DAVID E. BLAIR, J.
Action for damages for personal injuries caused by a wire of appellant which carried a dangerous current of electricity coming in contact with respondent and seriously injuring him. Trial below resulted in a verdict for respondent in the sum of $25,000. The trial court required a
remittitur
of $10,000. This was entered and judgment was rendered for $15,000. From such judgment an appeal was granted to this court, and the case fell to Division Two, where an opinion was handed down affirming said judgment. Upon dissent of one of the judges of that division and in response to appellant’s motion to transfer, the case came to Court en Banc.
I. After the case was transferred here, respondent filed his motion to dismiss the appeal because of alleged fatal defects in the abstract filed by appellant, in that such abstract fails to show that the pleadings, verdict, judgment, motion for new trial, motion in arrest of judgment or bill of exceptions were filed in any court or in any cause, and that such abstract fails to show that a transcript of such judgment and the order granting an. appeal therefrom were filed in this court. Said motion was taken with the case and is the first point for our consideration.
Said motion was filed October 9, 1923. On October 16, 1923, appellant filed its supplemental abstract of the record formally showing all the matters alleged not to have been properly shown by the original abstract. On October 30,1923, respondent filed his motion to strike out such supplemental abstract of the record. The case was set for hearing and was heard on November 3, 1923.
Without considering the merits of respondent’s objections to the original abstract, we think the alleged defects therein are cured by the timely filing of the supplemental abstract under the spirit, if not the letter, of the second paragraph of our Rule 11, said paragraph having been adopted as an amendment to our original Rule 11 on December 29, 1920. '
If appellant is concluded by the state of the record shown by the abstract on file when the case was argued and submitted in Division Two, as respondent seems to contend, then, by the same reasoning, respondent should be held to have waived such defects because he did not make his objections to such abstract in Division Two within the time prescribed by said rule. However, upon re-hearing in a division or after transfer to Court en Banc, a case stands just as if it had not been previously heard and submitted. [Ricketts v. Hart, 150 Mo. l. c. 67; Fleisher Bros. v. Hinde, 122 Mo. App. l. c. 221.]
The motion to dismiss the appeal is overruled.
II. We have reached the conclusion upon the merits of the case that respondent cannot recover because of contributory negligence on his part. Such conclusion obviates the necessity of considering the different state of facts, which the evidence of appellant tended to show, or of considering other assignments of error alleged to have occurred during the progress of the trial.
We quote from the divisional opinion as follows:
‘;At about six o’clock p. m., August 15, 1919, a midsummer thunderstorm, accompanied by lightning, wind and rain, occurred in Kansas City, which continued for more than an hour. The rain was heavy, the thunder and lightning frequent, and the maximum velocity of the wind, which continued with decreasing fury until after seven o’clock p. m., was about forty-five miles per hour. During the storm the wire which produced the injury parted or was broken or burned in two midway between two supporting poles. One of the ends of the wire fell
upon or near a sidewalk, where it emitted intermittent flashes of light. While it was lying there, the respondent, who was returning from his work at about seven o’clock p. m., during a lull in the storm, saw the live wire and avoiding it went to his apartments near at hand, procured a broom and returned to the scene. After looking over the situation, he reached out with the brush of the broom or that end which in hours of peace is most utilized by the housewife, and carefully pushed what he terms ‘the loop of the wire’ off of the sidewalk. Going up the sidewalk, he warned two children who were approaching to avoid the wire. He then returned, broom in hand, and when within two feet of the wire it began to writhe and sizzle and falling out of the tree, upon the branches of which a portion of it was resting, struck him, inflicting the injuries of which he complains. This, in substance, is the testimony of the respondent’s witnesses. . . .
“There was testimony showing that the appellant had, from five to six-forty-five p. m., received several notices that the wire was broken and that one end, sparkling and flashing, was hanging over and near the sidewalk. No attention seems to have been paid to these warnings.”
The evidence offered by appellant was of such a nature that, if it had been accepted by the jury as true, the verdict should have been for appellant. The injuries sustained by the respondent were of a very serious nature, but it will serve no useful purpose to describe them here.
For the purposes of this opinion we will assume that appellant was guilty of actionable negligence, and that such negligence continued until the instant respondent was injured.
