*1 Yol. 307] OCTOBER TERM, 1924. Water, Light
Kuhlman v. & Transit Co. MARY KUHLMAN v. & TRANSIT WATER, LIGHT Appellant.
COMPANY, April One, 13, Division 1925. determining
1. APPELLATE PRACTICE: Demurrer to Evidence. In plaintiff jury, whether ver- 'failed to a case for the where a make duty favor, dict at the action law was returned in her it is the court, duty passed of this as it was of the trial courpwhen upon requested peremptory instruction, the defendant’s to consider testimony witnesses, as true the of her and in her behalf to allow every jury might inference the facts and reasonable draw from the circumstances of the case. Ownership
2. EVIDENCE: and Electric Plant: Acts of Control Management. plaintiff charges her hands Where that burns* body by appliances and were caused defendant’s defective wires and connected, premises with de- which her and an electric iron were ownership system may inferential- fendant’s transmission of the Testimony manager ly proved. a certain man in defend- was town; arrangements near-by ant’s office made wires, previously light installed with him to extend the another chicken, house; company, garage and from her residence to her installed, appliances bill wires and a those and stationery her, paid and her mailed to cost defendant’s received; day receipt office, two that a at said and a therefor manager injury telephoned men to said to send before her she response house, afternoon of came on the and in two workmen adjust injury the defective electrical undertook to or correct and house, appliances sufficient is evidence and chicken in the residence ownership operation electrical defendant’s to establish system. transmission company Inspect. Duty to An electric service ELECTRIC WIRES: 3. distinguished repairs, from make has undertaken to ap- inspection equipment installation, original customer, premises care commensu- pliances must use aof assumed, voluntarily obligation duty it has rate with repair inspect part upon use such care its failure making renders use appliances them safe for the extent damage. ensuing injury tp customer liable - n : Demurrer Injury by Causal Connection: Iron: of Electric Use plaintiff, strongly instead indicates to Evidence. The evidence alleges, by con- burned, electric defective wires being as she SUPREME. COURT OF MISSOURI, & Transit Co. house, using nected with electric iron in- she was in her jured by grasping dangling ground in her hand a wire outside house-; positively, though alone, but as she she testified that she was burned when she took iron *2 hold of the electric before she went out- away poultry side to take from the had house hot wires come wire, dangling in contact with the and it cannot be said that it was impossible may iron, that she have been burned on the electric allegation cannot be ruled that causal between the no connection injury evidence, and her was established the or that a demurrer to her should have been sustained. case Pleading: INSTRUCTION: Broader than Installation of Electric 5. pleadings, Wires. An instruction the and cannot be broader than given presumed error to harmful. such an instruction the is be charge any petition negligence in- did Where the not act of the premises, plaintiff’s an instruction wires of electric on stallation negligent, plaintiff’s! right upon hypothesizing care- to recover “the equipment said installation wires and on less and unskillful premises” is error. High Tension Electric Current. -: than Evidence: Broader 6. sup- finding not a which is An instruction should not authorize authorizing by any for ported a verdict An instruction evidence. “knowingly permitted plaintiff jury and that defendant if the find (cid:127) through pass high the and current to over tension electric allowed plaintiff’s premises appliances wires, equipment installed in condition,” where is erroneous in defective when the same amperage showing voltage electric what or evidence there is no plaintiff’s through passing home at the wires into was current amperage voltage showing con- injury, what or none time of her plaintiff current,”' “high none that tension electric stitutes a amperage voltage been or had a burned less have been not would expert wires, through witnesses offered passing and the twenty- agreed exceeded electrical if the that 'sides both current to have been amperes result the normal 125 volts five stopping breaking circuit and the fuses —a “blow” current. High Contradictory: 'Current. Contradic- Electric Tension
