Hill v. Union Electric Light & Power Co.
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Opinions
WOODSON, J.
— The plaintiff brought this suit in the circuit court of the city of St. Louis against the defendant to recover the sum of $35,000 damages for personal injuries sustained by him through the alleged negligence of the company.
A trial was had before the court and a jury, which resulted in a verdict for the plaintiff for $22,500. In proper time a motion for a new trial was filed, and among other reasons assigned therefor was that the verdict was excessive. After due consideration the* court announced that if the plaintiff would remit $4500 of the verdict the motion would be overruled. In response to that announcement counsel for plaintiff entered a remittitur of $4500, and thereupon the court overruled the motion for a new trial, and entered judgment for the plaintiff for $18,000. In proper time and in due form defendant appealed the cause to this court.
There being no question raised as to the sufficiency of the pleadings, they will be put aside with the remark that they were sufficient to present the questions involved in this appeal.
The plaintiff’s evidence tended to show that the city of St. Louis owned a line of poles erected along the north side of Loughborough avenue extending westward from Colorado street. The primary purpose of these poles were to support wires serving the fire de[55]*55partment and telephone system of the city; but prior to the date of the alleged injury the city properly authorized the Bell Telephone Company, the defendant, the Union Electric Light & Power Company, and the Kinloch Telephone Company to construct and maintain cross-arms on said poles and to string and maintain their respective wires thereon. The wires of the city were the top ones, then came those of the Bell Telephone Company, then those of the Union, and lastly those of the Kinloch. Those of the former vrere strung on the south side and those of the latter were on the north side thereof.
The record does not definitely show how many wires all told were strung upon these poles, but they are referred to in various places as a large number, and in one place counsel for defendant state facts which show that there were at least twenty-four of them and also a large telephone cable.
The Union Company’s wires were used for lighting purposes and carried about 2300 volts, and those of the Bell and Kinloch companies were for telephone purposes and each carried about fifty volts. Those of the city, as previously stated, were strung above and are of no consequence in this ease.
On and for years prior to the date of the injury complained of, said poles and wires had been in constant use by the respective parties for the purposes mentioned.
■All of the poles had the ordinary iron step or handholds (iron spikes) driven into them from opposite sides, some two and a-half feet apart, extending upward; that these steps or handholds were to enabel persons to ascend and descend the poles whenever the necessity of the business required.
The ag’ents, servants and employees of the city and those of the three companies named, had equal rights to use the poles for the purposes mentioned. On or about February 15, 1907, the defendant applied to the [56]*56city for permission to remove old and unsuitable poles along the line mentioned, and to substitute new ones in lieu thereof.
In compliance with that application the city issued the following permits (formal parts omitted):
No. 1.
Gentlemen:
In reply to your favor of the 15th inst., permission is hereby granted to replace city’s poles with forty-foot poles located on the north side of Loughborough avenue, first pole west of Michigan avenue to the first pole west of Virginia avenue, and the first pole east and the first six poles west of Idaho avenue, under the following conditions:
Space to be reserved for use of city’s wires.
Same space to be reserved for wire-using companies other than the city that are now occupying space on said poles.
The old poles to be taken down and hauled to city pole yards, Kingshighway and Eager road, free of expense to. the city.
No. 2.
Gentlemen:
' In reply to your favor of the 15th inst., permission is hereby granted to replace city’s poles with forty-foot poles located on the north side of Loughborough avenue, first pole east and first six poles west of Idaho avenue, under the following conditions:
Same space to be reserved for use of city’s wires.
Same space to be reserved for wire-using companies other than the city that are now occupying space on said poles.
The old poles to be taken down and hauled to city’s pole yard, Kingshighway and Eager road, free of expense to the city.
Permission has been granted to the Bell Telephone Company to replace the first pole west of Michigan avenue and • the first pole west of Virginia avenue on the north side of Loughborough avenue.
In pursuance to the authority granted by said permits the defendants had from time to time removed old and unsuitable poles along the street mentioned, and had erected new ones in lieu thereof; all parties retaining the same space upon' the new ones that they occupied upon the old, as well as the same rights to use them as they did the old ones. During the re[57]*57moval of the old poles and the installation of the new, the. business or service of all of said parties was continued, as though no change had been going on, save and except the incidental interferences thereto necessitated by the substitution. The new poles, as the old, were used by the agents, servants and employees of all of said parties in constructing, inspecting and repairing their respective systems of wires.
A short time prior to July 12, 1907, the date when plaintiff was injured, the defendant removed one of the old poles, which was located at a point about two hundred feet west of Colorado street, on said Lough-borough avenue, and had erected a new pole in its stead, with the footsteps or handholds driven therein, but none of the wires of any of the parties had at that time been attached to the pole. In fact, if I correctly understand the record, the cross-arms upon which the wires are strung, had not been installed; at any rate, none of the wires had been attached to that pole, either directly or indirectly; yet it had been erected with the handholds in place, and extended upward among the ' wires of the city and those of the various companies mentioned.
In the night of July 11,1907, there was a wind and rain storm in the city of St. Louis; the velocity of the wind being about thirty miles an hour and the rainfall was about seven-tenths of one inch. Not an unusual storm. In fact, the United States Signal Service records introduced in evidence showed that some ten or twelve days prior thereto the wind traveled at the rate of about fifty miles an hour, and that the rainfall was about one and one-tenth of an inch in depth.
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WOODSON, J.
— The plaintiff brought this suit in the circuit court of the city of St. Louis against the defendant to recover the sum of $35,000 damages for personal injuries sustained by him through the alleged negligence of the company.
A trial was had before the court and a jury, which resulted in a verdict for the plaintiff for $22,500. In proper time a motion for a new trial was filed, and among other reasons assigned therefor was that the verdict was excessive. After due consideration the* court announced that if the plaintiff would remit $4500 of the verdict the motion would be overruled. In response to that announcement counsel for plaintiff entered a remittitur of $4500, and thereupon the court overruled the motion for a new trial, and entered judgment for the plaintiff for $18,000. In proper time and in due form defendant appealed the cause to this court.
There being no question raised as to the sufficiency of the pleadings, they will be put aside with the remark that they were sufficient to present the questions involved in this appeal.
The plaintiff’s evidence tended to show that the city of St. Louis owned a line of poles erected along the north side of Loughborough avenue extending westward from Colorado street. The primary purpose of these poles were to support wires serving the fire de[55]*55partment and telephone system of the city; but prior to the date of the alleged injury the city properly authorized the Bell Telephone Company, the defendant, the Union Electric Light & Power Company, and the Kinloch Telephone Company to construct and maintain cross-arms on said poles and to string and maintain their respective wires thereon. The wires of the city were the top ones, then came those of the Bell Telephone Company, then those of the Union, and lastly those of the Kinloch. Those of the former vrere strung on the south side and those of the latter were on the north side thereof.
The record does not definitely show how many wires all told were strung upon these poles, but they are referred to in various places as a large number, and in one place counsel for defendant state facts which show that there were at least twenty-four of them and also a large telephone cable.
The Union Company’s wires were used for lighting purposes and carried about 2300 volts, and those of the Bell and Kinloch companies were for telephone purposes and each carried about fifty volts. Those of the city, as previously stated, were strung above and are of no consequence in this ease.
On and for years prior to the date of the injury complained of, said poles and wires had been in constant use by the respective parties for the purposes mentioned.
■All of the poles had the ordinary iron step or handholds (iron spikes) driven into them from opposite sides, some two and a-half feet apart, extending upward; that these steps or handholds were to enabel persons to ascend and descend the poles whenever the necessity of the business required.
The ag’ents, servants and employees of the city and those of the three companies named, had equal rights to use the poles for the purposes mentioned. On or about February 15, 1907, the defendant applied to the [56]*56city for permission to remove old and unsuitable poles along the line mentioned, and to substitute new ones in lieu thereof.
In compliance with that application the city issued the following permits (formal parts omitted):
No. 1.
Gentlemen:
In reply to your favor of the 15th inst., permission is hereby granted to replace city’s poles with forty-foot poles located on the north side of Loughborough avenue, first pole west of Michigan avenue to the first pole west of Virginia avenue, and the first pole east and the first six poles west of Idaho avenue, under the following conditions:
Space to be reserved for use of city’s wires.
Same space to be reserved for wire-using companies other than the city that are now occupying space on said poles.
The old poles to be taken down and hauled to city pole yards, Kingshighway and Eager road, free of expense to. the city.
No. 2.
Gentlemen:
' In reply to your favor of the 15th inst., permission is hereby granted to replace city’s poles with forty-foot poles located on the north side of Loughborough avenue, first pole east and first six poles west of Idaho avenue, under the following conditions:
Same space to be reserved for use of city’s wires.
Same space to be reserved for wire-using companies other than the city that are now occupying space on said poles.
