180 Mo. App. 548 | Mo. Ct. App. | 1914
This is an action to recover damages for personal injuries received by reason of the alleged negligence of the defendant company in failing to insulate certain electric wires which it is alleged to have maintained and controlled.
The defendant is a public service corporation operating a street railway in the city of Carterville and furnishing electricity, for compensation, to persons desiring to use the same along and near its line of railway. In the year 1905, it set' poles and strung wires
The plaintiff’s injury was sustained while he was moving a house along the public street. Intending to pass under these wires and noticing that the house would strike them, he climbed to the roof and grasped the electric wires together with several of the telephone wires for the purpose of raising them and allowing the house to pass under. The evidence tends to show that; he thought all the uninsulated wires he saw there were telephone wires. The undisputed evidence is that all the wires which were strung there together were of about the same size and appearance.
The defenses to the action were as follows: (1) That an ordinance was in force in the city of Carters-ville requiring house movers to obtain a permit from the proper authorities before they could lawfully move houses along the streets, and that the plaintiff had failed to obtain such permit and was therefore guilty of an unlawful use of the street. (2.) That even if plaintiff had obtained a written permit as provided by the ordinance he would not have had a right to interfere with telephone or electric wires strung across a street and in doing what he did would have been guilty of a trespass. (3) That section 4579, Revised
All these defenses were embodied in instructions requested by the defendant, some of which were refused, and of this complaint is now made.
The appellant asks us to rule that because the plaintiff was moving the house along the streets of Carterville without first having obtained a permit from the city’s authorities as provided by ordinance he must be denied a recovery.
The law of this State is well settled that the violation of an ordinance will not defeat a recovery unless such violation is the proximate and efficient cause of the injury. [Reed v. Railway Co., 50 Mo. App. 504; Phelan v. Paving Co., 227 Mo. 666, 127 S. W. 318; Adams v. Wiggins Ferry Co., 27 Mo. 95; see, also, Platz v. City of Cohoes, 89 N. Y. 219.]
It cannot be argued that had plaintiff possessed a permit at the time of the contact with the wires his injury would have been any the less certain or painful, and the eases relied upon by appellant holding that the violation of an ordinance will defeat recovery are those where the act of violation was in and of itself at least a contributing cause of the injury. [Weller v. Railroad, 120 Mo. 635, 23 S. W. 1061, 25 S. W. 532; Schoenlau v. Friese, 14 Mo. App. 436; Rowe v. Hammond, 172 Mo. App. 203, 157 S. W. 880; Williams v. City of St. Joseph, 166 Mo. App. 299, 148 S. W. 459.]
Tbe moving of bouses along a public highway is a privilege that may rightfully be granted by the proper authorities so long as such use does not amount to a nuisance or destroy private property or impair tbe obligations of contracts. It is not a common right of tbe individual, such as to use tbe street as a pedestrian or with a vehicle, and cannot therefore be said to be an ordinary use of tbe highway. It is an uncommon and an extraordinary use. [Northwestern Telephone Exch. Co. v. Anderson (N. Dak.), 102 Am. St. Rep. 580, 98 N. W. 706; Fort Madison St. Ry. Co. v. Hughes (Iowa), 14 L. R. A. (N. S.) 448, 114 N. W. 10; City of Eureka v. Wilson (Utah), 48 Pac. 41; Wilson v. Eureka City, 43 L. Ed. (U. S.) 603; Williams v. Citizens’ R. Co. (Ind.), 15 L. R. A. 64; Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536; Taylor v. Railway Co., 91 Maine 193, 64 Am. St. Rep. 216; Kibbie Telephone Co. v. Landpbere (Mich.), 115 N. W. 244, 16 L. R. A. (N. S.) 689.]
However, merely because plaintiff was using tbe street in an extraordinary way would not relieve tbe defendant of tbe duty of exercising toward him tbe degree of care required of users of electricity. Tbe record fails to show that tbe use in question was a nuisance in that it unreasonably obstructed tbe traffic of tbe street; nor did plaintiff’s action in attempting to raise tbe wires over tbe bouse in any way amount to a damage or destruction of defendant’s property or an interference with defendant’s use of the wires. Plaintiff at most was a mere technical trespasser.
As was held in Newark El. L. & P. Co. v. Garden, 78 Fed. 74, 77: “In such a case as this one, its special facts are for consideration, and upon them, and not
The city was the only one to complain of plaintiff’s use of the street under the ordinance. It was not defendant’s business to object so long as plaintiff was. not molesting its property to the extent of damaging it or interfering with its service, and plaintiff in attempting to lift the wires over the house so far as the record discloses was doing neither. [See, Day v. Consolidated L. P. & I. Co., 136 Mo. App. 274, 117 S. W. 81; Davoust v. Alameda (Cal.), 84 Pac. 760, 5 L. R. A. (N. S.), l. c. 540; Commonwealth El. Co. v. Melville (Ill.), 70 N. E. 1052.] So far as the defendant was' concerned, the plaintiff had a right to use the street in the manner shown by the evidence; it was not for defendant to determine how the city’s streets were to be used; and because plaintiff was using the street in the manner indicated did not relieve defendant of the duty of not unnecessarily exposing him to the danger which the exercise of the highest degree of care on its part
Appellant contends that it did not own the wires and therefore cannot be held liable for the injury. While the evidence shows that the school district paid for the wire and its erection, there is convincing evidence that the defendant had always repaired it when necessary and maintained it at its own expense, and was then using it as a conduit in supplying its electricity to the schoolhouse making a charge for such as was used, and there was sufficient evidence to fasten the control and maintenance of the wires on the defendant. This required defendant to use such wires with the same degree of care as it would be charged with had it actually owned the same. It was the dangerous current of electricity in the wires that caused the injury, and that the defendant certainly did own and control. [Nagel v. Railway Co., 75 Mo. 653; Fletcher v. Railroad, 1 Allen (Mass.) 9; Brubaker v. Kansas City El. L. Co., 130 Mo. App. l. c. 450, 110 S. W. 12; Goodwin v. Telephone Co., 157 Mo. App. l. c. 606, 138 S. W. 940; Daltry v. Media El. L., H. & P. Co. (Pa.), 57 Atl. 833; Union L., H. & P. Co. v. Arnston, 157 Fed. 540; Palmer v. Village of St. Albans, 56 Vt. 519.]