-:V. jury. instruc- confusing An tory mislead are instructions “permitted plaintiff authorizing if defendant verdict tion wires,” through pass over high curre'nt electric tension evidence “under that for defendant an instruction charge alleged against account of jury defendant find -cannot electricity voltage permitted an excessive defendant having contradictory; and both residence,” plaintiff’s are pass into being no plaintiff, there being given verdict and the been Yol. OCTOBER TERM, 1924. & Transit Co. high passed evidence tension electric current over the wires plaintiff’s residence,
into was error not harmless. Ipsa Loquitur. -: -: 8. -: ipsa Res The rule of res loquitur apply petition alleging negli- specific does not to a acts of gence. specific negligent alleged they proved, If acts are must upon presumptive negligence. there for a room reliance plaintiff alleged permitted “negligently Where that defendant dangerous pass caused electric current amount over the wires equipment plaintiff’s up- into home” the burden is plaintiff prove allegation, prove and not on defendant dangerous electricity pass that an excessive and amount of did not wires; over the and therefore it cannot be held that an instruction telling jury for defendant ex- no evidence of an current, given being cessive should have been no evi- —there allegation. prove dence to High Degree -: Skill: Ho Proof. The fact injured prove pos- does not that defendant’s workmen did not high degree authorizing sess a of skill. instruction a verdict An *3 plaintiff negligently carelessly, response for if in defendant and to request, employees inspect ap- her sent and to the wires electric pliances degree premises, possessing high skill,” on her a "not of inspectors given, should not be where there no that is evidence possess high degree Besides, did a re- not of skill. the law not does quire employees possess company a- that of an electric service high degree skill; only requires possess of them such to skill ordinarily reasonably is and with the of commensurate character performed by work to be them. (cid:127) - n — : Contradictory. authorizing -: 10. ver- An instruction a plaintiff employees, inspect dict if sent electric for defendant’s to skill,” house, high degree entering possess wires did not “a of employees authorizing plaintiff and another for if a verdict such possessed competent qualifications “all skillful work- of and men,” ordinary prudence but nevertheless “failed to exercise confusing. duties,” conflicting care in théir are Safety: By Employee: Allega- -: 11’. Assurances of Broader than workmen, tion. an electric com- Mere who are not officers of service safety pany, give general are to not authorized assurances of to although particular appliance, customer the use electric of company inspect repair sent a defective condition to beyond scope appliance. safety of General assurance is Besides, employer. employment, their and must eminate from the allegation appliances and that the workmen “made a test plaintiff informed the defective condition had been remedied appliances and that safe condition for were use” is not Sup, 39, Ho. 30? — 610 MISSOURI, SUPREME COURT OF Water, Light &
Kuh'lman plain- sufficient to authorize an a verdict for instruction to return carelessly plaintiff “negligently tiff if defendant assured knew, appliances they the exer- said were for use when or safe ordinary appliances known, were cise of care could have said they then and not safe for use in condition defective being were,” allegation proof the workmen or general authorized bind defendant with such assurances to safety. allegation, than the The instruction was broader proved. broader than the facts Roving -: instruction 12. Commission: Reference to Petition. An authorizing jury find to return a verdict “injuries direct and believe from the that her were the evidence charged negligence in her acts and carelessness result of the them,” roving jury petition, commission to is a peti- case, positive error where the and is the law of the determine support jury is no some and there evidence tion not read Besides, jury alleged negligence. should its acts of issues; practice pleadings the better to ascertain the left negligence specific relied act of in the instruction each to set forth upon proved. Trial, Error, 2708; Appeal 1, 38 4 C. J. to Headnotes: Citations Cye. 67; 7, Trial, 66, 45, 4, Electricity, Cyc. 1543; 38 5 to 2 20 J.C. Cyc. 11, Electricity, 1604; 587; 8, Negligence, 1615, 1618, 20 J. 9 C. ' Trial, 69; 12, Cyc. 1608. Appeal Lamb, Fred from Chariton Circuit Court.—Eon.
Judge. remande-d and- Reversed $ F. 8asse McKittrick, C. C. <& Jones, J. G. Collett appellant. Conlding é Withers
(1)
petition
it was
evidence
Under
peremptory
re
give
duty
instruction
of the court
by
quested
evidence
all of the
the close of
defendant at
a mahe
fails
record
The evidence in the
case.