The old poles to be taken down and hauled to city’s pole yard, Kingshighway and Eager road, free of expense to the city.
Permission has been granted to the Bell Telephone Company to replace the first pole west of Michigan avenue and • the first pole west of Virginia avenue on the north side of Loughborough avenue.
In pursuance to the authority granted by said permits the defendants had from time to time removed old and unsuitable poles along the street mentioned, and had erected new ones in lieu thereof; all parties retaining the same space upon' the new ones that they occupied upon the old, as well as the same rights to use them as they did the old ones. During the re[57]*57moval of the old poles and the installation of the new, the. business or service of all of said parties was continued, as though no change had been going on, save and except the incidental interferences thereto necessitated by the substitution. The new poles, as the old, were used by the agents, servants and employees of all of said parties in constructing, inspecting and repairing their respective systems of wires.
A short time prior to July 12, 1907, the date when plaintiff was injured, the defendant removed one of the old poles, which was located at a point about two hundred feet west of Colorado street, on said Lough-borough avenue, and had erected a new pole in its stead, with the footsteps or handholds driven therein, but none of the wires of any of the parties had at that time been attached to the pole. In fact, if I correctly understand the record, the cross-arms upon which the wires are strung, had not been installed; at any rate, none of the wires had been attached to that pole, either directly or indirectly; yet it had been erected with the handholds in place, and extended upward among the ' wires of the city and those of the various companies mentioned.
In the night of July 11,1907, there was a wind and rain storm in the city of St. Louis; the velocity of the wind being about thirty miles an hour and the rainfall was about seven-tenths of one inch. Not an unusual storm. In fact, the United States Signal Service records introduced in evidence showed that some ten or twelve days prior thereto the wind traveled at the rate of about fifty miles an hour, and that the rainfall was about one and one-tenth of an inch in depth. On the 12th of July, 1907, the plaintiff, an employee of the Kinloch Company, in the capacity of a “trouble” man, that is, one who is so.well skilled in his business that he is selected as one of the force of several to investigate and find any and all defects and troubles that exist along the lines of the company which interfere [58]*58with or destroy the service of the company and to repair the same when discovered, was sent out to find the trouble with the company’s service on Loughborough avenue west of Colorado street. After resorting to the proper tests he located the trouble at the new pole previously mentioned; and after so doing he ex- . amined the cable-box erected by the Kinloch Company a few blocks from the point of trouble, by which he discovered the character of the trouble, that is, that it was a slight, and not a heavy or dangerous, current of electricity that was passing from some other wire to the one he was directed to investigate. (By the way, the cable-box mentioned, or “terminal junction” as some of the witnesses term it, is so constructed that whenever a heavy or dangerous current passes over the wires of the Kinloch Company, the fuses thereof are instantly burned or blown out, immediately indicating the presence of a dangerous current.) Having thus ascertained that no' deadly current was passing over the wires he was investigating, plaintiff proceeded along the line of wires in search of the trouble, and upon coming to the new pole mentioned he discovered the trouble. It consisted of an entanglement of one of the wires of the Kinloch Company with one of those of the Bell Company, at a point some eig’ht or ten inches from said new pole.
In order to correct the trouble, the plaintiff ascended the pole in the usual manner, and while engaged in disentangling the wires he received the injuries . complained of.
The manner of the injury is best told in'plaintiff’s own language, which is substantially as follows:
“Q. When you went down on that line, tell the jury what you did first? A. I went to the cable-box first.
“Q. Tell the jury what you did and what this is? A. That is the terminal of the cable and the wires were distributed from that terminal out to the line [59]*59wires — aerial wires — and- then they rnn to the telephones, and I go to that cable head — we have fuses, both carbon and metal fuses, and I go over and see that-the line is not grounded. or that the fuses are not open — been opened by heavy current or a high yoltage passing through thajfc wire. I went to that box and found both fuses in good condition and no grounding of the carbon fuses, and I started to trace that line. From that head I g’ot the cable path. The pairs are numbered; I get them from the wire .chief for that line, circuit'4, ánd I trace those wires over that lead until I come to Colorado and Loughborough, and then as I was looking up, I took in the whole situation and saw the wires there and everything looked all right to me, except the wire I was working on, which was what we call ‘crossed up’ with a Bell circuit also, and I climbed that pole and got in position on the pole standing on the steps with one foot and felt around with the knee and the other one, and as I reached for the wire with my hand I reached for the step on the other side to keep my balance — the wires were out to the north side of the pole — and I reached for the south side, and at that time I received a shock, made me unconscious and I don’t know — I didn’t come to until I was in the patrol wagon being hauled away from the spot.
“Q. Did you-touch any other wire or what wires did you touch when you were on that pole? A. I touched the Kinloch wires.
“Q. Did you touch any other wire? A. No, sir.
‘ ‘ Q. When you first approached the pole,what did you do when you first came up there at that point? A. I was looking up toward the wires and found my trouble there and found that the Kinloch wires were' crossed with the wires but they looked all right. I didn’t notice anything wrong — anything particularly wrong.
[60]*60“Q. Did you see anything of any wire on any step? A. No, sir, I didn’t notice anything of that kind.
‘ ‘ Q. How high in the air were those wires of your company? A. I should say twenty or twenty-five feet.
“Q. Does that affect the wfiy you answer as to how those wires were strung between these poles? ■ A. No, the Kinloch was the bottom and the light wire was the next.
“Q. How much higher is one gain than another? What is the distance between them? A. Fourteen to sixteen inches.
“Q. Plow much higher were the light wires than the Kinloch wires of this line between these two poles? A. Fourteen or sixteen inches apart at the bottom,,
“Q. In answer to Mr. Drabelle you said the Kin-loch wire was about ten inches north of the new pole you were on. Where was the trouble you were talking about? A. Right at the pole I was on.
“Q. In running that line leading up to the pole where you found the trouble, did you notice whether any of these particular wires were insulated or not? Could you tell? A. Yes, sir.
“Q. Did they look like they were insulated? A. Yes, sir.
“Q. Did you touch any wire while you were on that new pole except the Kinloch wire you were talking about? A. No, sir.
“Q. Mr. Drabelle was asking you about looking at this wire on that new pole,‘and you said something about being twenty-five feet away. Teli the jury what you mean by that? A. When I was tracing out the circuits before I got to the seat of trouble, I was looking up all the time, and when I got there I was looking up, when I saw my wires in trouble and I saw the whole general — all the wires in general, above my head from the ground, and I immediately climbed the pole [61]*61and got in position to clear my trouble and took hold of this step and received, my shock.
“Q. In looking at that to see what was up there, did you .notice whether any of the wires were touching these spikes? A. No, sir, they didn’t appear to be. They looked all right.”
The first person who appeared at the scene of the accident after its occurrence was Wilkerson Sneed, who testified in behalf of plaintiff, that he went upon the pole in question and took respondent down to the ground after his injuries. There was a large cable in the line which was strung a short distance below all the other wires and ran along on the south side of the new pole. When respondent was injured the upper phrt of his body fell over and upon this cable. His feet and spurs clung to the pole, and left him suspended in the air. Mr. Sneed said he did not see, a't the time, the contact of the appellant’s light wire with the step on the pole, but that shortly afterwards ho noticed the contact of the wire with the step. He testified as follows :
“Q. State whether or not you noticed anything about any wire being hooked up on that pole or not? A. Not right at that time, no, sir.
“Q. Did you that afternoon at any time? A. Yes.”
There were three or four other witnesses introduced who appeared upon the scene shortly after the accident; two of whom testified that they never noticed that the defendant’s wire was hooked on to the ’ foot or handhold of the pole, and the others testified that they did observe that fact. One or two of them also testified that they noticed a black or charred spot on the pole where the defendant’s wire came in contact with it, at or near the handhold.
Some of these witnesses also testified that they noticed that there was a sag in the defendant’s wires near said pole.
[62]*62The plaintiff charged in the petition, and his testimony tended to prove, that it was the universal custom among the employees of all of the companies using the poles to go upon, ascend and descend any and all of them for the purpose of adjusting any trouble that might be reached therefrom, whether such pole was a new one or an old one, or whether it had cross-arms on it or not.
S. W. Way, the electrician and general superintendent of the defendant, and John Gr. Regan, the in-' spector of the city lighting department of the city of St. Louis, and T. J. Keller, an employee of the Kin-loch company, testified regarding said custom substantially the same as did the plaintiff.
At the time the plaintiff was injured he was wearing a pair of leather gloves, for the purpose of protecting his hands from the ordinary injuries when coming in contact with wires or other physical substances in the performance of his duties, and not from electrical currents. There was no rule of the Kinloch Company or any .custom among the employees thereof requiring them to wear rubber gloves while performing the duties in which the plaintiff was engaged. While defendant introduced some evidence to the contrary, yet practically all -of it was confirmatory of that of the plaintiff.
