the paint brush with his left.He was painting the pole from the top down, and had finished about two feet of same at the time of accident.He reached with his left hand to continue his work on the north side of the pole, when his left arm, between the elbow and wrist, came in contact with the guy wire, running from the pole, where he was at work, to the trolley wire.There was a flash.Plaintiff received a shock (says it was like a lot of needles running through him), became unconscious, remained suspended for a few seconds with his head downward, and then fell.He was covered with paint, but could not tell what became of the bucket.

Plaintiff testified that he informed defendant's servant, who employed him, that he was without experience in electrical work, and states that no warning was given him as to the danger arising from that class of employment.He had worked about three days before he was injured, and painted from 10 to 15 poles each day.He came in contact, while painting above poles, with the guy wires attached thereto, two or three times each day, but there was no electricity in said guy wires, and he received no shock from coming in contact therewith.When standing on the top of the ladder, his head would be as high as the top of the pole, but at the time of the accident he was on the second rung of the ladder and not on the top of the same.He testified that in his opinion the guy wire was placed there to hold the trolley wire in place, and that the guy wire was attached to poles on opposite side of the street.

The following occurred at the trial:

"The Court: Just let me understand, gentlemen.Is the guy wire, as you call it, the support of the trolley wire in the center?

"Mr. Brooks: The guy wire helps to support the pole, and the trolley, and tie whole business.That is what it is for.For instance, the guy wire supports this pole on the other side of the street.

"The Court: The guy wire supports the trolley wire in the center of the street?

"Mr. Prince: Yes, sir.It is not like it is on Grand avenue, your honor.There is only one wire on Main street, and it is attached to that wire.

"The Court: These poles that he was painting, were they poles erected especially to support this guy wire?

"Mr. Prince: Yes, sir.

"The Court: It wasn't a pole for supporting telegraph wires and other wires and things?"Mr. Brooks: No, sir.There are other wires there, though. 3 want to ask hair, about those things."

Plaintiff testified that there were four or five wires above the guy wire attached to the pole, but that they were not connected with the guy wire in any way.They were attached to glass, and the latter was attached to the crossarm which ran out from tie pole.He said the guy wire had no covering on it, but he did not know whether or not it had any insulators.Plaintiff said he did not know whether there was any current, in the pole or in the guy wire.He never noticed the connection between the trolley wire and the guy wire.He said he could have stood his ladder on the north side of the pole and painted it from that side.Plaintiff was cross-examined at great length by counsel for defendant, but the foregoing covers substantially the testimony which he gave at the trial, in respect to the conditions surrounding him at the time of, and before, the accident.

The only other witness who testified in regard to what occurred about the time and place of accident was Charles Ricker, examined upon the part of plaintiff, who testified, in substance, that he saw a man fall from a pole in front of Seelig's place of business, about the 30th of March, 1910.Witness was working for Seelig and stood in front of the doorway.He was within 12 or 15 feet of the pole when plaintiff fell.He testified that he worked out in front of the store, and noticed a man was painting the iron pole there.Witness was looking across the street, in the opposite direction from the pole, and heard the latter rattle.He looked around, and saw the man was off the ladder, and noticed that the latter was tilted sideways.He ran and grabbed the ladder, straightened it, and, when it was straightened, the man fell.Plaintiff was hanging to the pole and fell when the ladder was straightened.When witness first saw him, plaintiff was hanging feet downward, and about ten feet from the top of the pole.He could not tell what plaintiff was hanging to, when located as above.Said he did not think plaintiff was making any exertion, and that he was hanging straight down the pole, but dropped the instant witness took hold of the ladder.He said plaintiff was covered with paint when he fell on the sidewalk.He lit on his feet and fell backwards.He fell towards witness, and the latter caught him, and set him down on the walk.Plaintiff's face was covered with black paint, which was running all over him.

The foregoing fairly, according to our conception, presents the evidence substantially as given at the trial, in regard to plain tiff's employment, his experience, and what occurred at the time and place of accident.

The defendant introduced no testimony, but stood upon a demurrer to plaintiff's evidence.The jury returned a verdict for plaintiff in the sum of $8,000.Motions for new trial and in arrest of judgment were duly filed, overruled, and the case appealed to this court in proper form.

The evidence in regard to plaintiff's injuries and the extent of same will be considered in connection with the instructions, in the opinion which is to follow.

John H. Lucas and Boyle & Howell, all of Kansas City(Joseph S. Brooks and Charles A. Stratton, both of Kansas City, of counsel), for appellant.C. W. Prince and E. A. Harris, both of Kansas City, and J. E. Westfall, for respondent.

RAILEY, C.(after stating the facts as above).

It is insisted by defendant that its demurrer to the evidence should have been sustained, for the alleged reason that there was no evidence in the case, tending to show that plaintiff was injured by a current of electricity coming from the trolley wire, as alleged in petition.

In disposing of the demurrer, plaintiff's evidence must be taken as true, and he should be given the benefit of every legitimate inference which the jury were at liberty to draw in his favor from the testimony adduced at the trial.

Plaintiff was hired to paint defendant's pole from which he fell at the time of accident.There was a guy wire fastened to said pole, and to the trolley line, over defendant's track.This trolley line furnished the electricity for the...