Minneapolis
Electricity,
v.
417;
sec.
case.
Curtis
(N.
Elec.
S.)
Harter v. Colfax
A.
Cronin,
'816;
20 L. R.
Mass.
Co.,
Electric
188
; Brunell v.
Iowa,
124
500
Co.,
Middleborough,
Kuhlman Co. v. & Transit Ry. jury 398; followed. v. Mo. Co., Stid Mo. Pac. 236 App. Allen Crutch- 504; v. Lumber 171 Mo. Paris v. Co., App. App. Mo. er, 150; 1891Mo. v. Railroad, Smith 126 n ‘Wollackv. Transit App. 123 167. 123; Co., Mo. Taylor respondent. John D.
(1) true A demurrer to the evidence admits as every every prove testimony' fact tends reasonably drawn therefrom. Lebrecht inference to be 270; Bingaman Hannah, Mo. 1050'; v. 192 v. Miller, S. W. en 611. a demurrer to the evidence was On every inference from the evidence titled to reasonable light to her. Link v. Hamlin, taken in the most favorable Wagner, Wagner 390; v. W. 270 Mo. 204 S. 319;' Wojciechowski Coryell, Heat v. 638; 217 S. W. Weiss v. Electricity, pp. 837; Power 227 S. Co., & W. Curtis Mo, Montgomery 503. 620, 910; Railroad, v. 181 729, plaintiff’s (2) giving committed There was no error allegation negligence Every in in the Instruction 1. petition. this Moreover, in the struction found to the defendant. favorable instruction is an instruction jury finding prevents expressly issue from Knapp petition. 155 Co., Lee v. & in the not set out Mo. Mont Co., 517; v7 Mo. Transit 610; Chadwick (3) gomery 508'. There 181 Mo. Railroad, v. with giving 2. instruction This read Instruction error clearly expressly limits states law Instruction 1. the pleaded. Montgomery negligence jury to the acts pe (4) Nor the reference to 513. 181 Mo. Railroad, v. Rogers, Hartpence 143 Mo. 633. error. tition jury merely however that, informs Instruction 3 might skill does not excuse be,- a. workman skilled Appellant that there was negligence. the fact overlooks manager positive proof the defend that Wires installation of the company; he directed ant garage house; chicken the house lines from compensation company received the defendant with the was had when trouble labor; material Val.
lights immediately Wires was communicated with: that *6 following appeared the communication him with men purpose for the making’ inspections declared of cor and necessary rections they cutting ; that when controlled the off of the it was the correction, methods of current; inspection negligence and that the both a. indicated and competency. lack Appellant skill of and also overlooks jury the fact that the are entitled to draw reasonable proved. inferences from facts 2 Evi Chamberlain on (5) dence, art. 10-27. The evidence is uncontradicted plaintiff injury received her before discovered she the condition of the wire the outside. There no evi dence that she ever came in contact with the This wire. assignment part appellant of error on the of is not based upon any fact in evidence and an as unwarranted sumption. (6) plaintiff is no There conflict ’s between 1 Paragraph Instruction defendant’s Instruction plaintiff’s complains 2 of instruction because defendant permitted pass current to over the wires into the house they equipment when knew the wires a de fective condition. Defendant’s instruction instructs the jury permitted cannot find that defendant voltage electricity pass excessive into the house. entirely This dealt with an different situation and one upon which no issue was trial. Moreover, made there would be conflict the two dealt instructions merely points with the same matter. Instruction 1 out complained grounds negligence limits jury grounds right to those and denies the to find for plaintiff ground. other Defendant’s Instruction conflicting 3 in that limit instead of circumstance recovery further and would harmonious rather conflicting. Montgomery Railroad, Mo. 513. than personal damages in
SEDDON, for for C. Suit juries. petition alleges during year Plaintiff’s ' Light Company built trans- the Brunswick & Water ..1917 way Keytesville, by Brunswick to mission lines from purpose transmitting for elec- Missouri,
