161 Mo. App. 274 | Mo. Ct. App. | 1912
Plaintiff’s action is to recover damages on account of the death of her husband, which she charges to be the result of defendant’s negligence. The judgment in the trial court was for her in the sum of five thousand dollars.
Deceased was an employee of the Queen City Telephone Company in Sedaba, and defendant, the Mis
Deceased was what was known as a “trouble man” for the Queen City Company, and he was out to locate a difficulty in the operation of one of its phones. He discovered that the defendant telephone company’s wire had dropped down until it was in contact with his compány’s wire at the corner of the street where the three companies had wires, as we have already stated. He climbed the pole of the electric light company for the purpose of lifting the wire off of that of his company. When he reached a point near the cross-arm he took hold of the defendant telephone-company’s wire to pull it up. He was immediately killed .by electricity. The case was heretofore before this court (145 Mo. App. 173). For reasons there explained the judgment was reversed and the cause remanded for trial, with a suggestion that the petition be amended in certain particulars. These amendments were made. They related chiefly to alleging matter which would show that the deceased, as an employee of the Queen City Company, was more than a mere licensee to whom
The theory of plaintiff as to the cause of her husband’s death is that the contact further up the street between the electric light company’s wire and the defendant telephone company’s wire, communicated the high voltage from the former to the latter and that when deceased took hold of the latter’s wire to lift it off of the wire of his company, he received the heavy charge of the light company’s wire by which he was killed. Defendant pursues a line of suggestion and argument to show that the contact of its wire
It is conceded to have been a wet day. Deceased’s hat and clothing were damp and so was the pole; and there was evidence tending to prove that deceased, in assuming a position on the light company’s pole, brought his head, not touching, but in such close proximity to the light company’s wire that he received the shock in that way. It is not worth while to discuss this phase of the case in detail, since, in our opinion, as we have just stated, there was abundant evidence that he was killed by the shock received immediately through the defendant telephone company’s wire when he took hold of it to raise it off that . of his company, caused by taking the current from the light company’s wire up> at the point of contact. There is not agreement among the witnesses as to how close deceased’s head came to the light company’s wire. Some witnesses stated that he might have received the current from that wire without contact, if his head got within two or three inches of it. But others stated that he was not closer than fourteen inches. It was shown that when he took hold of defendant telephone company’s wire, with his right hand (which, with his glove, was badly burned), he exclaimed “it’s hot”, and there appeared a blaze “out of his head”; and an expert stated that there was no voltage in Sedalia that would start a blaze like that without contact.
In the course of defendant’s argument the statement is made and repeated that the petition was faulty and that its demurrer thereto should have been sustained. But it must be borne in mind that the demurrer was waived by filing an answer and going to trial. If defendant wished to save the point, it should have stood upon the demurrer. We therefore only need to consider whether the petition is good after verdict. The objection to its sufficiency, like that to the evidence, refers to not averring a mutual privilege to handle the wires of the other company, as distinguished from the poles, if necessary in making repairs. It alleges the privilege in very broad terms, “whenever it became necessary (for employees) in the line of their employment to so use them.” We think it sufficient after verdict.
What we have written disposes of most of the objections made to the action of the court on instructions. Four were given for plaintiff and six for the defendant and fourteen refused for the latter. The following for plaintiff on the measure of damages, is attacked for the reason, chiefly, that no direction or explanation is given as to what would constitute mitigating or aggravating circumstances, viz.: “You may allow her such an amount as you may deem fair and just with reference to the necessary injuries resulting to her from the death of her husband, not exceeding five thousand dollars ($5000). And in arriviug at the amount you may take into consideration any mitigating or aggravating circumstances . . . .”
The defendant, although asking instructions on all other phases of the case, passed by the question of damages and asked nothing on that subject. Now the later eases in the Supreme Court, beginning with Browning v. Ry. Co., 124 Mo. 55, 71, are to the effect
Defendant complains that by reason of the refusal of a number of instructions it offered, the court cut out its theory of defense. We have gone over these and find that they were properly refused. Many of them were practically demurrers to the evidence. Several confined deceased’s right to the mere act of climbing the pole, without regard to the right to repair or. remedy what was wrong after he had climbed it. One denied plaintiff a right to recover if deceased could have made the repair by climbing the pole belonging to his own company, thus leaving out of view plaintiff’s theory of mutual permission to climb all the poles, Another, on the subject of the jury being unable, under the evidence, to say where the shock came from that killed deceased, was covered by one given for defendant.
A thorough examination of the record leaves us. without authority to interfere, and hence we affirm the
judgment.