Nor will the defense set up under section 4579, Revised Statutes 1909, making it a misdemeanor to “unlawfully and maliciously destroy, injure or otherwise tamper with any . . . line or pole,” etc., relieve the defendant of liability. There is no evidence that the wires were in any way injured by the act of the plaintiff. The title to the section of the statute is, “Penalty for injuring electrical equipment.” A tampering, such as is contemplated by the statute, is one that is unlawfully and maliciously done resulting in an injury to the equipment. Merely attempting to raise the wire a few feet so that the house would pass thereunder would seem on the other hand to be an act done
The general law governing the duties of the users of electricity has been well defined in this State, and may be summarized as follows: There is imposed on those who handle and distribute so highly dangerous a force as electricity the duty of exercising the highest degree of care practicable to protect those from danger who through business or pleasure may rightfully go into places that may bring them in contact with wires and other instrumentalities which convey and carry the energy; and this is the degree of care that an ordinarily prudent person will exercise. [Geismann v. Electric Co., 173 Mo. 654, 73 S. W. 654; Harrison v. Electric L. Co., 195 Mo. 606, 93 S. W. 951; Clark v. Railroad, 234 Mo. 296, 137 S. W. 583; Gannon v. Laclede Gaslight Co., 145 Mo. l. c. 512, 46 S. W. 968, 47 S. W. 907; Davenport v. Electric Co., 242 Mo. 111, 145 S. W. 454; Campbell v. United Rys. Co., 243 Mo. 141, 147 S. W. 788; Campbell v. Springfield T. Co., 178 Mo. App. 520, 163 S. W. 287, and cases cited.]
This proposition is not denied by appellant, but it contends that as the wires were placed on poles at a height of from twenty-two to twenty-five feet above the surface of the street, it could not reasonably anticipate that plaintiff would climb up aiid come in contact with them, and that placed as they were, it owed the
The case of Winegarner v. Edison El. L. & P. Co. (Kan.), 109 Pac. 778, 28 L. R. A. (N. S.) 677, is directly in point, and in the opinion is found this language: ‘ ‘ There is evidence that the company had notice of the moving of this building. Whether it had notice of its passing the particular spot where the accident occurred, or not, is not shown, but there is evidence tending to show that the moving of buildings was of so frequent occurrence that the defendant must have taken notice of such use of the streets.” The opinion also holds that it is a matter of common knowledge that wires carrying only a light voltage, like, for instance, a telephone wire, are not liable to produce any injury by contact. We think that is a well reasoned opinion and that it has the approval of the great weight of authority.
The correct rule of law is stated in the case of Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256, as follows: “But it is generally held
In our case it is shown that houses are frequently moved along the streets of Carterville, from which it necessarily follows that in doing so they may come in contact with any wires that are in the way and which must therefore be raised or removed. Hence it cannot be declared as a matter of law under such circumstances that the act of the plaintiff was so exceptional and unheard of that a reasonably prudent person exercising the highest degree of care in stringing wires in Carterville would not have anticipated that- those engaged in the house moving business would come in contact with them, and the wire in question, strung as. it was, was highly dangerous when a contact was. made with the telephone wires alongside of it. Besides, on a previous occasion the defendant had trouble with this particular wire coming in contact with the telephone wires when a house was being moved thereunder, and it therefore cannot say the occasion was unheard of and unprecedented. [Harrison v. Electric Co., 195 Mo. 606, 93 S. W. 951; Hoepper v.. Southern Hotel Co., 142 Mo. 378, 44 S. W. 257; Day v. Consolidated L. &. P. Co., 136 Mo. App. 274, 278, 117 S. W. 81; Graney v. Railway Co., 140 Mo. l. c. 98, 41 S. W. 246.]
Appellant claims that plaintiff’s instruction No. 1 put the case to the jury on the humanitarian docfrine. This is without merit because the instruction expressly requires that the jury find as a prerequisite to recovery that the plaintiff was himself free from negligence.
The defendant was not entitled to its refused instruction H because it held plaintiff guilty of contribmtory negligence unless he wore rubber gloves. Such precaution on his part might have been the safest method of handling the wires, yet it was for the jury "to decide whether the way in which he did undertake ■to lift the wires was such as a reasonably prudent person would have adopted.
The instructions given are in accord with the holdings of this opinion, and those refused advanced the defenses which we have held to be untenable in this •case.
The judgment is affirmed.