Byerly v. Consolidated Light, Power & Ice Co.

109 S.W. 1065, 130 Mo. App. 593, 1908 Mo. App. LEXIS 279

Opinion

JOHNSON, J.

Plaintiff, the widow of Williard E. Byerly, deceased, alleges in her petition that the death of her husband was caused by the negligence of. defendant in maintaining wires carrying electric currents of high power in dangerous proximity to the place where her husband was required to work. At the conclusion of the introduction of plaintiff’s evidence, the court gave the jury an instruction peremptorily directing a verdict for defendant, whereupon plaintiff took a nonsuit with leave to move to set the same aside and, in due course of procedure, brought the case here by appeal.

At the time of his death which occurred in the morning of August 4, 1906, Byerly was working at mill No.-5 of the Mercantile Mining Company situated near Webb City but outside of its corporate limits. The production of lead and zinc from ore was the object of the operations conducted at the mill and Byerly was employed to work at the “sludge table” an appliance for the separation of fine ore from sand. Water runs from the table continually and the operators are likely while at work to have their clothing moistened. A large tailings elevator was operated in connection with the mill. Its function was to carry off the refuse or tailings from the mill and deposit them in a pile. The spout from which the tailings (mixed with water) were discharged on to the pile was about 125 feet from the sludge table and in plain view therefrom. When the pile, which was situated on the mill premises, grew to the height of the spout, a mill trough or flume was put in to carry tbe tailings away from tbe spoilt for deposit and, as necessity demanded, tbe length of tbe flume was extended from time to time. By tbis process, tbe pile bad reached a length of, perhaps, 150 feet. Its highest point was at tbe end under tbe spout where it bad attained a height of about1' forty-Ave feet. From that point, it gradually sloped to tbe ground. The flume ran along tbe crest and therefore sloped downward from tbe spout to tbe place of discharge. Occasionally, tbe flume became choked by tbe stoppage and accumulation of refuse and it was one of Byerly’s duties to keep it clear. To do tbis, it was necessary for him to ascend tbe pile to tbe place w7here tbe flume was choked and to remoye tbe obstruction with a scoop shovel. Tbe mill bad been in operation about four months and Byerly bad been employed during that time in the capacity described. Defendant was engaged in tbe business of generating and supplying electricity for use in various mining mills and plants in that vicinity. Its product was distributed from its poAver bouse by means of wires carried on poles. One of its lines carrying four wires was built across tbe premises of tbe Mercantile Mining Company. Tbe wires were strung about twenty-five feet above tbe ground and were uninsulated. When built, tbe line entirely cleared tbe tailings pile, but in time as tbe pile grew and extended in length, deposits were made under tbe line until on tbe day ‘ of tbe occurrence in question, tbe lowest wire was not more than five feet above tbe crest of the pile underneath. About a week before, defendant at the request of tbe mining company, bad elevated the wires by raising tbe height of one of tbe poles in that section some eight or ten feet, but in tbe meantime tbe pile bad groAvn to tbe height stated.

Tbe nature and conditions of tbe right given by tbe mining company to defendant to build and maintain tbe line- over its premises are not disclosed and we have no means of knowing which one of tbe parties was burdened with the duty of preventing interference between the expanding refuse pile and the wires. All we know is that the line was there, presumably by permission of some sort from the mining company and that the wires were raised by defendant at the request of the mining company, but we do not know whether the latter work was done at the expense of defendant and in performance of a contractual obligation imposed on it by the terms of the grant or was done at the charge of the mining company. No one witnessed the death of Byerly. He was observed to leave the sludge table and ascend the tailings pile for the purpose of clearing the flume. An hour afterward, the engineer of the mill saw him lying on the pile, went to him and found him dead. He was lying directly under the wires, partly on one side and partly on his face, his head “pointing up hill, his mouth filled with the wet tailings. Across his forehead, extending from the hair to one eye, was a gash cut to the bone. There was no other mark of violence on his person. His hat of felt was wet and bore a discolored spot on the front. There is no evidence that hat or clothing were wet when he ascended the pile or that the discoloration mentioned was produced by scorching. Rigor mortis set in early and continued long. Brown spots appeared on the body indicative of capillary congestion. These things, the experts say, were symptomatic of death produced or accompanied by intense nervous shock. The flume near which the body was found was constructed of sheet iron turned up at the edges £o form a trough. The shovel used was an ordinary iron scoop with metal strips running up the handle. It appears quite clearly that defendant knew of the growth of the tailings pile under its wires. Further, it is shown that. Byerly was required to go on the pile three or four times every day; that children played there and on Sundays visitors were accustomed to go there. The wires with which it was possible for Byerly to have come in contact carried a powerful current of electricity. He knew the wires were uninsulated and that contact with them would be bigbly dangerous.

