Trout v. Laclede Gaslight Company
| Decision Date | 10 November 1910 |
| Citation | 132 S.W. 58,151 Mo.App. 207 |
| Parties | EUGENIA V. TROUT, Respondent, v. LACLEDE GASLIGHT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Chas. Claflin Allen Judge.
Judgment affirmed.
Percy Werner for appellant.
(1) Under the evidence introduced by plaintiff, the deceased husband of plaintiff was, as a matter of law, guilty of contributory negligence; if, indeed, his negligence was not the sole cause of his death. In this: (a) That having been provided with rubber gloves and rubber boots, for the express purpose of protecting him from dangerous wires, he negligently failed to wear either the gloves or the boots. Junior v. Electric L. & P. Co., 127 Mo. 84; Wray v. Electric L. & W. P. Co., 68 Mo.App. 390; Roberts v. Telephone Co., 166 Mo. 380; Bradley v. Tea & Coffee Co., 213 Mo. 320; Yongue v. Railroad, 133 Mo.App. 158; Moore v. Railroad, 146 Mo. 582; Hurst v. Railroad, 163 Mo. 322; Bailey on Master and Servant, sec. 1123; Purcell v. Shoe Co., 187 Mo 290; Smith v. Box Co., 193 Mo. 715; Richardson v. Railroad, 123 S.W. 22; McManus v. Railroad, 118 Mo.App. 158; Whaley v. Coleman, 113 Mo.App. 600; Fore v. Railroad, 114 Mo.App. 556; Dunphy v Stock Yards Co., 118 Mo.App. 519; Montgomery v. Railroad, 109 Mo.App. 93; Hart v. Lighting Co., 201 Pa. 236; Munn v. Mfg. Co., 94 Ill.App. 126; White v. Thomasville Co. (N. C.), 66 S.E. 210; Pierson v. Tel. Co. (Wis.), 123 N.W. 642; Gilbert v. Burlington & Co., 128 F. 539; Williams Cooperage Co. v. Headrick, 159 F. 680. (b) That while the abrasion of the insulation on defendant's wire was open to observation, and would be detected by the most casual examination, Trout either failed to examine the wires, or, having examined them and discovered the abrasion, he nevertheless put himself in contact with the wire at the point of abrasion, and at the same time brought himself in contact with some other conductor so as to form a short circuit. In either case, his own negligence was the cause of his receiving the shock. Franklin v. Railroad, 97 Mo.App. 482; Marshall v. Hay Press Co., 69 Mo.App. 260; Pohlmann v. Car & Fdy. Co., 123 Mo.App. 228; Judge v. Electric Light Co., 21 R. I. 128, 23 R. I. 208; Geismann v. Missouri-Edison Elec. Co., 173 Mo. 675; Ryan v. Transit Co., 190 Mo. 635; Wormell v. Railroad, 79 Me. 405; Epperson v. Tel. Co., 155 Mo. 375; Memphis Elec. Co. v. Simpson (Tenn.), 109 S.W. 1157; Railroad v. Simmons, 107 Tenn. 392; Railroad v. Dorsey, 119 Ga. 363; Ft. Worth L. & P. Co. v. Moore (Tex.), 118 S.W. 736; Cincinnati Elec. Co. v. Archdeacon (Ohio), 88 N.E. 127; Bergin v. Telephone Co., 70 Conn. 54; Memphis Elec. Co. v. Simpson (Tenn.), 109 S.W. 1155.