The plaintiff sustained severe and permanent injuries and suffered intense physical pain and mental anguish; practically both hands were burned off, necessitating the amputation of nearly all of his fingers and thumbs, and all that remains thereof are but- withered, gnarled and useless stumps; he received many other severe burns about his. person; and was permanently disabled from performing the duties of his calling, and has been almost incapacitated from doing any kind of manual labor, not capable of earning more than one-third of what he was earning prior to his injury, which was about three dollars a day. At the [63]*63time of the injury the plaintiff was thirty years of age, and according to mortuary tables introduced in evidence his expectancy of life was some thirty-five years.
At the close of the plaintiff’s evidence the defendant asked an instruction in the nature of a demurrer thereto, which was by the court overruled, and the latter duly excepted.
Thereupon the defendant introduced its evidence; but after a careful consideration of the same we find that there is but little conflict between it and that introduced for the plaintiff, aside from that regarding the custom of the employees of the various companies using the old and new poles in making repairs and correcting troubles along the line of poles and wires, such as are mentioned in the evidence and regarding the rule and custom among the employees of the-Kinloch Company to use rubber gloves while performing such services as those in which the plaintiff was engaged at the time he was injured.
So slight was the conflict, counsel for defendant have not deemed it necessary to call attention to it in their statement of the case, but have relied almost solely upon the testimony of the witnesses for the plaintiff, as the basis of their statement.
Whatever additional evidence it may be necessary to consider in the discussion of the legal propositions involved will be noticed in connection therewith.
At the close of the introduction of all of the evidence, the'defendant asked the court to give a peremptory instruction requiring the jury to find for it, which request was by the court refused, and defendant duly excepted.
Thereupon the plaintiff requested, and the court over the objections and exceptions of defendant, gave him the following instructions:
“ 1. If you find from the evidence that the city of St. Louis was, on the 12th day of June, 1907, and for several years prior thereto had been, the owner of [64]*64the line of -poles mentioned in the evidence, and that during said years the said city of St. Louis, the defendant company and the Kinloch Company, and other wire-using’ companies, had strung and were maintaining wires in said lines of poles by and with the consent of the said city of St. Louis, and had, during said period, the use of said line of poles, and that during said time it had been and still was on the 12th day of June, 1907, the habit and custom of the employees of all said companies so having wires on said line and so using same, to go upon any and all the poles in the said line at any and all times, whenever necessary for the purpose of untangling and keeping their said' wires in repair and in proper and safe condition; and,
“If you further find from the evidence that the defendant at all said times knew of such use being made of said wire and poles by the said companies and their said employees; and,
“If you further find from the evidence that said city of St. Louis issued the several permits read in evidence, and that the defendant company, acting under permits issued to it by the said city of St. Louis, set up in said line, and as a part thereof, some new poles to take the place of some of the °old poles in said line, and that one of the said new poles so erected by the said defendant company, was set at a point in said line on the north side of Loughborough avenue, at a point about two hundred feet west of Colorado avenue in said city of St. Louis, and that said new pole was equipped with two rows of iron steps or spikes for use as handholds and steps by its own employees, and the employees of the other companies having’ wires on said line, in climbing said poles, and that in erecting* said pole, defendant put the top of the same among and between the wires in said line; and,
“If you further find from the evidence, that the wires of the defendant company in said line carried and were charged with a powerful current of electricity of [65]*65high voltage, and by reason of being so charged said wires were at all said times and continued to be on the said 12th day of June, 1907, dangerous to life and limb, and were so known to be by the defendant at all said times; and,
“If you further find from the evidence that the defendant carelessly and negligently failed to put cross-arms on said new pole to support its said wires, or to otherwise fasten or secure said wires, and that defendant carelessly and negligently suffered and permitted its said wires or one of them to become slack and loose and to sag, and to come, and to be, and to remain in contact with one of the said iron steps or handholds in said pole; and
“If you further find from the evidence that the said wire so in contact with the said iron step was at all said times charged with and carried a powerful electric current of high voltage; and
“If you further find from the evidence that the insulation on said wire was inadequate and insufficient to prevent the said electric current of high voltage from escaping from defendant’s said wire to the said iron step or handhold, and that said current was by reason of such inadequate and insufficient insulation escaping and being communicated from said wire to said iron step, and causing said iron step to be charged with electricity from defendant’s wire; and,
“If you further find from the evidence that by reason of the aforesaid conditions of the said pole, iron step and wire, the same were on the said 12th day of June, 1907, not reasonably safe but were dangerous for the employees of said wire-using companies, who might have occasion to gp upon the said new pole in the discharge of their duties as such employees, and that the said defendant company at said time knew, or by the exercise of reasonable care would have known of such unsafe and dangerous conditions; and
[66]*66“If you further find from the evidence that on the said 12th day of June, 1907, the plaintiff was in the employ of the said Kinloch Telephone Company, and was required by said company on said date to go along the said line of poles to repair, straighten out, and untangle the wires of the said Kinloch Telephone Company in said line, and that the plaintiff in the discharge of his duties as such employee did go along such line of poles, and upon the said new pole for the purpose of untangling the wires of the said Kinloch Telephone Company in'said line; and,
“If you further find from the evidence that the plaintiff, while upon said new pole, attempted to straighten out and disentangle the wires of the said Kinloch Company in said line and was in the act of disentangling the said wires, and that while so doing plaintiff took hold of the said iron step, with which defendant’s wire was in contact, for the purpose of balancing himself on said pole, and was then and thereby burned and shocked by the electric current from defendant’s said wire communicated to the said iron step in said pole; and,
“If your further find from the evidence that the plaintiff was at all said times in the exercise of ordinary care for his own safety, then you will return a verdict for the plaintiff.
“2. It was the duty of the defendant company to protect its wires carrying a powerful and dangerous current of electricity by insulation or otherwise and to use a very high degree of care to keep such insulation or protection of such wires in such condition and repair so as to make them reasonably safe to those, who in the performance of their duties, might be brought in contact with them. A failure to exercise such care would constitute negligence.
“By the term ‘very high degree of care’ as used in this instruction is meant that degree of care which would ordinarily be exercised under the same or simi[67]*67lar circumstances by cautious and prudent persons engaged in the same line of business.
“3, ‘Ordinary’ care, as used in these instructions with reference to the plaintiff, is meant that degree of care which careful and prudent persons engaged in the same business and calling as that of the plaintiff would ordinarily exercise under the same or similar circumstances.
“4. If under the evidence and instructions of the court, you find in favor of the plaintiff, you should assess his damages at such an amount as you believe, from the evidence, will be a fair compensation to him for the pain of body and mind, if any, which he has suffered as a direct result of the injuries in question, and for such permanent injury, if any, to plaintiff’s hands as you may find was directly caused by the said injuries, and for such loss of earnings, if any, as you may believe from the evidence he has sustained in consequence of his s.aid injuries and for such loss or impairment of his earning power or capacity, if any, as you may find from the evidence he will, in all reasonable probability, sustain in the future in consequence of his said injuries, but the total damage which you may allow plaintiff must not in any case exceed the sum of thirty-five thousand dollars.”
The defendant then asked certain instructions, which the court refused, but modified them and gave them in the following form:
“1. Even though you may find and believe from the evidence that the defendant from the date of the erection by defendant of the new pole mentioned in the evidence, and being the first pole west of Colorado street on the north side of Loughborough avenue, city of St. Louis, to the time of the injury to plaintiff, caused, suffered and permitted one of its highly' charged wires to come and be and remain in contact jvith one of the iron steps or handholds on the south side of said pole, yet unless you find and believe from [68]*68the evidence that said iron step or handhold was caused to be charged with electricity because insulation on said wire in contact with it had been by long use, neglect and by force of the wind and the weather, permitted by the defendant to become decayed, worn and disintegrated, your verdict must be for the defendant.
“2. It was the duty of the plaintiff to himself exercise ordinary care for his own safety, and if you believe and find from the evidence adduced before you in this cause, that he was an experienced telephone lineman and that because of his age, experience, and employment he knew or should have known of the danger of placing his hand on the iron step or handhold of the new pole mentioned in the evidence on which was lying, or in contact with which was, one of defendant’s highly charged wires, if you find and believe from the evidence that one of the defendant’s said wires was so lying on or in contact with said step or handhold from the date of the’ erection of said pole to the' time of the injury to plaintiff, and that said step was charged with electricity because the insulation, on said wire had been by long use, neglect and by force of the wind and the weather permitted by defendant to become decayed, worn and disintegrated, and at the same time take hold with his other hand of a wire or wires of the Kinloch Telephone Company, and if you further believe and find from the evidence that the plaintiff saw, or could by the exercise of ordinary care have seen the said wire in contact with said step, then your verdict must be for the defendant.
“3. If you believe from the evidence that the plaintiff and the defendant were both guilty of negligence, which directly contributed to plaintiff’s injury, then your verdict must be for the defendant.