Plaintiff alleges in the petition: “That it was the-duty of defendant company to so string its said wires far enough above the said tailing pile and flume and. spout, aforesaid, as to enable the employees of the said Mercantile Company to pass under the same without coming in contact therewith, and to so keep and maintain its said wires; that it was the duty of the defendant to keep its said wires strung taut, so as to prevent the same from sagging and thereby coming down, and in contact with the aforesaid employees, and particularly the plaintiff’s ' said husband, and to keep said wire and wires insulated and guarded as a necessary protection to prevent injury to the employees, aforesaid and also to inspect its said wires from day to day at frequent intervals,- as a necessary precaution to prevent injury to the employees aforesaid, and it was also the duty, of the said defendant to inform persons whom it knew would, from time to time, in the performance of their duty as the employees of the said Mercantile Company, necessarily pass under or near its said wires, of the liability of said wires to fall or sag, and that said wires were not insulated, and carried a dangerous voltage of electricity, as a necessary precaution for the lives and bodies of such employees.”

The cause of action asserted is predicated on the negligent breach of such duties. The answer raises the issue of defendant’s negligence and presents contributory negligence and assumption of risk as affirmative defenses. e

The first question suggested by the facts stated is whether defendant owed a duty to the servant of the proprietor of the land crossed by its wires ^either to-insulate its wires or to maintain them at a height beyond the reach of persons rightly on the premises who were likely to pass under them. No contractual relation existed. between defendant and Byerly. He was the servant of the mining company at work on its premises and in its business. It owed him the .duty incidental to the relationship of master and servant of exercising reasonable care to provide him a reasonably safe place in which to work. Defendant owed him no such duty, nor does it appear as between defendant and the mining company, the former was charged with the contractual obligation to keep its wires out of the way of the constantly expanding tailings pile. But freedom from such obligations did not absolve defendant from the duty of exercising the greatest care to protect the employees of the mining company, whose work compelled them to come under the wires, against risk of injury therefrom. The wires carried a high voltage of electricity, a force invisible, subtle, poiverful, inconceivably swift in motion,, eccentric, and of great conductibility. The utility of this agency is fully appreciated by the courts and no desire is entertained to restrict its use, but the fact that when it is not kept closely confined within appointed channels, its tendency to break loose and its capacity for evil are so great, impels the courts to lay down the rule that persons who engage in the business of transmitting highly destructive currents of electricity must exercise the highest degree of -care to prevent, their escape from the carrying Avires. This principle was recognized by the Supreme Court in Geisman v. Electric Co., 173 Mo. 1. c. 674, where it is said: “Electricity is one of the most dangerous agencies ever discovered by human science, and OAVing to that fact it was the duty of the electric company to use every protection which was ac-. cessible to insulate its wires at all points where people have the right to go, and to use the utmost care to keep them so ;'and for personal injuries to a person in a place where he has a right to be Avithout negligence upon his part contributing directly thereto, it is liable in damages. [McLaughlin v. Louisville Electric Light Co., 100 Ky. 173.] And by this court in Winkelman v. Electric Light Co., 110 Mo. App. 184, where, speaking through Judge Ellison, we declared that “considering the noiseless, hidden and destructive power of electricity, a reasonable effort to control it is nothing short of the utmost effort — nothing less than the utmost effort would be a reasonable effort.”

In Telephone Company v. Sakolo, 73 N. E. 143, the Appellate Court of Indiana applied the rule that the transmitter of electricity owes the duty defined in the cases from which we have quoted to persons rightly on private property crossed by his wires though no relation exists between him and such persons: “There is reason in such cases for making some distinction between liability for injuries to persons on private property and liability for injuries to persons using a public street. But if the person injured is not a trespasser and has a right to be where he is wdien injured, the duty must extend to him to maintain the wires in a safe condition although the wires are maintained by the company across private property.” [Citing Keasby on Electric Wires (2 Ed.), 247.]

