Frazier v. St. Louis Smelting & Refining Co.

| Mo. Ct. App. | Jul 12, 1910

REYNOLDS, P. J.

(after stating the facts). — The errors relied on by the learned counsel for the defendant in this case are to the overruling of the demurrer to the evidence, it being claimed that under the allegations of the petition it was essential to a recovery by plaintiff that he prove defendant permitted the wire to be covered over with mud, etc., which it is claimed he failed to do; that the court erred in overruling the demurrer for the further reason that the wire was not down a sufficient length of time before plaintiff came in contact with it to enable defendant to discover and repair the same and defendant was not therefore guilty of negligence; for the farther reason that the plaintiff was employed to demolish the tank that supported the wire, in doing which work it necessarily resulted that the wire fell and that plaintiff’s injuries, if any, resulted from one of the ordinary hazards and risks incident to the particular work he was engaged in doing. It is urged against instruction number 1, given at the instance of plaintiff, that it permitted a recovery by plaintiff if the jury believed defendant negligently permitted an electric wire to be thrown down and covered over with mud, etc., and that plaintiff while engaged in doing his work came in contact therewith, when, as it- is claimed, there is no evidence that the wire was covered with mud, etc. Error is-assigned -against the giving of the plaintiff’s fourth instruction defining the measure of damage in that it permitted the jury to award damages for physical pain and mental anguish which plaintiff is reasonably certain to suffer in the future in the absence of any evidence, as it is claimed, that his injuries are permanent or that he might be reasonably expected to suffer therefrom in the future. The seventh instruction is complained of as error in that it singles out the evidence of the witness Hipshire and comments thereon. Instruction number 8 is attacked as erroneous in that it permitted a recovery by plaintiff if the jury believed he was injured by coming in contact with a wire which was covered up when there was no evidence that the wire was covered up and because it declares the facts hypothesized to be negligence as a matter of law instead of submitting that question to the jury to determine as one of fact. Finally, error is assigned to the refusal of the eighth instruction asked by the defendant, as it is claimed that there was no evidence that the plaintiff suffered any permanent injuries and it is claimed that the court should have so charged the jury.

Taking these assignments up in gross, it is sufficient to say that we do not think any of them are tenable. It is true that the evidence does not show how this wire was situated when plaintiff came in contact with it, for no one saw it. It was not in sight; whether covered up by .mud or debris, no one could say. One or more witnesses, under skillful cross-examination, said it was not1 covered up by anything, but these same witnesses said they never saw it at all until in the hand of plaintiff, and the first that plaintiff knew of it was when it struck him above his shoe top.

It is urged that defendant had no notice of the presence of the wire in time to remove it. There is uncontradicted evidence that before the plaintiff entered upon the work of tearing down the tank on which it is claimed one end of the wire rested, there was a current of electricity going through the ground in that vicinity and that the foreman was told of that fact. That current must have come from some defective or grounded wire. Whether the wire Avas embedded in the mud or covered by the debris, it was a concealed wire. It is true that it is not definitely stated just bow long before tbe accident occurred tbe witness Hipsbire bad told tbe foreman, wbo was tbe representative of tbe defendant, of tbe presence of a current of electricity in that vicinity. It is common knowledge that sucb a current can only proceed from a grounded wire and tbe very fact that tbe foreman was notified that there was electricity in that vicinity, running free through tbe ground, was sucb a warning of danger as to demand instant action to trace it to its source. With many men working around in tbe presence or vicinity of a grounded wire, that fact being communicated to tbe foreman, it was bis business, irrespective of any other matters in which be might have been engaged, to have taken instant action, to have sought out tbe source of danger and removed it. In sucb a case, time of notice is not a question of moments, hardly of seconds. To permit any time to elapse or even to have permitted tbe men to work at all in that vicinity with knowledge of tbe presence of a deadly peril, involved in tbe presence of a loose current of electricity, was gross negligence.

Tbe eighth instruction, which was asked at tbe instance of tbe defendant, was properly refused. It was tantamount to a declaration that plaintiff bad not made out bis case.

It is true that the court should not pick out and comment on particular testimony to tbe exclusion of tbe whole testimony in tbe case, nor call attention to that of a particular witness. But in the case at bar no reversible error was committed in this respect. Tbe only witness wbo testified to tbe fact of communicating the information as to tbe current of electricity being in tbe ground in that vicinity was the witness Hipsbire. He was uncontradicted and even in bis cross-examination, rigorous as it was, in no way whatever shaken as to bis testimony in this respect. Under sucb facts tbe error is not reversible error.

Tbe objection to tbe instruction as to the permanency of the injury is not well taken. We have set out the testimony as to that. Plaintiff testified that even down to the day of the trial he felt the effects of this shock, and the allegations of his petition were broad enough to allow the jury to take that into consideration in determining the amount of damage. It did not need expert evidence to aid a jury in so simple a matter.

There was evidence in the case from which the jury could determine and were warranted in arriving at the conclusion that plaintiff’s injuries were of such a character as to seriously affect his nervous system, and damage by reason of these injuries is distinctly asked for in his petition. Tested by the amount of the verdict, five hundred dollars, it is evident that the jury were not led, either by the evidence or the instructions, into considering the injury sustained, whether permanent or not, of a very serious character. We are not, on the facts in the case, persuaded that that verdict should be disturbed. The judgment of the circuit court is affirmed.

All concur.