Dalton, SUPREME, MISSOURI, COURT OF Light Water, Kulilman v. & Keytesville trie Dalton, current from Brunswick to supply persons liv- said inhabitants of tows and ing along the for route said lines with electric current lighting purposes; Brunswick mechanical that said agreement Light Company entered into an Water company with and her wherein said husband agreed wiring, equipment to furnish a all transformer, plain- wiring equipping necessary and fixtures competent experienced together tiff’s with home, plaintiff’s men work, to do said husband pay com- said the reasonable and thereafter cost, pany said electric current to be used in furnish lighting purposes, and said home for and mechanical company agreed inspect keep- said transformer *7 proper operating and and skilled in condition to furnish inspection making experienced purpose of men for regu- wiring equipment home, in and used said of said might correcting lating any arise from that trouble and repairs might making that and all time to time and Light -necessary; the Brunswick that thereafter equip- Company plant, other sold lines and its Water ment to operate which has continued since defendant, plant lines, of said transmission electric means said to furnish said date continued has since and defendant persons of the service and to furnish current, electric repairs, correcting purpose making trouble for the of plaintiff making inspections, her husband and and carrying conducting and near Dalton, their home at Brunswick- agreement with the made theretofore the--day Company.; of Light June, that on & Water permitting an defendant was 1921, because either unusuah from trans- of current to come its and amount excessive plain- transformer and 'into said mission lines equip- wiring defect in and or because some tiff’s'home, escaping or current was in the electric ment said'home, parts equipment nec- charging it was with which of said per- using essary same, in so to come contact using im- same; that a shock when son would receive plaintiff discovery mediately upon 'condition, said Yol. & Transit Co. per- notifying
communicated the fact defendant charge son in its office at Brunswick, and within a manager short time thereafter defendant’s sent certain employees plaintiff’s purpose mak- home «inspection ing repairing correcting and and the defective they changes, condition; that made certain corrections repairs on said but failed to correct the occasion, plaintiff defective condition; on a num- thereafter, ber of times, notified defendant of such conditions upon repair called toit and correct such so conditions appliances that said could be used and ordi- the usual nary safely persons damage manner and without property, manager and defendant’s at Brunswick caused employees premises certain to come to the make and to inspection equipment, appliances, fixtures wiring purpose repair- correcting therein ing existing plaintiff’s the conditions and on home, having repairs said after 'and date, tests, made certain they changes necessary, employees deemed made said equipment, appliances a test of the installed fixtures plaintiff in said home and informed that the defective condition had been equipment wires, fixtures, remedied and appliances in a to be were safe condition ordinary manner for the usual and used period about one hour intended; within the to use an electric thereafter, iron, undertook equipment appliances, part de- of said and because per- employees negligently *8 and its fendant, servants deadly dangerous in and mitted and caused current pass through equip- and over the wires amount proper- because their failure to into said of home, ment equipment carefully repair ly inspect the wires, and and negligently appliances and because of home, in said and possessing proper persons failing and nec- to furnish plain- repairs, inspection essary making and skill such using severe received iron, electric a said while tiff, passing’ charge over and electric current a shock equipment appliances ren- through and wires, said hand seri- that her left was so her and unconscious der MISSOURI, OF COURT SUPREME Water, Light & Transit Co. amputation, injured, resulting ously in its burned and severely her back burned about otherwise and she was body shock; and that severe nervous a and suffered and negligence plaintiff injured and care- because of employees, as defendant, its servants and lessness dangerous permitting and an excessive aforesaid, pass transmission current to from its of electric amount equipment appli- and the-wires, and lines over negligence and because of their home, in said and ances proper inspection failing make and carelessness repair appliances, proper and because said electrical knowledge part of defendant’s skill lack of repair inspect attempted agents said lines' who its appliances equipment, in said wires, and the fixtures home. general plea of a denial and
Defendant’s answer is contributory negligence. judgment for verdict and