“4. The defendant at the time of the accident to plaintiff had the right to string and maintain in the city of St. Louis and at the place of said accident wires carrying high tension current of electricity, and the [69]*69mere maintenance of such wires carrying such current was not negligence.
“5. If yon believe under the evidence that the electric current on defendant’s wire escaped to the iron step mentioned in the testimony, not because the insulation or covering on said wire bad been permitted by defendant to become decayed, worn and disintegrated, but because the same was wet or damp, then your verdict must be for the defendant.” '
To which action of the court in so modifying the instructions requested to be given by the defendant and in giving said instructions as so modified, the defendant, by counsel, then and there duly excepted.
The court, of its own motion, also gave to the jury the following instructions on behalf of the defendant.
“6. The burden of proof is on the plaintiff to establish by a preponderance of the evidence the facts necessary to a verdict in his favor under these instructions, except upon the issue concerning the exercise of ordinary care by the plaintiff. As to that issue the burden of proof is on defendant to show the want of such ordinary care on the plaintiff’s part.
“7. By the terms ‘burden of proof’ and ‘preponderance of the evidence,’ the court intends no reference to the number of witnesses testifying concerning any fact, or upon any issue in- the case, but simply uses those terms by way of briefly expressing the rule of law, which is, that unless the evidence (as to such issue) appears in your judgment to preponderate, in respect to its credibility, in favor of the party to this action on whom the burden of proof (as to such issue) rests, then you should find against such party on said issue.
“8. Nine of your number have the power to find and return a verdict, and if less than the whole of your number, but as many as nine, agree upon a verdict, the same should be returned as the verdict of the jury, in which event, all the jurors who concurred in such yer- [70]*70. diet shall sign the same; if, however, all of the jurors concur in a verdict, your foreman alone may sign it. ’ ’
To which action of the court in giving the aforesaid instructions of its own motion, the defendant, by counsel, then and there duly excepted.
Such of defendant’s refused instructions as may be necessary to consider, in order to reach a proper conclusion in the case, will be noted later.
I. It is first insisted by counsel for the appellant that the trial court erred in not sustaining the demurrer to the respondent’s evidence, asked by it; also that it erred in not giving, at the close of the.introduction of all the evidence in the case, the appellant’s peremptory instruction telling the jury to find for it.
The grounds of that insistence are thus stated by counsel for appellant:
“(a) The new pole on which plaintiff met with his accident was erected pursuant to an application to the Board of Public Improvements under date of February 15, 1907. The petition alleges that the permit granted on this application contained the ‘express condition’ that the Kinloch Company, and its employees, should enjoy the same rights as to said pole that they theretofore had in the line of old poles, and that defendant accepted this express condition. It is on this averment that plaintiff justified his presence on the pole when he was hurt.
“There is absolutely no evidence to support the averment. The only condition annexed to the permit was ‘ same space to he reserved for wire-using companies, other than the city, that are now occupying space on said poles. ’ At the time of the accident the line had not yet been transferred to the new poles, and the particular pole in question was barren of cross-arms or wires of’any description.
“(b) Plaintiff in his petition relies on specific allegations of negligence. He charges that the insula[71]*71tion on defendant’s wire had become decayed, worn and disintegrated, and that in this condition the ‘defendant carelessly and negligently caused and suffered and permitted the said highly charged and dangerous wire and the said insulation thereon to be and remain in the condition, situation and under the circumstances aforesaid, from the date of the erection of said pole until the said 12th day of June, 1907,’ etc. There is not One word of proof to sustain this allegation. Not a witness testified to such condition, or that the condition charged existed for the length of a minute before plaintiff mounted the pole.
“(c) The evidence showed affirmatively that plaintiff’s injuries were the direct result of his own carelessness. He was an experienced lineman, engaged, because of his skill in this dangerous work, in clearing ‘trouble’ among wires; he knew that every wire, whether used for light or power, telephone or 'telegraph purposes, was to be looked upon as dangerous ; because, though ordinarily carrying a low voltage, it might at some distant point be crossed with a wire of high voltage; he knew also the danger of coming in contact with a metal step, itself in danger of contact with a wire, and especially dangerous on a damp, wet day; yet with his experience and his knowledge of danger he reached around the pole, without looking and without the protection of rubber gloves, when by looking he could have seen the danger and altogether avoided it, or by the use of rubber gloves could have neutralized it.”
We will consider those grounds in the order stated.
[72]*72These permits, like all other permits, must be read and construed in the light of the facts and circumstances that existed and surrounded the parties at the time of their issuance.
At that time the city of St. Louis .owned a line of poles extending along Loughborough avenue, upon which, and prior thereto, it had strung wires for the use of its fire department and telephone system; and upon application made by the various companies mentioned for permits to erect poles thereon for their respective lines, it became obvious that, if granted, the street would be so completely filled and obstructed by poles and wires that it would, for the. purposes for which it was acquired, be practically destroyed, and at the same time would greatly interfere with the ingress and egress to private property abutting thereon, to say nothing of the obstruction of light and air, and the interference with protection against fire, etc. In order to avoid this undesirable condition of things thé city conceived the idea that the situation might be in a large degree relieved by permitting all three of said companies to place cross-arms upon its poles and string their respective wires thereon, and while thereby increasing the number of wires upon its poles, yet at the same time preventing the obstruction of the street with three additional lines of poles. After proper negotiations and understandings reached, that method was adopted, and the wires of the three companies were from time to time added to the poles of the city, which at all times had footsteps or handholds driven therein, for the purpose of assisting the employees of the city in ascending and descending the poles in looking- after, caring for and repairing the wires, cross-arms or other parts of the plant above ground.
When the respective companies added their lines of wire, either by tacit consent or. express agreement, their respective employees, as- did those of the city, began to use said poles for said purposes; and whether [73]*73there was an express' agreement to that effect or not is wholly immaterial, for the simple reason that the granting of the right by the city to the companies to nse the poles for the purposes mentioned, would carry with it all reasonable uses thereof which were necessary to properly conduct their business, which of course would and did include the right to use the poles in making repairs and removing obstructions to their wires, etc., and other property attached thereto. And when the city granted to the appellant the permits previously mentioned to remove old poles and substitute in their stead new ones the same rights and privileges of the Kinloch and the other companies had to the old ones attached to the new poles. This being unquestionably true, then it must necessarily follow therefrom that the respondent, an employee of the Kinloch Company, in the performance of his duties to it, when he discovered the trouble he was sent out to locate and remedy, which was within eight or ten inches of the pole mentioned, had the legal right, independent of custom, to ascend the pole and- remove the obstruction. This is based upon the familiar principle of law which provides that when an express power or authority to do a particular thing is granted by the State to a municipality or by the latter to an individual or corporation, then such additional power as is necessary to enable the city, the individual or corporation to carry into effect the express grant, is also conferred by necessary implication. [City of St. Louis v. Bell Telephone Co., 96 Mo. 623.]
We are, therefore, clearly of the opinion that this, ground of the insistence is not solid, and should be brushed aside.
Without stopping here to decide that proposition, but conceding for the sake of the argument that it is true, yet that would not avail appellant anything in this case, for the simple reason that all the evidence in the case, both that of appellant and respondent, shows that the insulation was wholly worthless as a protection to the employees of the various companies; and that of the former went so far as to show, without pleading it as a defense, that no insulation manufactured was sufficient for that purpose. The appellant’s superintendent repeatedly so testified without qualification or equivocation. So under this view of the evidence what cares the law whether the insufficiency arose from decay, wear or disintegration of the insulation or from any other cause for that matter? The question involved in this case is, was- the insulation reasonably safe for the purposes for which it- was being used, and if not, did the appellant know that fact? As previously stated, all the evidence for both parties showed its insufficiency and that the appellant knew that fact, because it contended that it was not only impossible to so manufacture it as to make it reasonably safe, but for that reason it insisted that the respondent was guilty of contributory negligence for not wearing rubber gloves upon the occasion when he was injured.
Had the contention of the appellant, namely, that it was possible to insulate wires of the character of those in question so as to make them reasonably safe for those whose duties required them to work about and among them, been pleaded as a dfefense and thereby an opportunity been given the respondent to have met the issue, and the appellant’s evidence had been the same as disclosed by this record, then quite a different [75]*75question would have been presented here for determination; but under the present status of the record that question is purely speculative and foreign to the merits of this case.
Entertaining these views of this ground of appellant’s insistence, we are clearly of the opinion that it is wholly without merit, and should be disallowed.
