Williams v. Springfield Gas & Electric Company
| Decision Date | 29 March 1918 |
| Citation | 202 S.W. 1,274 Mo. 1 |
| Parties | FRANCIS P. WILLIAMS, by his Next Friend, JOHN T. WILLIAMS, v. SPRINGFIELD GAS & ELECTRIC COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. Arch A. Johnson, Judge.
Affirmed.
Delaney & Delaney for appellant.
(1) No evidence should have been admitted under the petition. Because: (a) On the face of the petition and on the opening statement following the allegations of the petition, it does not appear that the defendant owed any duty whatsoever to the plaintiff, even considering him as an immature child incapable of contributory negligence. (b) On the face of the petition and on the opening statement (to be specific) it does not appear that defendant created, or was responsible for the creation of an attraction to children, or an attractive nuisance, or that a condition existed of which defendant had knowledge or was chargeable with knowledge or notice, or that the conditions existing imposed any duty upon defendant in favor of plaintiff. (c) On the face of the petition and upon the opening statement, defendant was not chargeable with the duty of anticipating that children, or that plaintiff, would be attracted by the house, scaffold and tree into close proximity to its (defendant's) wires through the tree. (d) On the face of the petition and on the opening statement, plaintiff was guilty of such contributory negligence as precludes a recovery. (e) On the face of the petition and on the opening statement, the omission of defendant to insulate its wires was not the proximate cause of the injury sustained. (2) The defendant did not owe any duty to plaintiff to install or maintain uninsulated wires. The doctrine of "attractive nuisance," or "attraction to children" is bottomed upon the principle of the so-called "turn-table" cases. The application of the "turn-table" cases was gradually extended until the principle was lost sight of and a halt was made. The tendency is now to restrict the application and, in many jurisdictions, the principle is confined to turn-table cases pure and simple. This is the general trend. In Missouri especially the courts refuse to extend the principle and restrict liability to literal turntable cases. Kelley v Benas, 217 Mo. 1; Overholt v. Vieths, 93 Mo 422-429; Witte v. Stifel, 126 Mo. 295; Barney v Railroad, 126 Mo. 372; Moran v. Pullman Co., 134 Mo. 641; Schmidt v. Distilling Co., 90 Mo. 284; Curley v. Mo. Pac. Ry., 98 Mo. l. c. 17; Rushenberg v. Railway, 109 Mo. 112; Smith v. Dold Pkg. Co., 82 Mo.App. 9; Marcheck v. Klute, 133 Mo.App. 280; Stall v. Tel. Co., 141 Mo.App. 183. (3) Defendant was not charged with the duty of anticipating that children would be likely to be attracted by the house under construction, the scaffold and the tree, or would be likely by reason of such condition to climb into said tree. What is probable, must be considered, not what is possible. Sullivan v. Railway, 133 Mo. 1; Brew. Assn. v. Talbot, 141 Mo. 674; Fuch v. St. Louis, 167 Mo. 645; Strack v. Tel. Co., 216 Mo. 601; Porter v. Brew. Assn., 24 Mo.App. 1; Clark v. Railroad, 39 Mo. 184; Balentine v. Railroad, 40 Mo. 491; Davis v. Railway, 89 Mo. 340; Turner v. Haar, 114 Mo. 347; Mill Co. v. Transit Co., 122 Mo. 278; Walling v. Railroad, 101 Mo. 631; Otis v. Railroad, 112 Mo. 622; Flori v. St. Louis, 69 Mo. 341. Even if defendant owed a duty to plaintiff and omitted such duty, such omission, to-wit, the uninsulated wire through the tree, was not the proximate cause of the accident and injury. The proximate cause of this injury and damage is the active, independent, intervening action of the plaintiff himself, in conjunction with the breaking of the limb of the tree caused by his own conduct. Fuchs v. St. Louis, 167 Mo. 647; Luehrmann v. Light Co., 127 Mo.App. 213; Brubaker v. Light Co., 130 Mo.App. 447; Foley v. McMahon, 114 Mo.App. 444; Fulwider v. Trenton Co., 216 Mo. 582; Stone v. Railroad, 171 Mass. 536; Cole v. German Society, 124 F. 114; Clifford v. Cotton Mills, 146 Mass. 47; Ins. Co. v. Tweed, 7 Wall. 44; Railroad v. Kellogg, 94 U.S. 469; Railroad v. Hickey, 166 U.S. 521; Read v. Nichols, 118 N.Y. 224; Cuff v. Railroad, 35 N. J. L. 17; Curtin v. Somerset, 140 Pa. St. 70. (4) On all the evidence and the law, the plaintiff was at least guilty of concurrent, contributory negligence and cannot recover. The evidence shows that he is unusually bright; that he was permitted to go at will about the city and was capable of caring for himself; that in the general sense in which it is understood, he knew what electricity was; that it furnished light and power and that wires were used for the transmission; that electricity would hurt, would shock, was dangerous. Taking his testimony in its entirety on the question, that he knew the wires were there and saw them is established beyond all cavil and doubt. On such a