The trial resulted a unsuccessfully seeking a after for $10,000, and, appeals. trial, new defendant three-quar . Plaintiff lived on a farm about one and from Dalton about seven miles ters miles west Company, Light Brunswick. The & Water Brunswick along a transmission line in 1916 or the road west of constructed 1917, plaintiff’s In 1917, home. the fall lights plaintiff’s under ar for electric house was wired working rangement Nickell, made with a Mr. Company. Light Plaintiff and Brunswick & Water husband-purchased, paid transformer, owned the running house, the transformer the wires from including the electric house, fixtures, in the wires Light Company in & Water the Brunswick iron, and defend Wires, Albert 1920, In November, them. stalled helpers, manager extend with some Brunswick, at ant’s house north side of the from the- electric wires ed yards thirty forty northeast pecan about tree a house, chicken near which house, garage feet to one hundred tree west about from plaintiff’s for the cost husband bill mailed Defendant *9 617' Yol. Water, Light
Kuhlman & Co. v. Transit installing wiring equipment and the work paid by plaintiff defendant’s same, bill was at office in and defend 10, 19201, Brunswick on December receipt ant’s taken therefor. injuries Thursday, 30,
Plaintiff’s occurred on June about four o’clock in the afternoon. testified 1921, She Monday using- on the an elec- she had been that, tric before, washing up a storm came and she machine, when switched off the current. About two hours after up she turn the on and there storm, reached to switch light at wasn’t then called the office current. She manager, Wires, Brunswick and for defendant’s asked no current and asked him what and told him there was probably He it was due trouble was. told he blowing fuse out She asked if transformer. very told could send a and he her the roads man, they get send but as to it would bad, soon could again Tuesday plaintiff telephoned a man. Wires On would, man. He said he asked he send a Tuesday morning*two and about o’clock workmen eleven was. asked what the came to the house and trouble only there wasn’t know, them she Plaintiff told any didn’t light officeon the men called the current. One of the telephone 'current. them to shut off the and asked he and when transformer, went to other workman lights push pressed man button and one back, came Immediately dinner after left. the men came on and up complete washing, plaintiff, intending reached She it “shocked her.” current and on the and switched ringer stepped machine, started over to then garment get in the down tub and reached Emotion, clung* wringer, put said, “I and, as she it on the very very long go. The cord was let it—couldn’t would find it on heavy while at Iwork sometimes hanging it drew me down that, still While floor. my washing foot and I reached out with machine. stopped the motor.” pulled course, cord. Of telephone reported Mr. Wires called then She man. Plaintiff him to send a tes- and asked trouble SUPREME, OE COURT MISSOURI, Kuhlman *10 peculiar
titled: “There such a was noise the and that me. I house, worried touched the Whenever touching just them would shock me.” buttons, On Thursday three about two workmen afternoon, o’clock, and asked the trouble came what was. Plaintiff told only everything she “didn’t know, them I touched thing they me.” The first shocked did was attach porch something-; was meter, on the east washing house about feet from the machine. the three They of the men switched- on the current and one told put plaintiff plug stung “it him. He in and waited a light must be a and then he told me there awhile being the current was consumed. I somewhere, on said light the to make sure there was no on. went over house reported came back and wasn’t.” The workmen I out to house and the left the went the hen then house and They garage. in the house. not find trouble could They said find no trouble and came back and could “They went the west around to for a ladder. asked from the transformer entered the house where the wires got the truck and the workmen went to the house. One of wire and wire. and he took that back, roll of Came- it scraped insulation on the one end and bent back the step-ladder got up hooked to form hook, that ran transformer from the it over one the wires my end flower stuck one into bed.” to the house and plants on flower the west side There were some poultry plaintiff had laid some wire. over -which house, stepped dining room and