The substance of this contention is, that the record discloses that the respondent was an experienced lineman, and was engaged by the Kinloch Company as. a “trouble” man because of his knowledge of such matters and his skill in the discovery and repair of all breakdowns and other obstructions which might interfere with its service due to- the public; and that as a necessary incident thereto he must have known and did know that all the wires strung upon the line of poles mentioned in the evidence, whether light or telephone wires, were liable to be charged with deadly currents of electricity, by reason of the fact that, for various reasons not necessary to be here mentioned, the'phone wires, the ones the respondent was repairing, were liable at any time to come in contact with the light or other wires carrying a deadly voltage, which would render them as dangerous to life and limb as the light wires themselves would be; that knowing those facts the law imposed upon the respondent the duty to exercise the highest degree of care known and exercised [76]*76by a very prudent person engaged in the same or similar service; and that in the case at bar, counsel for appellant contend, the evidence shows that respondent exercised no such degree of care, and for that reason he was guilty of contributory negligence and was not therefore entitled to a recovery.
Technically speaking and legally also in my opinion, yet controverted by others, the plea of contributory negligence by necessary implication admits negligence on the part of him who makes the plea; but in this case, as in many others, counsel for appellant insist that respondent was guilty of contributory negligence, and at the same time maintain appellant was guilty of no negligence in the case whatever.
Without stopping to discuss the abstruse rule mentioned, I will in passing state (for myself only), that if the defendant in a cause was not guilty of negligence, but the injury was caused by the sole negligence of the plaintiff, then the plea of contributory negligence is improper, and the plea should have been a general denial, or a plea that the injury was the result of the plaintiff’s own negligence and not that of the defendant.
In fact, the answer, of appellant filed in this cause is of the character last suggested, but in the course of the trial counsel seem to have confused the difference between the two pleas and proceeded largely upon the theory of contributory negligence on the part of respondent; but desiring to decide the case upon the.merits rather than on technical pleadings, we will no further press that question. Since, however, the questions of negligence and contributory negligence, as presented by this record are so clearly connected and interwoven with one another, we will consider them together at this place, for what is said of the one may admit or exclude the other and vice versa according to the position taken by counsel for the respective parties.
[77]*77In the first place, was the appellant guilty of any negligence which caused the respondent’s injury? In my opinion, clearly it was; and my reasons for so stating will follow.
It is conceded that the appellant was engaged in a hazardous business, which required of it the exercise of the 'highest degree of care, if it was not an insurer against injury to others. [Yon Trebra v. Gaslight Co., 209 Mo. 648, and numerous eases reviewed therein.]
It is also practically conceded that at the .point of the injury the appellant, for its own benefit, removed the old pole upon which all of the wires of all the companies mentioned were strung and had inserted in lieu thereof a new pole; but at the time of the injury it had not put in place the cross-arms or attached thereto the wire of the various companies, as it was bound to do under the permits previously issued to it by the city. .
While there is no direct and positive evidence upon the question, yet it is clearly inferable from the facts and circumstances in the case that the sagging of appellant’s wires and the resting of the one which caused the injury to respondent upon one of the iron steps or handholds on the new pole, was caused by the appellant’s removal of the old pole and the insertion of the new one, and its neglect or failure to place the ‘ cross-arms in place and to attach the wires thereto as they had been on the old pole. The very purpose of the poles and cross-arms are to support the wires and hold them as near taut as practicable, in order to prevent them from sagging and waving to and fro, and thereby interfering with or injuring those on the streets or those who might lawfully be upon the poles or in the vicinity of the wires.
There is no other reason assigned for the loose and sagging condition of appellant’s wire, and as known from common observation the removal of a pole upon which wires are strung will cause them to sag [78]*78and wave to and fro in a strong wind; and in our opinion the jury were perfectly justified in finding as it evidently did, that that was the cause of the sagging of appellant’s wires and the strong wind of the night before the injury was the cause of the wire resting upon the iron footstep or handhold, which, when respondent took hold of it conducted the current of electricity to his body with the frightful results disclosed by this record.
To hold that this _ evidence did not tend to prove negligence on the part of appellant would do violence to every principle of law bearing upon that subject. [Clark v. St. Louis & Suburban Ry. Co., 234 Mo. 396; Von Trebra v. Gaslight Co., 209 Mo. 648, and cases cited; Clark v. Union Iron & Foundry Co., 234 Mo. 436.]
We therefore rule that appellant was guilty of the grossest kind of negligence and that respondent was entitled to a recovery, providing he was not guilty of neglig’ence which contributed directly tp his injury.
We will now consider the question of respondent’s contributory negligence.
Counsel for appellant strenously insist that the respondent was guilty of the grossest kind of contributory negligence, and that under no principle of law applicable to the facts of this case was he entitled to a recovery, and for that reason, if for no other, it contends the trial court should have peremptorily instructed the jury to find- for it; while upon the other hand counsel for respondent with equal zeal and earnestness contend: First, that there is no evidence contained in -this record which tends to prove contributory negligence on his part; and, second, that even though they be mistaken in that contention, still they insist that the defense'of negligence and of contributory negligence on the part of the respondent must have been charged and proved by appellant to the reasonable satisfaction of the jury in order to bar his [79]*79right of recovery, on account of appellant’s negligence, as previously stated.
These respective contentions sharply present the question of contributory negligence on the part of the respondent, and having anticipated the importance of the same, I deemed it necessary to deal somewhat extensively with the evidence bearing thereon when making the statement of the case.
We have already considered the evidence of neg-. ligence on the part of the. appellant, and the legal effect of the same, which eliminates the necessity for further comment thereon; so consequently we will briefly consider the evidence bearing upon the question of contributory negligence, which is fully set out in the statement of the cáse, and the legal effect thereof.
The- substance of the evidence relied upon by counsel for appellant showing contributory negligence is as follows: That the respondent was what is known in the electrical business as a “trouble” man; that is, one who is an intellectual and practical master of the operation of the field portion of such a business, as well as the necessary connections and relations thereof with the plant and machinery that generates the electricity and distributes it throughout the- various' ramifications of those parts of the city and country served by the company; and consequently, as an incident thereto, he should have known and did know the attending dangers incident thereto, and' should have exercised on his part the same high degree of care for his personal safety in making all repairs to the field work that the appellant was required to exercise for the safety of others in all branches of its business; that it was at all times dangerous to both life and limb for any one to take hold of or come in contact with any electrical wire, whatever the voltage thereof may be, while any portion of his person is in contact with any other wire or electrical conductor, and vice versa, without first insulating himself by wearing rub[80]*80ber gloves, boots or some similar well known nonconductor of electricity, for the well-known reason, so forcefully assigned in briefs by counsel for appellant, namely, that any and all wires, whatever their voltage may be, high or low, may for many reasons too numerous to be here mentioned, at any time, become broken or detached from their moorings and.through falling or otherwise coming in contact with other .wires or objects near to or far removed from any given points and may thereby conduct a high-voltage wire to a telegraph or telephone wire, which respectively carry a very small and noninjurious voltage, and thereby convert the noninjurious wire into one of the same dangerous character as the one which carries a high voltage; and that knowing all of those facts and the dang-er attending the same, especially so soon after the storm of the night before, the respondent should have insulated himself and having failed to so do, he was guilty of such contributory negligence that he is not, as a matter of law, entitled to a recovery in this case.
Counsel for appellant go so far as to contend that even though the high-voltage wire was insulated with the best insulation known to science and used in the commercial world, still the respondent in this case was not entitled to a recovery for the simple reason that he did not use rubber boots or rubber gloves, etc., in making the repairs on the Kinloch wires mentioned in the evidence; and for that reason alone the court should have declared as a- matter of law that the respondent was not entitled to a recovery.
A complete answer to that contention is, the record nowhere shows that respondent .was injured by reason of a high-and low-voltage wire coming in contact with the iron handhold of the pole upon which the respondent was ascending. However, we will not let the case turn upon this narrow, though solid, point, but will meet the proposition as presented by counsel for appellant.
[81]*81That insistence is more plausible than sound, for the reason that if it be true, as counsel for appellant contend' and as some of its evidence tended to prove, that there was no insulation known to science which would render wires of high voltage free from danger to those who came in contact with or handled them, counsel in the same breath insist with greater zeal that if respondent had only used rubber'gloves or rubber boots in making the repairs mentioned, then all danger. to him would have been completely removed and that he not only would not, but could not, have sustained the injuries complained of.
The plain fallacy of counsel’s position consists in the contention that science has discovered no insulation which can perfectly insulate a wire of high voltage and thereby render the handling of the same non-injurious, yet in the same breath insist that science has by a compartively inexpensive device produced a rubber glove which, when worn, will completely remove all danger to those who handle such wires with such rubber gloves.
It does not arise to the height of respectable nonsense to contend that science can and has so insulated the hand as to make it safe for one to handle a wire of high votlage and then in the next breath insist that science has not and cannot insulate a similar wire with a similar substance with like results.