It is perfectly apparent, from his own testimony, that respondent was fully aware that the electric wire in question had broken and fallen upon the sidewalk and that it carried a current of electricity of such high voltage as to render contact with it peril of the most deadly
sort. The fact that he procured a dry broom, and with the brush end pushed the sizzling wire off the sidewalk to a position less threatening to persons using the sidewalk, demonstrates his complete knowledge of the danger which would certainly result from bodily contact with such wire. That he also fully realized the danger of close approach to said wire, is shown by the fact that, after he had pushed it off the sidewalk, he guided two children past the danger at a safe distance from it. Respondent thereafter unnecessarily approached within two feet of the spot where one end of the wire lay on the ground, while part of the wire hung insecurely in the. branches of the tree near and above him, with full knowledge of the danger from contact with said wire by touching it or coming so closely to it that it might be blown or fall or writhe against him. Respondent saw the wire hanging in the branches of the tree and, when he first saw it there, sparks and fire were coming from it where it touched the tree, as well as where it touched the sidewalk or parking. He was a man of mature age and abundant experience. He was thirty-three years old and was a salesman for bakery products, operating over a city route. His commendable action in guiding* the children past the dangerous situation on a course several feet from the sidewalk shows that he fully appreciated that danger from the situation existed other than that of touching the wire in the position where it then was. He said the wire fell upon him from the tree. He was in a position to see how' the wire was hanging in the tree and must be charged with full knowledge of the liklihood of the wire falling from the tree and injuring him.
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DAVID E. BLAIR, J.
Action for damages for personal injuries caused by a wire of appellant which carried a dangerous current of electricity coming in contact with respondent and seriously injuring him. Trial below resulted in a verdict for respondent in the sum of $25,000. The trial court required a
remittitur
of $10,000. This was entered and judgment was rendered for $15,000. From such judgment an appeal was granted to this court, and the case fell to Division Two, where an opinion was handed down affirming said judgment. Upon dissent of one of the judges of that division and in response to appellant’s motion to transfer, the case came to Court en Banc.
I. After the case was transferred here, respondent filed his motion to dismiss the appeal because of alleged fatal defects in the abstract filed by appellant, in that such abstract fails to show that the pleadings, verdict, judgment, motion for new trial, motion in arrest of judgment or bill of exceptions were filed in any court or in any cause, and that such abstract fails to show that a transcript of such judgment and the order granting an. appeal therefrom were filed in this court. Said motion was taken with the case and is the first point for our consideration.
Said motion was filed October 9, 1923. On October 16, 1923, appellant filed its supplemental abstract of the record formally showing all the matters alleged not to have been properly shown by the original abstract. On October 30,1923, respondent filed his motion to strike out such supplemental abstract of the record. The case was set for hearing and was heard on November 3, 1923.
Without considering the merits of respondent’s objections to the original abstract, we think the alleged defects therein are cured by the timely filing of the supplemental abstract under the spirit, if not the letter, of the second paragraph of our Rule 11, said paragraph having been adopted as an amendment to our original Rule 11 on December 29, 1920. '
If appellant is concluded by the state of the record shown by the abstract on file when the case was argued and submitted in Division Two, as respondent seems to contend, then, by the same reasoning, respondent should be held to have waived such defects because he did not make his objections to such abstract in Division Two within the time prescribed by said rule. However, upon re-hearing in a division or after transfer to Court en Banc, a case stands just as if it had not been previously heard and submitted. [Ricketts v. Hart, 150 Mo. l. c. 67; Fleisher Bros. v. Hinde, 122 Mo. App. l. c. 221.]
The motion to dismiss the appeal is overruled.
II. We have reached the conclusion upon the merits of the case that respondent cannot recover because of contributory negligence on his part. Such conclusion obviates the necessity of considering the different state of facts, which the evidence of appellant tended to show, or of considering other assignments of error alleged to have occurred during the progress of the trial.