one into men then lights pressed on he came the button them They stepped him. over it did shock said put cord electric iron ironing into the board and warm. man took hold until was One waited the iron Mrs. Kuhlman, seems “Now, and said, the iron right.” try right. think it all it. We You be all you to use it safe for me think “Do said, Plaintiff go They it.” The ahead and use “Yes, said, current?” put plug the iron and left then men ironing. testified: She hour started a half after about Yol. OCTOBER TERM, I “When I to iron and found the iron hot started was I very ironing long;,probably hadn’t or twen- been fifteen ty standing long, probably at the minutes, not that I was sputtering ironing ironing, sound and board there was go. I let a flash on I couldn’t current came fought myself floor beside I I was found —when my ironing There burned. I found hand was board. a sec- was a cot close and laid and I went down ond. remembered I I realized then I was hurt and telephone central to alone. then asked I went to smothering. just help. call a doctor I and send me hammock I was a started out the west door. There thinking porch it would that, west and I started yard opened I found be cooler. I the west door As *11 poultry stepped red wire was afire. I down When dang- length wire hot house and the was the whole picked ling up up against poultry a board I the wire. poultry get lying wire the reached over away thing some I knew The next from the house. my neighbors bending; over me. you help your went before
“Q. So call for was opened before the door and A. Yes, out? before I sir, any place anything wrong else. I discovered there was you get away attempting did the wire In “Q. your attempt A. No, sir. left hand? or to use use A. No, sir, to use? “Q. condition Was it it not.”' was neighbor, a witness testified, Brandt,
Mrs. telephone ringing went plaintiff, heard the that she hallooing after telephone and, one and heard some to the her hus Kuhlman’s, it at Mrs. learned was she she They there They reached home. Kuhlman band went afternoon. o’clock and five between 4:3o1 driveway distance some Kuhlman found Mrs. yard had she fence, where outside the from house ground. found Witness fainted and fallen to her into plaintiff’s left hand from flesh burned was was the flesh bone, and see so that one could hand burns three bad two had burned off thumb. She SUPREME COURT OF MISSOURI, right right both her left and shoulders her wrist piece Every burned, looked like were cooked. clothing- she had on had one hole in it at least. There were two or three holes in her burned waist.
On cross-examination, witness testified: “ n Q. Did you any place examine to see she where received look burns, around to see where re- she ceived A. them? Yes, sir. you “Q. Where did find them? A. On side
porch. ‘‘ you hanging; Q. What did find there A. ? Wires down. you
“What made think she had been burned on wire? A. She said she had. you say Did
“Q. hear that? A. Yes, sir. get ‘‘Q. How did she it? A. burned on said She against two-by-four- put that end. Said she took a against pull away the back wire to from the house. got She said she didn’t know she how, but hold of the wire with her hand. you got
“Q. When did she A. tell that? When I there. way got
“Q. said, Is what she she by taking hurt hold of wire? A. She said iron hurt her first.
“Q. And then she she said went out and took got stick to release the wire from the chicken wire, and *12 hold A. it of with her hand and that is her? what burned sir.
Yes, you “Q. And went looked on and saw the wire you? where had she hold of it did A. sir. Yes, you “Q. You said saw indications on wire you where Mrs. Kuhlman had hold it. What did see Something to indicate she had hold of the A. wire? kind of rubber off of it. spoke being
“Q. You about her hand burned the bone. like there flesh Did look was any.” A. I wire? didn’t see Nó, plaintiff, testified for that he Fred Laker went day .plaintiff home the Kuhlman burned. He was Yol. & Transit
Kuhlman main found a top wire around at wrapped but to, line about six down times, running1 or seven against down ground. hanging It was touching, to welded netting. The was poultry netting practically burned was gether netting around grass he cross-examination, a distance two feet. of about On testified: me Mrs. They A. told
“Q. What did for? you go suit- bring should wire; Kuhlman was on a that I hung able to remove the hot wire. gloves, etc., Yes, A. Mrs. sir. Did see Kuhlman?