Knowing, as it did, that the premises of the mining company were a place of industrial activity where many men were employed and that the tailings pile had approached dangerously close to the wires, it was the duty of defendant either to substitute insulated wires or to elevate those in place beyond the danger line. It is no excuse for it to say that the mining company was negligent in raising the pile and that Byerly was negligent because* he assisted in that work. Presumably, Byerly was doing his master’s bidding — a thing his duty as servant justified him in doing as long as the act he was ordered to perform was not glaringly and imminently ‘dangerous. Conceding for argument that the mining company was guilty of a negligent breach of its duty to be reasonably careful to provide a reasonably safe place for its servant, tbe most that may be said of that negligence is that it co-operated with tbe negligence of defendant to make tbe place dangerous. Neither of sucb tortfeasors should be permitted to advance tbe negligence of tbe other as a legal justification or excuse of bis own wrong.

Finding that defendant was negligent, tbe next subject of inquiry is whether tbe evidence reasonably supports tbe inference that sucb negligence was tbe producing cause of Byerly’s death. We sanction tbe contention of plaintiff that the causal connection needs not be shown by direct and positive evidence, but may be show by other facts and circumstances and that in tbe consideration of a demurrer to tbe evidence, every rea-sonablé inference should be indulged in favor of tbe plaintiff. But tbe rule is elemental that tbe burden remains with plaintiff to tbe end of tbe case to establish by proof not only the fact of tbe negligence averred, but also to show a direct connection between such negligence and tbe injury. Where tbe ultimate fact is not susceptible of direct proof, its existence must directly follow as a reasonable conclusion from its basic facts and circumstances, and it may be stated as an axipmatic rule that whenever court or jury is left by tbe evidence in a situation where, in order to find tbe ultimate fact alleged, they must piece out the facts adduced with conjecture or supposition, the plaintiff must be held to have failed in bis proof. Where tbe evidence shows tbe injury might have been caused by the negligent act, but, in its aspect most favorable to plaintiff, is just as consistent with tbe inference that the injury might have been produced by another cause, to send tbe case to tbe jury would be to accord them the right, to make an arbitrary choice between equally probable but unproved conclusions and thus the verdict, if for tbe plaintiff, would be based not entirely on evidence, but in part on mere speculation and conjecture. This would mean a reversal of tbe rule, imposing the burden of proof on the plaintiff, since the defendant, in order to prevent the jury from making him the victim of conjecture, would be forced to assume the burden of showing that his negligence did not produce the injury. [Dunphy v. Stock Yards Co., 118 Mo. App. 1. c. 516; Trigg v. Ozark Co., 187 Mo. 227; Goransson v. Mfg. Co., 186 Mo. 300.]

The application of this principle to the facts before us leads us to say that plaintiff has failed in her proof. The incised wound on -Bverly’s forehead indicated that he fell forward heavily and struck his head violently on the sharp edge, either of the flume or of the shovel. The cause of his fall is purely conjectural. It may be that his head or the uplifted shovel came in contact with the wire and he was stricken with a powerful charge of electricity, or it may be that he made a misstep, lost his balance and, in an effort to regain it, pitched forward, struck his head on the flume so violently that he became unconscious and perished from suffocation. caused by his mouth becoming filled with mud. Other reasonable suppositions respecting the manner of his death might be indulged, but these sufficiently serve to exemplify our conclusion .that the cause of the fall is altogether speculative. The fact that no burn was left on his body or clothing, though not conclusive, nevertheless, is against the theory that he received an electric shock. The post-mortem indications are as consistent with one theory as with the other, and we do not think the opinion of the undertaker Avho embalmed the body respecting the cause of death rises to the dignity of evidence. In such state of proof, it would be unjust to send the case to the jury and we must hold that the learned trial judge committed no error in sustaining the demurrer to the evidence.

.The views expressed relieve us from the necessity of discussing the questions of contributory negligence and assumption of risk.

The judgment is affirmed.

All concur.