Home/Supreme Court of Missouri/Thompson v. St. Joseph Railway, Light, Heat & Power Co.

Thompson v. St. Joseph Railway, Light, Heat & Power Co.

131 S.W.2d 574, 345 Mo. 31, 1939 Mo. LEXIS 486
CourtSupreme Court of Missouri
DecidedSeptember 5, 1939
StatusPublished
Cited by17 cases

This text of 131 S.W.2d 574 (Thompson v. St. Joseph Railway, Light, Heat & Power Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. St. Joseph Railway, Light, Heat & Power Co., 131 S.W.2d 574, 345 Mo. 31, 1939 Mo. LEXIS 486 (Mo. 1939).

Opinion

*34 LEEDY, J.

Action by plaintiff, appellant here, to recover damages for alleged personal injuries. Plaintiff had a verdict in the sum of $20,000, which the trial court set aside, and sustained defendant’s (respondent’s) motion for a new trial, and plaintiff appealed. The appeal was argued and submitted in Division # 1, wherein an opinion was adopted by which the order and judgment granting the new trial ivas reversed and the cause remanded with directions to reinstate the A^erdict, and enter judgment in conformity therewith. Thereafter, on the division’s oavii motion, the cause was transferred to the court en banc, where it has been re-argued, briefed and submitted.

The trial court, in sustaining defendant’s motion for a new trial, assigned the folloiving reasons:

"1. For failing to gNe Instruction B (demurrer to the eAddence), offered by defendant.
“2. For giving Instruction No. 2 offered by plaintiff; that said Instruction No. • 2, in the opinion of the court, did not require the jury to find all the necessary facts to constitute negligence nor all the necessary facts to constitute agency.” /

The issues on the present submission have been sharply narrowed, so that the only contentions are:

1. That the demurrer should have been sustained because (a) no act or omission of the defendant aa>us the proximate cause of injury, and (b) plaintiff was guilty of contributory negligence as a matter of law;

2. That error Avas committed in giving plaintiff’s Instruction No. 2 because (a) the instruction purported to cover the Avhole case’ and directed a verdict but omitted altogether a vital element of plaintiff’s case, and (b) in submitting to the jury a pure question of law. The divisional opinion held that the question of defendant’s negligence, as well as that of plaintiff’s contributory negligence, were both for the jury, and as Ave have come to the same conclusion, said opinion, with certain modifications, may be used a,s the general framework for the present opinion, insofar as those questions are concerned. It will be so utilized without resort to quotation marks to distinguish between old and new matter.

Plaintiff was an electrician and had been employed as such for *35 about 15 years by the city of Wathena, Kansas. About April 6, 1933, be was directed by the city clerk to remove a meter box from a pole (referred to in the evidence as the meter box pole), and while attempting to do so, he came in contact with primary wires carrying 2300 volts and received severe injuries. The city of Wathena obtained its electricity from defendant, but owned and operated the transmission line which passed through the town of Elwood, Kansas. Elwood is on- or near the Missouri Biver, and immediately west of St. Joseph, Mo. Wathena . is a few miles west of Elwood. Prior to January 2, 1933, Elwood received its current from Wathena transmission line under a contract with Wathena, but on that date Elwood entered into a contract with the Doniphan County Power & Light Company, (referred to hereinafter as the Doniphan Company) by which contract that company was to furnish current to Elwood, and in order to then furnish Elwood, the Doniphan Company leased from Wathena a part of the Wathena transmission line. The lease was for a period ending March 31, 1933. The portion leased was from the bridge-end, across the river from St. Joseph, to a certain pole in the west part of Elwood. The Doniphan Company, a Kansas corporation, also got its current from defendant. January 2nd, the Doni-phan Company began moving current over the leased line and selling same to Elwood, which in turn sold and distributed, over its own distribution system, to its customers.

In March, 1933, the Doniphan Company built, or caused to be built its new transmission line to Elwood. For the purposes of this submission respondent expressly states it may be assumed that the Doniphan Company employed it (defendant), to build the line. The construction of this new transmission line was completed on March 31, 1933, and on and alter said date the Doniphan Company began transmitting current to Elwood over said new line, and the leased line connection with the Elwood distribution system was severed, except in one particular, and said leased portion turned back to Wa-thena.

In his petition plaintiff alleged, in substance, that the Doniphan County Light & Power Company was a corporation organized under the laws of Kansas and that it employed the defendant, St. Joseph Bailway, Light, Ileat & Power Company, which it was alleged was a Missouri corporation, to build for the Doniphan County Light & Power Company the new transmission line hereinabove described; that no house, business' or other connection using electricity was connected to the wires leading to or on the meter box pole, but that defendant knew this fact, and that defendant nevertheless had permitted the current to flow to said meter box pole and along the wires which ran from the top crossarm to the bottom crossarm of said pole; that on April 7, 1933, and long prior thereto, there was in force and effect, use and operation among electricians, linemen and *36 other men engaged in electrical work and the transmission of electric energy and in the handling of electricity of high voltage, a rule, custom, usage and common and invariable course of action for the electrician or employee to sever and disconnect certain wires at certain points; that said custom required that the defendant, at the time the service was discontinued from the main Wathena transmission lines to the Elwood lines at the pole upon which said meter box was located, should have disconnected said wires at the crossarm located near the top of said pole and running in a generally easterly and westerly direction; that the defendant knew of such rule, custom and usage, but nevertheless carelessly failed to disconnect said wires at said top crossarm and carelessly permitted said electric energy to run from said top crossarm along the wires down said pole to the lower crossarm; that defendant knew, or by the exercise of ordinary care could have known that upon the termination of the lease Wa-thena would likely remove the meter box which was owned by Wa-thena, from the meter box pole; that in order to remove the meter box the employee or employees of Wathena going up the pole to remove the box would be required, in the discharge of their duties, “to come in close proximity to and in contact with the heavily charged wires” negligently left on the pole when the severance was made; that on April 7, 1933, and after the severance was made, plaintiff in the discharge of his duties as an employee of Wathena, climbed the meter box pole to remove the meter box; that in the performance of his work and in order to remove the box, it was necessary for him to disconnect the two wires from the bottom erossarm; that he disconnected these wires “and took hold of and was in the act of bending them back in order to complete his work upon said pole,” when as a result of defendant’s aforesaid negligence he received the injuries complained of. The answer, insofar as it raised issues to be discussed here, contained a general denial and a plea of contributory negligence.

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Bluebook (online)
131 S.W.2d 574, 345 Mo. 31, 1939 Mo. LEXIS 486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-st-joseph-railway-light-heat-power-co-mo-1939.