Trout v. Laclede Gas Light Co.

• Decision Date: 10 November 1910
• Citation: 151 Mo. App. 207,132 S.W. 58
• Parties: TROUT v. LACLEDE GAS LIGHT CO.
• Court: Missouri Court of Appeals

132 S.W. 58

151 Mo. App. 207

TROUT v. LACLEDE GAS LIGHT CO.

Springfield Court of Appeals. Missouri.

November 10, 1910.

Rehearing Denied December 8, 1910.

1. ELECTRICITY (§§ 16, 19)—ELECTRIC COMPANIES—CARE REQUIRED.

A company maintaining high voltage electric wires on its poles, and granting permission to a telephone company to use the poles for its wires, must use every protection which is reasonably accessible to insulate its wires and use the utmost care to keep them so, and the fact of the death of an employé of the telephone company by coming in contact with a high voltage wire is conclusive proof of the defective insulation and of negligence of the company.

2. TRIAL (§ 156)—DEMURRER TO EVIDENCE— EFFECT.

A demurrer to evidence admits every fact to be true which the evidence tends to prove, whether by direct testimony or by reasonable deductions to be drawn therefrom.

3. ELECTRICITY (§ 17)—ELECTRIC COMPANIES —CARE REQUIRED.

Where two or more companies by agreement engage in an enterprise calling for the use of wires to carry electricity and arrange for the joint use of a pole to sustain such wires, each is, as to such use, charged with the same duty towards the employés of the other as towards its own employés.

4. ELECTRICITY (§ 18)—ELECTRIC COMPANIES —CARE REQUIRED.

Where two or more companies by agreement arrange for the joint use of poles to sustain their electric wires, the employés of each must exercise due care for their own safety.

5. ELECTRICITY (§ 17)—ELECTRIC COMPANIES —CARE REQUIRED.

Where two companies by agreement use the same poles on which to suspend their electric wires, they are joint owners and each owes a duty to the other to use the highest degree of care in insulating its wires charged with a high voltage and to keep them properly insulated, and where either fails so to do, it is negligence rendering it liable for the injuries sustained by an employé of the other.

6. ELECTRICITY (§ 19)—INJURIES FROM USE— CONTRIBUTORY NEGLIGENCE — BURDEN OF PROOF.

The burden of proving contributory negligence of an employé of a telephone company using the poles of a power company, killed by coming in contact with an electric wire of the power company, is on the latter company, when sued for his death, and the law will not presume the negligence of the employé, in the absence of evidence to that effect.

7. APPEAL AND ERROR (§ 1001) — VERDICT — CONCLUSIVENESS.

A verdict supported by any substantial evidence is conclusive on appeal.

8. ELECTRICITY (§ 16)—INJURIES FROM USE— NEGLIGENCE—PROXIMATE CAUSE.

Where an employé of a telephone company, using by permission the poles of a power company, lost his balance while at work on a pole and accidentally fell, and thereby came in contact with a defectively insulated wire of the power company, causing his death, the slipping and falling, if not caused by his negligence, were not the proximate cause of the accident, but the proximate cause was the power company's negligent failure to properly insulate its wires.

9. ELECTRICITY (§ 18)—INJURIES FROM USE— CONTRIBUTORY NEGLIGENCE—PRESUMPTIONS.

An employé of a telephone company, using by permission the poles of a power company carrying high voltage wires, may assume that the power company has performed its duty to properly insulate its wires and to keep them so insulated, and he need only look for patent defects in any wire with which he is likely to come in contact, and to show his contributory negligence it must appear that he voluntarily and unnecessarily exposed himself to danger.

10. ELECTRICITY (§ 19)—INJURIES FROM USE— CONTRIBUTORY NEGLIGENCE.

Whether a lineman of a telephone company, using for its wires by permission the poles of a power company carrying high voltage wires, came in contact with the power company's wires through his negligence, precluding a recovery

for his death, held, under the evidence, for the jury.

11. NEGLIGENCE (§ 4)—TEST OF NEGLIGENCE.

The only test by which it can be determined whether ordinary care has been used or omitted in any particular case is the test of negligence in general, and there is no want of ordinary care when, under the circumstances, the person injured, or those whose negligence is imputable to him, did or omitted nothing which an ordinarily careful and prudent person would not have done or omitted; and while a custom cannot excuse negligence, it may be considered by the jury on the issue of negligence.

