108 Mo. App. 433 | Mo. Ct. App. | 1904
— This action originated before a justice in whose court judgment was recovered against appellant and its codefendant the city of St. Louis;
Tbe basis of plaintiff’s cause of action was alleged in bis complaint to be- that on or about tbe eighteenth day of May, 1900, defendant negligently allowed its trolley wire, charged with electricity, to bang down so that it came into contact with plaintiff’s horse on an open public street of tbe city of St. Louis, killing tbe animal. Tbe facts developed at tbe trial were that about eight o’clock in tbe morning of tbe eighteenth of May, 1900, tbe plaintiff drove into Eighth street from Cass avenue, tending southward on tbe defendant’s track, when be beard some one exclaim, “wire down,” and be pulled to tbe right band side of tbe street where be was compelled to pass a small wagon, and after going further be perceived a large wagon or dray drawing near; be was on tbe right-hand side of tbe street and was watching tbe vehicle to see if it was going to pull out of tbe way, and when be saw -that it was not going to move be was forced to pull to tbe left to avoid being struck by it and just as be did tbe wire struck bis horse, causing tbe damages. That the wire was of tbe thickness of a lead pencil, dirty and dark, and be did not perceive it, until be was upon it, and looking ahead be bad not seen tbe wire although it was a light day. As stated by appellant, tbe occurrence was pending tbe existence of a general street car strike affecting defendant’s whole system, which was then in great state of disorder, trolley wires being down all over tbe city by reason of such strike and at this particular point tbe defendant bad been unable to operate its cars for' several weeks. That conflict in tbe testimony was confined to tbe length of time this wire bad been down. One witness deposed tbe wire bad beeij down a couple of days, and that be bad given notice twice by telephone to tbe Cass avenue stable of de
The court below properly refused the usual imperative instruction at close of the testimony tendered on plaintiff’s behalf, as a prima facie case was perfected by showing that one of defendant’s wires charged with the electrical current sufficient to destroy life was down upon a public thoroughfare and highway of' the city of St. Louis, and the burden was then shifted to the defendant to establish that its wire was down by no fault of its own. Grannon v. Gras Light Co., 145 Mo. 502, 46 S. W. 968, 47 S. W. 907.
The prevalence of the general strike suspending operation of its cars and the lawlessness attending such situations so far from excusing or justifying the perilous condition of the wire rather aggravated it and lent force to the charge of negligence in permitting the electric power to be conducted through the wire at a period when from the suspension of the system and the continued cessation of its cars, such motive power had-not been for a long period and was not then required to propel them. The case above invoked in support of the principle announced, as counsel for appellant justly says, has been the subject of comment and criticism in succeeding utterances of the same tribunal, but its controlling force has not been impaired nor qualified by any subsequent decision or otherwise, than in the dissenting opinions accompanying, upon the proposition here presented and it remains decisive of such proposition at the present time.
Nor can we accede to the contention that plaintiff’s testimony exhibited such want of care on his part as to bar any recovery. ‘Whether under the emergency confronting him, plaintiff exercised ordinary care in .view of the conditions attending his situation was a question properly referred to the jury. The charge to the jury was made up of an elaborate series of instruc
Judgment affirmed.