J. E. Turner and Jos. A. Wright for respondent.
(1) Plaintiff's deceased husband was not, at the time of his death, employed by or working for the defendant, and therefore there was no assumption of risk on his part, hence the Junior case is not applicable to the one at bar. Knolton v. Lighting Co., 117 Iowa 145; Illingsworth v. E. L. Co., 161 Mass. 583, 25 L.R.A. 552; Stevens v. G. & E. Co., 73 N.H. 159, 70 L.R.A. 119; Newark E. L. & P. Co. v. Garden, 78 F. 74, 37 L.R.A. 725; Perham v. Electric Co., 33 Ore. 451, 40 L.R.A. 799. (2) Where two companies by agreement or otherwise, use the same poles upon which to string their electric wires, they are joint users, and each owes a duty to the employees of the other company using said pole, of using the highest degree of care in insulating the wires that are heavily charged with a current of electricity of high voltage, and in keeping them so insulated, and if either of them fail so to do it is negligence, and the one failing is liable for the injuries sustained by the employees of the other company; said employees not being trespassers or licensees, but invitees or employees of a joint user. Day v. L. P. & I. Co., 136 Mo.App. 274; Zeihm v. Electric Co., 104 Md. 48; Brown v. Electric, 90 Md. 406; 2 Joice on Electric Law, par. 666. A. (3) A person who, for private gain or profit, sends a current of electricity, the most dangerous agency known to man, out over the streets and alleys in a city where persons have a right to go, and where it is known they will go from time to time, is bound to exercise the utmost care to prevent the escape of the electric current, and, if he fails so to do, becomes liable. Geisman v. Electric Co., 173 Mo. 654; Winkleman v. Electric Light Co., 110 Mo.App. 184; Gararandi v. Electric Imp. Co., 107 Cal. 120; Haynes v. Gas Co., 114 N.C. 203; McLaughlin v. E. L. Co., 100 Ky. 173; Denver Electric Co. v. Simpson, 21 Colo. 371; Leavenworth Coal Co. v. Ratchford, 5 Kan.App. 150; Frauenthal v. Gas Light Co., 67 Mo.App. 1; Larsen v. Railroad, 56 Ill.App. 263; 1 Thompson on Negligence (2 Ed.), sec. 779. (4) A person using wires heavily charged with electricity of high voltage and dangerous to human life, is bound to use the utmost care in the inspection of said wires, and in keeping them free from defects, which duty he owes to all persons who have a right to go thereabouts, whether for business or pleasure. Griffin v. E. L. Co., 164 Mass. 492; Mitchell v. Light & Power Co., 45 S.C. 146; Cook v. Electric Co., 9 Houston (Del.), 306; Texarkana G. & E. Co. v. Orr, 59 Ark. 215; Leavenworth Coal Co. v. Ratchford, 5 Kan.App. 150; Atlantic Consolidated Street Ry. Co. v. Owings, 97 Ga. 663; Turton v. Electric Co., 185 Pa. 406; Larson v. Railroad, 56 Ill.App. 263; Haynes v. Gas Co., 114 N.C. 203; Electric Ry. Co. v. Shelton, 89 Tenn. 423; 1 Thompson on Negligence (2 Ed.), sec. 802; Overall v. E. L. Co., 47 S.W. 442; Ennis v. Gray, 87 Hun. 355. (5) A defendant who has failed to exercise ordinary care, according to the degree of danger, and whose negligence or lack of care has resulted in injury, will not be excused by the fact that he could not have reasonably anticipated the injury at that particular time. Hoepper v. Hotel Co., 142 Mo. 378; Miller v. Railroad, 90 Mo. 389; Graney v. Railroad, 140 Mo. 89; City of Dixon v. Scott, 181 Ill. 116, 21 Am. and Eng. Ency. of Law (2 Ed.), 488. (6) A defendant whose negligence has directly contributed to plaintiff's injury will not be excused by the fact that other causes for which he was not responsible have also contributed proximately to the injury in such a manner that but for them the injury would not have happened. Lane v. Mfg. Co., 160 Mo. 608; Bassett v. St. Joseph, 53 Mo. 290; Musick v. Dold Pkg. Co., 58 Mo.App. 322; Brennan v. St. Louis, 92 Mo. 482; Hull v. Kansas City, 54 Mo. 598; Waller v. Railroad, 59 Mo.App. 410; Meade v. Railroad, 68 Mo.App. 92; McDermott v. Railroad, 87 Mo. 285; Ring v. Cohoes, 77 N.Y. 83. (7) The question of contributory negligence of the plaintiff's deceased husband was a question of fact properly submitted to the jury. Snyder v. Telephone Co., 112 N.W. 776; Gloucester Electric Co. v. Dauer, 153 F. 139; Memphis Co. v. Bell, 152 F. 677; Hausler v. Electric Co., 88 N.E. 561; Leque v. G. & E. Co., 113 N.W. 946; Dutcher v. Electric Co., 108 N.Y.S. 567, 88 N.E. 1118.
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 poles 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 seven thousand dollars 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 employee 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...
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