“Q. you aon hung about “Q. anything being Did she say I arrived. when screaming A. she No, sir, wire? was A. In her? when you Where she saw “Q. was yard west of the house. just insulation where the Then saw wire <rQ:. you A. burned? Yes,.sir. was ‘‘ that was stuff look like the same And did that Q; the same. practically A. The on her hand? color evi- saw you you Didn’t state yesterday “Q. n A. I wire? she hand on where burned her dences the wire. burned her hand on stated she sir. A. Yes, thing? the same still state “Q. You you say saw you mean when you do “Q. What The A. hand on the wire? she her only where burned on account she burned it was I see that reason could wire there. the overheated finding burn on A. And the what else? And “Q. hand. wire that take hold of a Like if would
“Q. person take you Yes, sir, A. way (indicating)? here the edges it would sear (indicating), hold this way ’’ there. testified: for plaintiff, witness Laker, H. another J. word received A. I you? Who called “Q. some there was at Dalton central office prob- somebody electric regard trouble current — something. burned ably being A. you got? the information What “Q. hung someone was to me was that came information *13 SUPREME COURT OP MISSOURI, up on a live wire out at Kuhlman’s and, of know- course, ing consequences something what the would he in like got ready that we and went. you
“Q. Did see Mrs. Kuhlman? A. Yes, sir. you “Q,. Did see her A. hand? Yes, sir. you say anything”''about got “Did hear her how she burned?' A. Yes, and no. ££ yes complained Q. Tell A. and no both. She being- electricity, about hardly burned with but was shape exactly to tell she how burned. was say?
££,Q. What did she A. She said at first she probably was burned on the iron, then she some said way other as well. way?
“Qu What other A. I don’t know. you “Q1. What did she tell—did she tell she on burned the wire? A. she Yes, stated that it looked evident that she had been burned on wire. Why say
“Q. she A. did that? Because appearance. burn on her hand—the charred by? “Q. A. -What did she indicate that The in- coming sulation on the burn with wire, contact something else. again Tell
“Q. me what in- the wire that dicated she had it? hold of A. The wire was charred particles there insulation, and course might flesh charred her hand It as well. have indi- might gotten she cated have hold it.of “Q. wasn’t there some flesh on the wire? Then positive A. I wouldn’t be there was flesh. If had there been would have been burned. Something
“Q. Yes, there been burned? had A.. might have the insulation. sir. been ££ presence gentlemen you Q. In the two three any qualification without whatever there was stated on that burned flesh on that wire? A. I wire, flesh said might possibly have been flesh the wire from the of the wire. of the charred condition looks you also state there was no doubt “Q. Didn’t being wire I there because the it? A. about showed it. recall don’t TEEM,
Vol. *14 Water, Light & Transit Co.
Kuhlman v. deny deny saying you it, A. Do it? don’t “Q. I but a man can be mistaken.” behalf: husband testified her
Plaintiff’s your get that wife her hand burned on Did “Q. know me didn’t A. told she wire over there? She got know or but does not, hurt on whether she wire got she hurt in the house. kept Why you keep it A. I did
“Q. wire? to show at the trial. you got hand burned told she' her Your wife
££Q. got hand tell me she her never that wire? A. She did on the wire. burned you you that? A. she never did tell Are sure
££Q. on that wire. Not you anybody your you wife told Did tell
“Q. taking got way hold of she her hand burned was anybody told never that. A. I sir, wire? No, your you you anybody told wife tell ££Q. Did by taking way got that wire ? A. hold of she burned was away get the wire that she tried to someone I have told say got wire, she hurt but I didn’t house, from poultry say or it was the wire whether and I didn’t wire. you whether she did not know told Your wife
££Q. she got sir, or A. Yes, not? that wire burned on she got says don’t it. it she know she hurt on you her necessary ask made ££Q. What got you before that she she Had told wire? about the she Yes, sir, A. of course did. Said iron? hurt on the ironing. she got you on the iron what she hurt If she told