Moreover, that contention is in direct conflict with common observation and is disproved by common •knowledge. If it was not for the perfect insulation of wires carrying high voltage or for some other equally protective system such as are thrown about trolley wires, how long would any or all of the great cities of this and other countries exist? I dare say that should all insulation be removed- from all such wires but few of such cities would survive the night. But independent of all that, the great weight of the evi[82]*82deuce in this case as previously set forth in the statement of the case, shows that this contention of appellant is not only not true, but also that there was no rule promulgated by the Kinloch Company requiring the respondent or any of its employees to wear rubber gloves while performing the services for which he was engaged.
That is true not only of the Kinloch Company, but is true of all other companies engaged in similar business. Not only that, the great weight of the evidence introduced by both the appellant and respondent almost conclusively shows that none of the employees of the Kinloch or of any of the other companies mentioned ever wore rubber gloves in the performance of the duties the respondent was engaged in when injured.
I am, therefore, clearly of the opinion that there is absolutely no merit in this element of appellant’s contention of contributory negligence.
It is next insisted, along this line, by counsel for appellant, that the respondent is not entitled to a recovery in this case for the reason that he was guilty of contributory negligence in that he should have seen, and would by the exercise of ordinary care have seen, the sagged condition of its wire and its contact with the handhold on the pole, had he exercised ordinary care in looking out for his own safety. That is, since he was looking for “trouble” along the wires of the Kinloch Company, which he was required to adjust, he should also have looked for any and all defects that existed along the lines of the appellant, and of course, by parity of reasoning, those of the city of St. Louis and Western Union Telegraph Company, all of whose wires (at least twenty-five in number) were strung upon this same line of poles; and that having failed to perform this slight duty (which it seems from the record the appellant never did, but depended wholly upon the police and the good citizens of the city of St. Louis to perform that duty for it) he was not entitled [83]*83to a recovery, and that it was the dnty of the trial court to have so instructed the jury; and that having failed to so do it now becomes the duty of this court to do that which the trial court erroneously refused to do.
With all due deference to the opinions and learning of my associates who entertain different views I am firmly and unalterably of the opinion that the evidence in'this case does not show that the respondent was guilty of such contributory negligence as required the court to declare as a matter of law that he was not entitled to a recovery.
The importance of this case does not stop with the poor unfortunate who was so frightfully injured by the gross negligence of the appellant, but it cuts deep and to the very quick of the duty of those who handle this insidious and deadly fiend. And in passing, the fact should not be overlooked that the public has no access to the generating or distributing agencies of this highly useful servant, yet deadly when unharnessed; and for this reason no one is in a position to protect himself or herself against its lurking and deadly stroke, but must depend for their safety upon the intelligence and the high degree of care the law has so wisely imposed upon those who are granted the privilege of handling the same and furnishing it to the public. For this reason all of'the authorties agree that the degree of care required of such companies must never be reduced, lessened or lowered.
Returning to the question of contributory negligence: Can it be declared as a matter of law that because the respondent failed to see that the light wire was in contact with the iron handhold, he was guilty of such contributory negligence that he. was not entitled to a recovery? I think not.
It should be borne in mind that the negligent act complained of on the part of respondent was one of omission and not of commission, which is never treated with the same gravity as the latter. He simply failed [84]*84to see a defective and dangerous condition in appellant’s wires, which was the result of the negligent acts of commission on the part of appellant, the existence of which he was not required to anticipate or look for, except of course, in so far as it was his duty to look out for his own safety. And that brings us to the legal proposition; was that defect so apparent or obvious that the law will declare that a reasonably prudent person looking out for his own safety would have seen that dangerous condition. In this connection it should also be remembered that respondent had the legal right to presume and to act upon the presumption that the appellant had properly guarded its wires when it removed the old pole and inserted the new; also that it had properly insulated its wires, both of which the, uncontradicted evidence shows it had not done.
The law should and always does, in considering the acts of men, give due weight to the facts and circumstances surrounding them and which naturally influence their conduct at the time; and under this rule the failure of respondent to discover the contact between the appellant’s wire and the iron handhold on' the pole, after thus having doubly assured him of his safety, should not be declared negligence as a matter of law. He had the right" to rely upon the presumption that appellant had performed its duty in the regard mentioned, especially after having examined the cable-box he had ascertained therein that the Kinloch wires, the ones he was'inspecting, were free from contact with all light and power wires. This again diverted respondent’s attention from the light wires and lulled him into a sense of security from all danger from that source.
It is true two witnesses after the accident had occurred, while standing on. the ground near the pole, saw the light wire was in contact with the iron handhold; but can it be said as a matter of law that because [85]*85they saw it, all other prudent persons-walking hy or climbing the pole would also have noticed the position of the wire? ■ It should be added that one of these had his attention previously called to the fact that the light wire or some power wire was out of condition, and that he was on the lookout for it when he discovered its contact with the iron handhold, while the respondent had no such warning of danger. The conduct of this witness, with such notice, should not constitute the rule by which the conduct of respondent should be judged when he had no notice whatever.
Again, this record does not disclose the position of these two witnesses when they observed the condition of the light wire and the iron handhold which was only a few inches from the pole. It cannot be said as a matter of law' that the respondent occupied the same favorable position for observation that they did. A person standing on the south side of the pole looking for danger from the light wire, as one of these witnesses was, would be more likely to observe what they saw than another would, though equally prudent, standing on the other side of the pole, anticipating no danger, especially when there were so many wires strung thereon, distracting attention from the particular one in question.
This record also discloses that two other witnesses apparently as intelligent, prudent and as disinterested as the two previously mentioned, the first to reach the pole after the respondent received the shock, did not see or notice the contact between the light wire and the handhold which caused respondent’s injury. One of them saw the burnt place on the pole just above the handhold, but did not notice the contact between the two. Can-it also be seriously contended that these two gentlemen were guilty of negligence as a matter of law for their failure to see the contact between the light wire and the iron handhold? I think not; for the simple reason that one person viewing an object from one [86]*86viewpoint will naturally see small parts thereof, which another from a different viewpoint never saw and could not have seen.
As previously stated, the respondent was under no legal or moral obligation to investigate the condition of appellant’s wires; he had the right to assume that the appellant had performed its full duty in protecting him and the public from all danger incident to this valuable servant, when properly bridled, but a most powerful agency of destruction to life and property when not properly harnessed; that its wires and new poles placed in position by it were in a safe and proper position and condition; and that he would be in a state of safety in performing his duties as an employee to the Kinloch Company. Under these conditions I again ask the question, can it be declared as a matter of law that the respondent, could not approach the pole mentioned, as a reasonably prudent person and ascend the same in the usual manner by usual means for the purpose of repairing the trouble he was sent out to find, which was on the north side of the pole without seeing or observing the contact of the light wire with the handhold on the south side of the pole? The answer must be, yes. Out of the five witnesses including the respondent, who examined the situation just after the injury occurred, but one of them without warning noticed the contact between the wire and handhold. That being true why should the law declare that he was the only reasonable, prudent person among the five?
Laws are made for the government of the people as they actually exist and not solely for the paragon of perfection in any line of conduct. That may be an ideal state to work to, but all such laws would afford but little protection to the ordinary man or woman now living and would be of no use to the paragon, for the simple reason his conduct would need no legal control.
[87]*87It goes without saying that the respondent did not know that the light wire was resting upon the handhold. He so testified and he is uncontradicted. Furthermore, common sense proclaims in no uncertain terms that he would not have taken hold of the handhold had he known of the contact between it and the wire. The instinct of self-preservation would not have permitted him to have subjected himself to the horrible danger he encountered had he known of the contact.
I know of no law that required respondent to walk around the pole and examine it and the connections of the various wires therewith before ascending it, especially when he had no intimation of the negligence previously mentioned. The law only charges him with what he saw or by the exercise of ordinary care could have seen, at the time and under the circumstances.
The evidence is uncontradicted that the wire which injured respondent was insulated and that he had observed that fact before climbing the pole, and having had no ground to suspect that the. insulation was insufficient for the purpose for which it was being used (namely, to protect the employees of the city and those of the various companies using the poles and making repairs just as respondent was doing when hurt) or that the wire was in contact with the handhold, it seems to me that it would be a rather harsh rule which would declare his conduct in ascending the pole looking for trouble on the Kinloch wires was negligence per se, simply because he did not observe the contact of the light wire with the handhold, which was on the opposite side of the pole from him, and within eight or ten inches of it.
That the evidence made out. a case of contributory negligence for the jury I have no doubt, hut to say that his conduct was negligence as a matter of law, I deny; and no authority has been cited nor can be found so holding.
[88]*88In treating of this very question, 29 Cyo. 630-631 states the-law in this language; “Whenever it is necessary to determine what a man of ordinary care and prudence would be- likely to do in the emergency proven, involving as it generally does more or less of conjecture, it can only be settled by a jury.”
