Von Trebra v. Laclede Gaslight Co

• Decision Date: 26 February 1908
• Parties: VON TREBRA v. LACLEDE GASLIGHT CO.
• Court: Missouri Supreme Court

108 S.W. 559

209 Mo. 648

VON TREBRA v. LACLEDE GASLIGHT CO.

Supreme Court of Missouri, Division No. 1.

February 26, 1908.

1. TRIAL — TAKING CASE FROM JURY — DEMURER TO EVIDENCE — OPERATION AND EFFECT.

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

2. ELECTRICITY — INJURIES INCIDENT TO USE — ACTIONS.

In an action for injuries from contact with an electric wire, it is not necessary for plaintiff to prove that the insulation was off the wire at the point of contact; it being sufficient to show that defective insulation caused the injuries, without fault on the part of plaintiff, and that he was rightfully where he was.

3. SAME.

When injury or death is caused by contact with an electric wire, it is conclusively presumed that the insulation of the wire was defective.

4. SAME.

In an action for death from contact with an electric wire, evidence examined, and held to make out a prima facie case on the part of plaintiff sufficient to go to the jury.

5. SAME.

In an action for death from contact with an electric wire, testimony that "circular loom" insulation was better and safer than that used by defendant was not admissible under the allegation that "defendant had allowed its wires to become defective in insulation and in a dangerous condition."

6. APPEAL — RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW — VARIANCE.

Where the evidence introduced was a variance, but the party injured failed to object, he waived the question of pleading, and cannot afterwards complain thereof.

7. SAME.

In an action for death from contact with an electric wire, where it was alleged that "defendant had allowed its wires to become defective in insulation and in a dangerous condition," testimony that "circular loom" insulation was better and safer than that used by defendant, though a variance, is not such an entire failure of proof as would make inapplicable the rule that a variance not objected to is waived.

8. ELECTRICITY — INJURIES INCIDENT TO USE — ACTIONS.

In an action for death from contact with electric wires, evidence examined, and held to show that it was defendant's wires which caused the death.

9. NEGLIGENCE — ACTIONS — CONTRIBUTORY NEGLIGENCE — BURDEN OF PROOF.

Contributory negligence not only must be pleaded, but the burden of proving it rests upon defendant.

10. APPEAL — REVIEW — FINDINGS — VERDICTS ON CONFLICTING EVIDENCE.

In an action for death, where there was evidence raising the question of contributory negligence, and the issue was properly submitted to the jury, the finding for plaintiff was conclusive on appeal.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Bertha Von Trebra against the Laclede Gaslight company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action which was instituted in the circuit court of the city of St. Louis by the plaintiff, who is the widow of Ernest C. Von Trebra, against the defendant, to recover the sum of $5,000 damages for the alleged negligent killing of her husband in that city on August 20, 1904. The petition, omitting formal parts, is as follows: "Now comes the plaintiff, by her attorneys, and for her cause of action herein avers: That the defendant is a corporation duly organized under the laws of the state of Missouri, and engaged in business in the city of St. Louis, and was at the time hereinafter mentioned engaged in manufacturing and furnishing electricity for light and power to its customers and consumers in said city. That the defendant owned, maintained, and operated in said city, for said purposes, at said times, a system of wires which were strung on poles erected in the streets, by which means the electric current was carried over, upon, and through the streets of said city, from its plant to its various consumers, and had and maintained certain such wires on a pole belonging to the Kinloch Telephone Company, which stood on the southeast corner of Broadway and Dock streets, in said city, at the time hereinafter stated, and which said wires carried a high and dangerous voltage of electricity. That plaintiff was the lawful wife of Ernest C. Von Trebra, hereinafter named, until his decease, as hereinafter shown, and is now his widow. That on the 20th day of August, 1904, the said Ernest C. Von Trebra, husband of plaintiff, then and there lawfully and of right being engaged in the line of his duty as an employé of the Union Electric Light & Power Company, on and upon the said telephone pole on the southeast corner of Broadway and Dock streets aforesaid, came in contact with the said wires of defendant thereon, which had been allowed by defendant to become defective in insulation, and were in a dangerous condition, and was thereby shocked, burned, thrown to the ground, and immediately killed. That by reason of the neglect of defendant, its servants and employés, the said wires of defendant which thus caused the death of plaintiff's husband had been allowed to become defective in insulation and dangerous to human life, all of which was well known to defendant, or in the exercise of due and proper attention and diligence in the care thereof should have been so known. That said deceased so came to his death because of the negligence and misconduct of defendant, and without his own fault or negligence, and because of said wrongful act, negligence and default of defendant the plaintiff has been damaged by the death of her said husband in the sum of $5,000." The answer consists of a general denial and a plea of contributory negligence.

A trial was had before the court and jury: and the plaintiff introduced evidence tending to prove: That at the time of the accident she was the wife of the deceased, and that he was a lineman and in the employ of the Union Electric Light & Power Company, and was engaged in the line of his duty. That a pole had been erected by the Kinloch Telephone Company at the corner of Broadway and Dock streets to support its wires used in the distribution of electric currents furnished to its customers. The defendant also used that pole for similar purposes. Four of its wires running north and south were attached to a cross-arm, 10 feet long, fastened to that pole, two of which carried currents of electricity from the generating plant of the defendant, and the other two carried the return currents. That those currents of electricity were very strong, of high voltage, and deadly, when man or beast came in contact with them. These wires were strung to the two ends of the cross-arm. Above this arm of the defendant a new red arm had been fastened, which belonged to the Union Electric Light & Power Company, the company in whose employ was the deceased. This arm was about 18 inches above the Laclede arm, and carried the wires of the Union Company, and attached in the same manner as were those of the Laclede wires. There were also attached to the same pole, but on separate and higher arms, wires of the Kinloch Telephone Company. These arms were five or six in number. All arms of all of the companies were attached to the north side of the pole, which was called the front side. On the other side, called the back, connections were run by the defendant company to adjoining property for the purpose of furnishing electricity for light, heat, and power. These connections were made in the following manner: The wire carrying the current from the generating plant was cut, a new wire was attached, led across the back — that is, the south — side of the pole, and connected with the lamp and machinery to be furnished; and these lamps and machinery were then connected with the return wire, led across the same side of the pole, and connected with the wire carrying the current of electricity back to the generating plant. At the time of the injury the wires of the defendant company carried about 2,000 volts, and those of the Union Company carried about 500 volts, of current. Von Trebra knew those facts. Either current was sufficient to knock a man from the pole, if a good contact was had, and both would kill under favorable circumstances. The defendant's wires were on the lowest cross-arm, and they were strung near the ends thereof for the purpose of leaving a space between them large enough to permit a person to pass engaged in the performance of his duties. In mounting a pole the linemen could ascend or descend on either side of the pole, but usually they did so on the opposite...