12. ELECTRICITY (§ 19)—INJURIES FROM USE— CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

Whether a lineman of a telephone company, maintaining its wires by permission on the poles of a power company carrying high voltage wires, was guilty of contributory negligence in not wearing rubber gloves supplied by the telephone company to its employés while at work on such a pole held, under the evidence, for the jury.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by Eugenia V. Trout against the Laclede Gas Light Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Percy Werner, for appellant. J. E. Turner, Jos. A. Wright, and F. M. McDavid, for respondent.

NIXON, P. J.

Alexander J. Trout was killed while at work as a lineman in the city of St. Louis, on July 26, 1907, on one of appellant's poles carrying the appellant's electric wires, and on which pole were strung also the wires of the Bell Telephone Company. This is an action by the widow to recover of the appellant for his death. Respondent obtained judgment for $7,000, from which the defendant has appealed.

The petition charged that the plaintiff's husband was employed as a lineman by the Bell Telephone Company, which company operated a telephone system in the city of St. Louis; that on July 26, 1907, and long prior to that date, the defendant, Laclede Gas Light Company, and the said Bell Telephone Company maintained their respective systems of wires on the same line of poles, the wires of the telephone company being strung upon cross-arms attached to said poles and immediately above the wires of defendant, which were likewise attached to the cross-arms of said poles; that defendant's wires were in such close proximity to the wires of the telephone company, that the linemen of the latter company, while in the discharge of their duties working upon the telephone wires, were liable to come in contact with the defendant's wires; that defendant's wires were heavily charged with electricity of high voltage and dangerous to human life unless they were safely and wholly insulated, which facts were known to the defendant, or might have been known by the exercise of ordinary care. The petition further charges that on the date mentioned above, and long prior thereto, "defendant carelessly and negligently failed and omitted to protect one of its wires at said point, near a pole on said line, with safe or sufficient insulating material, and carelessly and negligently permitted the covering used thereon to become worn, rotten, defective, and wholly insufficient to render it safe to persons required to be thereabout or coming in contact therewith," and that by reason thereof the deceased husband of plaintiff, while working upon the wires of the telephone company on said pole in the line of his duties, received an electric shock "from said wire then and there thus defectively, insufficiently, and unsafely covered and insulated," thereby immediately causing his death. The answer was a general denial and a plea of contributory negligence.

Plaintiff's husband was an employé of the Bell Telephone Company and was an experienced lineman of many years' service. The defendant, Laclede Gas Light Company, had its poles in various parts of the city upon which wires were strung, carrying electricity for lighting purposes. Besides its own wires, the poles of the defendant also carried the wires of two other companies—the Bell Telephone Company and the Union Electric Light & Power Company. The telephone company had leased from the defendant the cross-arms on which its wires were strung, paying the defendant an annual rental for their use. For purposes of its own, the telephone company desired a new and higher pole for its wires on the corner of Grand and Kossuth avenues. It accordingly obtained permission from the defendant to erect the new pole at that place; the telephone company agreeing to erect the new pole and to transfer all the wires from the old to the new pole at its own expense, the new pole, however, to belong to the defendant. After the telephone company had erected the new pole, it sent its employés, of whom plaintiff's husband was one, without notice to the defendant, to take the wires down from the old pole and string them on the arms of the new pole, and it was while working on the old pole, loosening the wires preparatory to their transfer to the new pole, that plaintiff's husband received the shock which caused his death. The wires of the telephone company had a 500-volt circuit. The defendant's wires carried 2,300 volts and those of the Union Electric Light & Power Company carried 4,500; the wires of both of these latter companies being high tension wires. The telephone company had some 10 or 20 wires on this pole, the Union Company 2 wires, and the defendant 4 wires. The evidence shows that 60 per cent. of the Bell Telephone Company's wires in the city of St. Louis are hung upon poles with wires of high tension, and that in the ordinary and usual discharge of the duties of a lineman working for the Bell Telephone Company, approximately 60 per cent. of the time he works is spent on poles on which there are wires of high tension. The evidence further shows that a voltage of 2,300 is dangerous to life and that wires carrying such a voltage are always treated as live wires.

The testimony of the defendant's witness, Wm. Thompson, was that he was the assistant superintendent of construction of the Bell Telephone Company in St. Louis; that he had been engaged in...