Frantz v. Citizens Electric Company, 231 Pa. St. 589, decided by the Supreme Court of Pennsylvania May 11, 1911, is in point. The court said:
“We are asked to say that the learned court below committed error in not declaring as a matter of law that the deceased husband was guilty of contributory negligence. At the trial the questions of .negligence and of contributory negligence were submitted to the jury in a charge fair to both parties and free from just criticism by either. No complaint is made as to the manner in which the questions were submitted, but it is argued with force and ability that the decedent was so clearly guilty of contributory negligence that the duty rested on the trial judge to so declare as a matter of law.”
The court then proceeds to state the ground upon which that contention was based, saying:
“This position is predicated upon the theory that it was the duty of the lineman to look up as he ascended the pole, and, if he had done so, he would have seen the dangerous wire at the point where the insulation had worn off, and if he had seen the uninsulated wire, or could have seen it by the exercise of reasonable care, it was his duty to avoid such an obvious danger. The difficulty with this position is that there is no imperative rule requiring a person climbing a telephone pole to constantly look up, and the testimony of all the witnesses in the case at bar, familiar with pole climbing, is that the decedent climbed the pole in the usual and proper manner. Under these circumstances it would be most arbitrary for the court to say as a matter of law that the lineman, who met his death in the [89]*89performance of Ms duties, did not climb the pole in a proper manner, when all the witnesses with experience in this Mnd of work testified he did. We agree it is the duty of an employee to use due care, so as to avoid open and obvious dangers. A servant cannot take his chances by recklessly and heedlessly running into danger, and then hold the master anwerable in damages for injuries resulting from his own folly. But that is not tMs case. After a careful examination of this record, we cannot say that the decedent recklessly and heedlessly came in contact with the defective wire which caused his death. We start with the presumption that the decedent did his.duty, but it is argued that this presumption is overcome by the witness who saw him climb the pole. This only means that he did not look up after he started to climb, and the expert poleclimbers testified that it was necessary for him to watch his feet as he ascended because of the condition of the pole. He was an employee of the telephone company, and not of the appellant company. There is nothing in the evidence to show that he had any knowledge of the fact that the electric high-tension wires were attached to the telephone pole.”
To the same effect is the ease decided by the Springfield Court of Appeal's, Trout v. Gaslight Co., 151 Mo. App. 227, 229 and 231. It was argued in that case, as here, that the danger was obvious and that as plaintiff had climbed the pole before, he could have seen the dangerous condition if he had looked, but the court refused to hold as a matter of law that he was guilty of contributory negligence.
The Supreme Court of Minnesota in Musolf v. Duluth Edison Electric Co., 108 Minn. 369, l. c. 374, said: “The jury found that the death of the deceased was not caused by his own negligence. No considerations have appeared in the record which would justify us in holding that as a matter of law deceased knew of the defective insulation of the wires. He had the right [90]*90to rely upon the performance of its duty by defendant. He was not bound to anticipate defendant’s negligence. ’ ’
This Court in Von Trebra v. Gaslight Co., 209 Mo. l. c. 662, used this language: “While it is true there is evidence in this record which might have warranted the jury in finding he was guilty of contributory negligence, yet they did not do so. That was an issue which could be only determined by the jury. It was properly submitted to them, and they found against appellant, which is conclusive upon this court.”
The same principle was involved in Buesching v. St. Louis Gaslight Co., 73 Mo. l. c. 230. The court said: “Taking it for granted then that Buesching fell into the opening, or what is tantamount thereto, that there is testimony from which that fact could be found, the next question is, is there evidence on which a jury should be permitted to find thatt at the time of his fall the deceased was in the exercise of ordinary care? The argument of defendants’ counsel is, that if the deceased saw this entrance, he was negligent in not avoiding it. If he did not see it, he was negligent in not looking, as it was in plain view and well known to him, and had been for years before.”
The court further along in the opinion, l. c. 232, said:
‘ ‘ The argument for the defendants, then, with the element of previous knowledge eliminated, stands thus: As the opening was not concealed, but was obvious to the sight, the deceased was guilty of negligence if he did not see it, and if he did see it, he was guilty of negligence in not avoiding it. These propositions are stated as abstract propositions, which must, if true, obtain in all cases, and not in this case only, for the circumstances under which Buesching failed to see the cellar way, or seeing it, failed to avoid it, are not shown by the testimony. These propositions, then, if they are true, and mean anything as applied to this [91]*91case, mean that Buesching should, no matter what the circumstances surrounding him at the time, have seen the hole into which he fell, ■ and seeing it, should, no matter how great the difficulty of so doing, have avoided it. If such be the law, it is quite plain that there never could be a recovery for an injury occasioned by an obvious defect in a highway. But such is not the law. The law is that the deceased was guilty of negligence if he did not see it, provided he would have seen it by exercising ordinary care.”
Crawford v. Stockyards Co., 215 Mo. 394, was a suit for personal injuries suffered by the plaintiff while on some cattle cars that came in contact with open gates extending out over the platform at the stockyards. It was urged that a recovery could not be had because of plaintiff’s contributory negligence, which consisted in .the charge that he either saw the open gate before it struck him, or could have seen it by the exercise of ordinary care. This court refused to declare that as a matter of law there could be no recovery, but held that the question of contributory negligence was for the jury. The court said (l. c. 413):
“The evidence shows that if the gates had been open when he was coming down the stairway he would have seen them if he had looked, and it also shows that he did not look, but that on the contrary he came down the stairway with his mind on the cattle, leaning over the railing with his face turned south. If the plaintiff saw the gates open he was guilty of negligence in not taking care to avoid coming into collision with them; but the testimony is that he did not see them. Was he negligent because he did not look in that direction as he came down the stairway? As a general rule a man is not required to look for danger when he has no cause to anticipate danger or when danger does not exist except it be caused by the negligence of another. [Citing authorities.] That is the general rule, and whilst [92]*92there may be some exceptions, yet there is nothing in this case to take it ont of the general rnle. There is nothing in the evidence to indicate that plaintiff had any reason to anticipate that these gates might be open.”
This rnle was also applied in Russell v. City of Columbia, 74 Mo. 480. See also Langan v. Railroad, 72 Mo. 392.
The record in this ease presents a much stronger case for the respondent than do any of the cases cited. Here the respondent was where he had the right to be; he examined the cable-box and found- the Kinloch wires, the ones he was inspecting, were free from contact with any high voltage wires; he observed the poles and Vires of all the companies in a general way, but noticed no defect of any kind; he did not know of the contact between the appellant’s wire and the handhold; he had no notice of appellant’s negligence in failing to secure its wires to the cross-arms on the new pole; he had no intimation of danger lurldng about him and had no special occasion for being on the lookout for same; and that appellant’s wires were not properly insulated for the purpose they were being used, was known by it but unknown to the respondent.
These facts are practically undisputed, but whether they are or not is wholly immaterial, because the jury found them to be true upon an abundance of evidence which'for the purpose of the demurrer in this case is the same as though they were undisputed.
So under the authorities previously cited, as well as those to be presently mentioned, I am fully satisfied that the evidence made a prima-facie case for the jury, and that the trial court properly refused the demurrer to the evidence and the peremptory instruction asked by counsel for appellant. [See Geismann v. Missouri-Edison Electric Co., 173 Mo. 654; Ryan v. Transit Co., 190 Mo. 621; Young v. Waters-Pierce Oil Co., 185 Mo, 634; Downs v. Telephone Co., 161 Mo. App. 274; Camp[93]*93bell v. United Railways, 243 Mo. 141; Kile v. Light & Power Co., 149 Mo. App. 354; Braun v. Buffalo General Electric Co., 34 L. R. A. (N. S.) 1089.]
II. The next assignment presented for a reversal of the judgment of the circuit court is stated by counsel for appellant in the following language:
“Defendant was not bound to foresee that an experienced lineman and ‘trouble’ man would use this new barren pole, not for the purpose of stringing or maintaining or repairing wires upon it, not for the use of any space reserved on it for his employer, but purely a matter of convenience for the purpose of reaching away from it to untangle some of his company’s nearby wires.” I have not quoted the last (jlause of this assignment for the reason that it goes to the question of contributory negligence, which was fully considered in paragraph one of this opinion, and no good purpose would or could flow from a re-statement of the proposition or a re-discussion of the same.
This contention of counsel for appellant shows how completely they misapprehend the purposes for which the original poles were erected by the city; the rights regarding them by the respective companies using them, as well as their rights to the new or substituted poles in consequence of those rights, and the relative duties they owed each other and their employees on that account.
As previously ruled each and all of the parties using the poles had equal rights to the use thereof for al of-the purposes mentioned in their respective lice uses, which of course included the right to place in position cross-arms and to string wires thereon; and to use the poles for the purpose of repairing the cross-arms and wires and for all other purposes that were or might become necessary to keep them in proper operation. These same rights and duties attached to the new poles; and when the appellant under [94]*94its license removed an old pole and inserted a new one, the same rights and duties of the respective parties attached to them that related to the old ones.