We quote from the divisional opinion as follows:
‘;At about six o’clock p. m., August 15, 1919, a midsummer thunderstorm, accompanied by lightning, wind and rain, occurred in Kansas City, which continued for more than an hour. The rain was heavy, the thunder and lightning frequent, and the maximum velocity of the wind, which continued with decreasing fury until after seven o’clock p. m., was about forty-five miles per hour. During the storm the wire which produced the injury parted or was broken or burned in two midway between two supporting poles. One of the ends of the wire fell
upon or near a sidewalk, where it emitted intermittent flashes of light. While it was lying there, the respondent, who was returning from his work at about seven o’clock p. m., during a lull in the storm, saw the live wire and avoiding it went to his apartments near at hand, procured a broom and returned to the scene. After looking over the situation, he reached out with the brush of the broom or that end which in hours of peace is most utilized by the housewife, and carefully pushed what he terms ‘the loop of the wire’ off of the sidewalk. Going up the sidewalk, he warned two children who were approaching to avoid the wire. He then returned, broom in hand, and when within two feet of the wire it began to writhe and sizzle and falling out of the tree, upon the branches of which a portion of it was resting, struck him, inflicting the injuries of which he complains. This, in substance, is the testimony of the respondent’s witnesses. . . .
“There was testimony showing that the appellant had, from five to six-forty-five p. m., received several notices that the wire was broken and that one end, sparkling and flashing, was hanging over and near the sidewalk. No attention seems to have been paid to these warnings.”
The evidence offered by appellant was of such a nature that, if it had been accepted by the jury as true, the verdict should have been for appellant. The injuries sustained by the respondent were of a very serious nature, but it will serve no useful purpose to describe them here.
For the purposes of this opinion we will assume that appellant was guilty of actionable negligence, and that such negligence continued until the instant respondent was injured.
It is perfectly apparent, from his own testimony, that respondent was fully aware that the electric wire in question had broken and fallen upon the sidewalk and that it carried a current of electricity of such high voltage as to render contact with it peril of the most deadly
sort. The fact that he procured a dry broom, and with the brush end pushed the sizzling wire off the sidewalk to a position less threatening to persons using the sidewalk, demonstrates his complete knowledge of the danger which would certainly result from bodily contact with such wire. That he also fully realized the danger of close approach to said wire, is shown by the fact that, after he had pushed it off the sidewalk, he guided two children past the danger at a safe distance from it. Respondent thereafter unnecessarily approached within two feet of the spot where one end of the wire lay on the ground, while part of the wire hung insecurely in the. branches of the tree near and above him, with full knowledge of the danger from contact with said wire by touching it or coming so closely to it that it might be blown or fall or writhe against him. Respondent saw the wire hanging in the branches of the tree and, when he first saw it there, sparks and fire were coming from it where it touched the tree, as well as where it touched the sidewalk or parking. He was a man of mature age and abundant experience. He was thirty-three years old and was a salesman for bakery products, operating over a city route. His commendable action in guiding* the children past the dangerous situation on a course several feet from the sidewalk shows that he fully appreciated that danger from the situation existed other than that of touching the wire in the position where it then was. He said the wire fell upon him from the tree. He was in a position to see how' the wire was hanging in the tree and must be charged with full knowledge of the liklihood of the wire falling from the tree and injuring him. He, better than any one else, could see how securely the wire was lodged in the tree and took the chance of its being so securely lodged that it would not fall. No other conclusion of fact is possible, even under the testimony of respondent himself.
A situation, therefore, arises where, despite the negligence of appellant, respondent would not have been
injured had'it not been for his own negligent act in approaching too near the deadly wire with full knowledge of the lethal current of electricity it carried, as well as with full knowledge of all the surrounding conditions and circumstances. Appellant’s negligence was therefore not the proximate cause of his injuries. [DeMoss v. Railways Co., 246 S. W. (Mo.) 566.] As such facts appear from respondent’s own testimony, and as facts more favorable to a recovery by him do not appear in the record, we must hold that respondent was not entitled to recovery as a matter of law and that the trial court should have so instructed the jury.
Our reports contain many cases holding that, where one voluntarily and unnecessarily places . himself in a dangerous situation, fully knowing and realizing the danger of such situation and the hazard to which he is exposing himself in such situation, and is injured thereby, he cannot recover damages for such injuries-, notwithstanding the danger which caused such injuries resulted from the negligent act of another. The rule is so well established that citation of authorities is unnecessary. The undisputed facts in this ease bring respondent squarely within the application of this rule.
The judgment is reversed.
Woodson, G. J.,
and
Graves
and
White, JJ.,
concur;
James T. Blair
and
Rag-land, JJ.,
dissent;
Walker, J.,
dissents in separate opinion filed.