Werner v. Metropolitan St. Ry. Co.

• Decision Date: 31 May 1909
• Citation: 138 Mo. App. 1,119 S.W. 1076
• Parties: WERNER v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

119 S.W. 1076

138 Mo. App. 1

WERNER v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

May 31, 1909.

1. MASTER AND SERVANT (§ 276) — INJURY TO SERVANT — EVIDENCE OF CAUSE.

Evidence, in an action for injury to a servant, of his scream of pain, followed immediately by his unconsciousness, the subsequent manifestation of the effects of intense nervous shock, his close proximity to a powerful current of electricity and to instrumentalities by which it could readily be diverted to his body, with an absence of any other cause for the powerful stroke inflicted on him, supports a reasonable inference, based entirely on facts and circumstances in proof, and not in part on speculation, that the stroke was from the electric current.

2. MASTER AND SERVANT (§ 276) — INJURY TO SERVANT — EVIDENCE OF CAUSE.

Evidence that an employé was injured by electricity, the circuit being closed by his contact with one of two things, is enough, without showing which of the two things it was, when the master is liable in either case.

3. MASTER AND SERVANT (§ 153) — INJURY TO SERVANT — NEGLIGENCE OF MASTER.

It is negligence for the master to send, without warning of the danger, a young and inexperienced

servant to work, in a poorly lighted place, with a pole containing practically an uninsulated wire charged with a heavy current of electricity; there being iron and wet objects close at hand, his contact with which will close the circuit.

4. MASTER AND SERVANT (§ 218) — INJURY TO SERVANT — ASSUMPTION OF RISK.

Where a master sends a young and inexperienced servant to work in a dangerous place without warning, the risk of injury from such negligence is not one of the natural and incidental risks assumed by the servant.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by Albert Werner against the Metropolitan Street Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

John H. Lucas and Warner, Dean, McLeod & Timmonds, for appellant. Boyle, Guthrie, Howell & Smith, for respondent.

JOHNSON, J.

Action by a servant against his master to recover damages for personal injuries alleged to have been caused by the negligence of the master. Plaintiff had judgment for $3,000, and defendant appealed.

Defendant operates a street railway system in Kansas City using electricity for motive power, and at the time of the injury, August 8, 1907, maintained a car barn at Eighteenth and Olive streets. A damaged car had been run into the barn for repairs. It had been raining, and the car was wet. The trolley pole had been bent in the middle accidentally to a V shape with the apex pointing upward and the end bent downward and outward. The car was run to a place in the barn where the light was poor, and plaintiff was ordered to the top by defendant's foreman and was told to pull the trolley pole away from the trolley wire against which the apex of the pole rested. Plaintiff did this with some difficulty, and then the foreman told him to restore the contact. He obeyed, and in a few moments was again ordered to break the contact between the pole and wire. He was in the act of complying with this order, when witnesses heard him suddenly scream in pain and saw him sink to the roof unconscious. He rolled off the roof and fell to the floor.

It is the theory of plaintiff that a severe shock of electricity was the cause of his injury. The trolley wire, touched by the elbow of the pole, carried a heavy current, and the evidence shows the existence of two means by which the body of plaintiff might have served to ground the current. A wire ran through the trolley pole, and on account of its wet condition the insulation afforded by the pole might have been insufficient to prevent the escape of the current, and if plaintiff, at the time he held the pole in his hand, touched some grounded conductor of electricity, a circuit thereby would be opened through his body. There were two such conductors within reach of his body; one the wet car, and the other a pipe of a sprinkling system in the barn. On account of the closeness of the overhead wires to the top of the car, plaintiff was required to work in an awkward and cramped position, and when his clothing became wet, as it must have done in the positions he was compelled to take, the subsequent contact between his body and the wet roof while he was holding the pole would close the circuit, so his expert witness testified. The same result would have followed a contact between plaintiff's body and the sprinkler pipe, which extended horizontally the length of the car on a level with the roof and about six inches therefrom. It would have been quite natural for plaintiff to grasp this pipe with one hand for support while he used the other hand to wrench the trolley pole away from the wire. Plaintiff has no recollection of how he received the shock. One of its effects was to shatter his memory and impair his understanding and power of concentration. No witnesses saw him either touch the sprinkler pipe or kneel or squat on the wet roof. Witnesses simply heard him cry in distress and saw him sink limply to the roof and roll off. The petition alleges: "That by reason of the condition of said trolley pole being bent and requiring handling in a strained and awkward position, and of said car and of the location of said car with reference to other objects so that there was not sufficient space above to work easily, and that there were dangerously near grounded rods, pipes, and other conductors of electricity, and of the existing darkness at the place where such...