With these observations in mind it should be remembered that not only was appellant’s wire detached from the old pole, and left dangling in the air in the vicinity of the new pole, but those of the Kinloch and the Western Union were likewise detached and left unsupported ; and while there is no direct evidence bearing upon the question, yet it is clearly inferable from all the facts and circumstances detailed in evidence that the “trouble” with the Kinloch wires, the ones respondent was sent out to locate and remedy, was caused by the same carelessness and negligence that caused the appellant’s wires to swing tó and fro in the strong wind the night before and become entangled with the iron handhold. In other words, I am fully satisfied that the same carelessness of the appellant that caused its wire to sag and rest upon the iron handhold of the new pole, also caused the “trouble” with the Kinloch wires that respondent was sent out to locate and repair, namely, the removal of the old pole and the appellant’s negligence in not connecting its and the wires of the city and the other companies mentioned, to the new pole inserted by it. Is it any wonder that those twenty-five or more wires left swinging and dangling on a stormy night should become entangled with one another and come in contact with the pole erected in their midst without cross-arms, stays or barriers of any kind to hold wires in place? I think not; and to hold that under the evidence preserved in this record the jury was not warranted in so finding, which evidently they did, would be to accuse them of being deficient in that intellectual quality which enables men to draw correct conclusions from known causes. They found and correctly so, that this whole trouble to both the wires of the appellant and those of the Kin-loch, as well as the injury of the respondent, was caused [95]*95by the inexcusable and gross negligence of the appellant. This contention of appellant is untenable, and should be and is overruled.
III. The third error assigned for a reversal is thus stated by counsel for appellant:
“ (a) It bases plaintiff’s right to use the new pole for the purpose of mere convenience, for which he used it, on the right of his company to use space on the old poles for other purposes; that is, for stringing and maintaining its wires.
“(b) It omits all reference to an essential issue in the case. Plaintiff charged specific negligence, to-wit, that defendant’s wire, in a dangerous condition, was allowed to be and remain on the iron step from the date of the erection of the pole to July 12, 1907, the day of the accident. The instruction permits a verdict for the plaintiff if the jury should find merely that the wire was in contact with the step at the moment of the accident.
.“(c) The instruction authorized a verdict for plaintiff if the jury believed that the insulation on defendant’s wire was inadequate-and insufficient for any cause; whereas the specific charge of negligence in the petition is that the wire was dangerous because it had been by long use, neglect and by the force of the wind and weather, permitted to become decayed, worn and disintegrated, so as to expose said deadly current in said wire and permit the, same to escape to the said iron step or handhold in said pole, etc. ’ ’
There is not an element of this objection which has not been fully considered and determined by us in paragraphs one and two of this opinion when passing upon the demurrer to the respondent’s evidence and the peremptory instruction asked by counsel for appellant telling the jury to find for the latter.
If the conclusions there announced were correctly drawn, then the objections here made to this instruc[96]*96tion are without merit. But in passing I wish to reiterate in this connection that while the petition charged that the insulation of the light wires was old and' decayed and on that account was insufficient to confine the current of electricity to the wires, and that by reason thereof the same escaped therefrom and injured the respondent, and that while there was practically no evidence introduced tending to show that the insulation was old or decayed, yet all the evidence introduced by both parties shows conclusively that the insulation was wholly insufficient for the purposes for which it was being used, which was the ultimate fact in issue, regardless of the cause. The appellant not only conceded its insufficiency, but its superintendent testified that there was no insulation known by which such wires could be perfectly insulated. So as previously stated, it is wholly immaterial from what source the insufficiency arose, under the state of the pleading, provided appellant was not misled thereby. The question presented by the pleadings was, was the insulation sufficient to protect the respondent from injury? The respondent charged that it was not and the appellant answered that it was. The cause of the insufficiency was wholly immaterial since the evidence for both parties conclusively shows that fact was true, and that of appellant went one step further and tended to show $iat no such insulation was known or could bé •manufactured.
There is no merit in any of these objections and they are disallowed.
IY. It is next insisted by counsel for appellant that the trial court erred in refusing instruction numbered three asked by it, and in giving it in a modified form. The instruction as asked declared the law to be that the appellant was engaged in a highly dangerous and extra-hazardous business, and that on that account the law imposed upon it the duty to exercise a véry [97]*97high degree of care to make its wires, etc., reasonably safe to those who, in the performance of their duties, might be brought in contact with them.
The theory of counsel .is, that because the law imposed this high degree of care upon the appellant it should also impose a correspondingly high degree of care upon the respondent to look out for his own safety when working about or being in the vicinity of its wires.
There is absolutely no merit in this insistence. It was the appellant that was engaged in the extra-hazardous business, and not the respondent. The latter had nothing more to do with the former’s business than a member of this court has; he was not even an employee of the appellant.
It might just as well be said that because a common carrier of passengers is required to exercise this high degree of care therefore the passenger must also exercise the same high degree of care. There is no reason or sound policy involved in such a contention. The theory of the law is that when a person engages in any hazardous business and especially one- for private gain, he must use that degree of care which is commensurate with the high degree of duty the law imposes upon him to protect the public from the great dangers incident to that business; and not that the public should exercise that care for the benefit of the person so engaged. The public has no knowledge or control of a business of that character and but few individuals have any knowledge of the dangers incident thereto; and no individual has any power or authority to control the business or to regulate or lessen the degree of danger incident to its operation. Under those Acts it would be highly unjust and oppressive to all, should the law impose that high degree of care upon the public and by that indirect method relieve or lessen the duty of [98]*98the appellant and all other persons and companies similarly situated which they owe to the public.
Every person in every walk of life must exercise ordinary care for his own safety and every person and corporation engaged in an extra-hazardous and dangerous business must .exercise a correspondingly high degree of care to protect the public from all dangers incident thereto. This is elementary and is the recognized law the world over.
The trial court modified said instruction numbered three and told the jury that respondent was required to exercise ordinary care for his own safety while performing Ms duties for the Kinlock Company at the time he was injured.
We are, therefore, clearly of the opinion that the instruction as asked was erroneous and that the court properly modified and gave the same in the modified form.
There is no merit in. this insistence.
Y. The correctness of the instruction on the measure of damages is challenged for the reason, thus stated:
“The court erred in giving plaintiff’s instruction number 11 on the measure of damage.
“The petition alleged plaintiff’s earning capacity at one hundred dollars ($100) per month, and averred that he had lost and would continue to lose this amount monthly. The instruction in nowise limited the jury in any award they might choose to make plaintiff on this account for such loss.’’
. There is no merit in this contention. The petition somewhat minutely stated the various elements of damages sustained, but did not undertake to state the amount of each, but after this enumeration the petition stated generally that respondent was damaged in the, sum of $35,000, and prayed judgment therefor..
[99]*99Good pleading requires the injured party to state his earning capacity, etc., but the law does not require the pleader to ask a separate finding on each element of the damage; and there is no more reason for requiring a separate assessment on the loss of earnings than there is for a separate assessment upon each and all of the other elements stated.
This contention is wholly without merit.
VI. It is lastly insisted that the verdict is excessive.
The verdict was for $22,500, but the court required the appellant to enter a remittitur of $4500, reducing the verdict to $18,000', and then rendered judgment thereon.
There is no .question but what this is a large judgment, much above the average; but it should be borne in mind the injuries sustained in this case are also far above, the av erage injuries involved in the ordinary lawsuit.
This is not a ease where the proverbial invisible weak back, stiff joints, loss of manhood, injury to some vital organ, etc., was presented to a jury for determination ; but it is á case where the terrific force of 2300 volts of electricity poured through the body of respondent for several minutes and left its visible and indubitable evidence of the frightful effect upon respondent. Both hands were practically burned off, besides he received other severe injuries and the physical pain and mental anguish suffered by him is- beyond description; and the suffering he will have to .endure in the future is equally apparent.
Respondent was twenty-odd years of age, earning about $100 per month prior to his injury and since then about $35 to $40; and his life expectancy was thirty-five and one-third years. The net loss in his wages up to this date has been about $4000, and should he live his allotted time, thirty-five years, his loss in [100]*100that regard will have amounted to more than $20,000, a sum in excess of the amount of the judgment. Should we add to this his disfigurement, physical pain and mental anguish suffered and to be suffered by him it would be much larger. Since, however, he has expressed a willingness to accept $18,000, it seems to me that the appellant has no substantial reason to complain along that line.
I know of but two cases where the injuries received were more frightful than were those sustained by the respondent in this case. Those cases are Clark v. Railroad, 234 Mo. 396, and Corby v. Telephone Co., 231 Mo. 417. "While the injuries in those cases were greater than those received by respondent, yet the judgments therein were proportionately larger.
For these reasons I believe that the judgment of the circuit should be affirmed.
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169 S.W. 345, 260 Mo. 43, 1914 Mo. LEXIS 109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-union-electric-light-power-co-mo-1914.