record there was nothing to submit to the jury. There was no room for drawing different inferences. Fink v. Railway, 143 S.W. 568; Fry v. Transit Co., 111 Mo.App. 324; Heinzle v. St. Ry. Co., 213 Mo. 102; Campbell v. Surburban Ry., 175 Mo. 161; Lynch v. St. Ry. Co., 112 Mo. 420; Schmitz v. Railroad, 119 Mo. 256; Ridenour v. Cable Co., 102 Mo. 270; Mann v. Railroad, 123 Mo.App. 486; McGee v. Railroad, 214 Mo. 530; Berry v. Railroad, 214 Mo. 593. Instruction 1, given at request of plaintiff, does not correctly declare the law and constitutes reversible error. It is an instruction on the whole case, warrants and directs a verdict for plaintiff if the jury find as true the facts recited, and yet it utterly omits and ignores the issues of plaintiff's contributory negligence and every other question except to find that the plaintiff was at play. An instruction purporting to cover the whole case and directing a verdict must submit every issue involved in the case, especially the defenses. Scanlan v. Gulick, 199 Mo. 449. Where two separate instructions are in conflict the correct one does not cure the erroneous one, since the appellate court cannot tell by which one the jury was governed. Shepperd v. Transit Co., 189 Mo. 362; Porter v. Railway, 199 Mo. 82; Glasgow v. Met. St. Ry. Co., 191 Mo. 374; Brokerage Co. v. Gates, 190 Mo. 403. The language used by counsel for plaintiff was highly improper and prejudicial and constitutes ground for reversal. He used language calculated to distract the minds of the jurors from a calm deliberation of facts. He injected into the case elements of damage not allowable. Taken as a whole and especially the parts objected to, the language is not only objectionable on the issue of amount of damage to be awarded, but it distracted the minds of the jury on the vital question of liability or non-liability. Invective, abuse, sympathetic appeal, took the place of evidence, or rather supplied the failure of evidence and the jury tried the case in every phase as individual fathers or brothers or sons -- and not as jurors. Haynes v. Trenton, 108 Mo. 123; Evans v. Trenton, 112 Mo. 390; Morgan v. Durfee, 69 Mo. 469; Ritter v. Bank, 87 Mo. 574; Beck v. Dowell, 111 Mo. 506.
Talma S. Heffernan, Patterson & Patterson and J. M. Johnson for respondent.
(1) The duty imposed upon a lighting company which for private gain conducts powerful currents of electricity along and over public highways is that of the highest degree of care to use every protection to insulate its wires at all points where people have a right to go or be for business or pleasure. Geismann v. Electric Co., 173 Mo. 674; Gannon v. Gaslight Co., 145 Mo. 502; Dolan v. Gaslight Co., 145 Mo. 550; Hoover v. Elevated Ry. Co., 140 S.W. 321; Brubaker v. K. C. Co., 130 Mo.App. 439; Harrison v. K. C. Co., 195 Mo. 606. (2) There is practically no dispute that the insulation was off of defendant's wires and had been for sometime, so long that strips of insulation hung down in plain view of pedestrians. And plaintiff's injuries are further proof of the want of insulation which caused them. (3) Was the plaintiff guilty of contributory negligence to such a degree that it became the proximate cause? It is undisputed that plaintiff was a licensee of the property owner in playing around the house and premises. The same is true of the tree; if it be on the property of Mrs. Hughes, then plaintiff was a licensee, and if it be on the street, plaintiff had as much right in it as defendant; he was compelled there by the laws of nature which causes all boys to climb trees, and was not restrained from there by any legal prohibition. The defendant was not rightfully in the tree with uninsulated wires and plaintiff could not be a trespasser against defendant who owned neither the street nor the abutting property. Now the breaking of a limb and falling of plaintiff concurred with defendant's negligence in causing the injury and the courts of the State have plainly stated the rule of liability in such cases. "The negligence of the party inflicting the injury and not that of the one first at fault is regarded in law as the sole or proximate cause of the injury." Maginnis v. Railway, 182 Mo.App. 694; Musick v. Packing Co., 58 Mo.App. 322; Lote v. Mfg. Co., 160 Mo. 626; Day v. Light Co., 136 Mo.App. 274; Beverly v. Co., 130 Mo.App. 593; Von Treba v. Gaslight Co., 209 Mo. 648.
OPINION
This cause was transferred here by the Springfield Court of Appeals. The appeal is from a judgment for damages for injuries suffered by respondent, then nine years old, from contact with appellant's electric wires. These wires carried a powerful current, and were so placed that they passed through a tree which stood on or very near the line dividing a public alley from a building lot in Springfield. The tree was thirty or more feet high and its lower branches were near the...
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