££Q. anything about you wire or ask her about did ask got simply just asked whether she for? A. I the wire hurt outside. you? satisfy concerned A. I was Didn’t ££Q. thought got outside. I inside or hurt she whether ’’ got asking- she hurt. her where harm nowas Taylor that he had ex- testified Witness pecan wiring- which about tree, in the amined SUPREME COURT OF MISSOURI, & Transit Co. forty fifty or feet north and east of the house and al- most in slightly front and to one side of the chicken house. The residence house faces west, transformer was south and west from the and the residence, ran wires from the through transformer into and the residence porch, to the meter on the back thence north and east pecan tree to the chicken house and thence fifty forty garage. feet west to the wires fastened to two insulators fastened limb of the pecan tree. The insulation was off one wires passed through pecan tree. There was a place burned on another limb of the wire tree, one touch- *15 ing place the against burned and the wire other almost photographs showing it. Several the location of the place the burned wires and on the limb of the tree were identified and introduced in evidence. expert
Witness testified an Sanderson as electrical plaintiff. inspection on behalf of made He of the passing through pecan they wires had been the tree found that
strung they against so rested the tree and supported point were not at that with insulators. Wit- glass ness said there should have been insulators keep away wires from the The knobs trees. swinging effect was that the of the the wind wires in when) insulation the insulation would wear on the “ground” system. off was worn there would be a “ground” “something a. Witness defined that inter- rupts current from the direct flow the line and throws something interrupts onto the natural flow off else— the current. It throws the current back over some part line. It other created a disturbance back line and sent current lines system in the house.” Witness testified further: ground a such de If there as has been
“Q1. you about, with the condition have testified here, scribed ironing person with this iron and chance and a person get would cause the throw would shock against against iron—the other this hand her hand way, coming with it some if it would in contact iron, Vol. & Transit Ct>. against
cause a burn on the hand that is thrown it? A. naturally, Of as soon course, touched iron -as complete with the body other hand their would the cir- passes through. cuit and the current you say ££Q. I will ask whether or not she happen should to have iron touched this somewhere, part, fingers any metal way, with her had and then way, come in contact with iron in some other it would ground body? have made dead A. she Yes, keep body. would the circuit in her you proper “Q. will whether I ask ever permit construction of electric lines to to come lines green in contact with trees or trees where moisture might be absorbed so as to cause condition A. there? very poor It construction.
Relative the electric iron, the witness testified: thing: develops <£Q. Is there such a aas short that in these irons? A. Yes, sir. thing
££Q. it? What that will do A. wires inside will become unwound around the mica—a composition silver metal. Suppose develops
££Q. a short in the what iron, consequences? will be the A. It won’t heat. - ££Q'. Will it have effect on the A. fuses? will blow the fuses. *16 say prevent heating?
££Q. You it the iron from will A. sir. Yes, long
££Q. How will it be before it will blow might twenty-five A. It be in ten fuses? seconds, according the back resistance current. purpose
££Q. What is those fuses? A. They protect receiving' are to the wires the house from plug current —the would if too much blow there was amperes passing than the alloted amount of more through. by ampere? A.
££Q. "What meant The amount is ampere Voltage speed, is an of current. a unit is of current. Sup.
307 Mo. —40. MISSOURI, OE SUPREME COURT & Transit Co.
Kuhlman dangerous, but It not the “Q. volt ampere? ampere kill. A. The burn—the volt will will ‘‘ electricity it amount will Q. Those what fuses, They made, think, take blow A. are I them? twenty amperes ten to from about twenty house runs fuse —a amperes. amperag’e gets high the fuses If the will blow. gauged A. will it It is What amount take?
“Q. twenty-five twenty-five. it went over would about If breaking’ stopping If the current. the circuit blow, they twenty eighteen got over
were fifteen and it they would blow. might hap- inquired
“Q. Mr. about Jones has what present pen you if iron. there was Were short Tes,.sir. when iron A. was tested? Keytesville, made not?
“Q. The test at was was A. sir. Tes, place brought
“Q. It from the Kuhlman was Taylor Keytes- shop at W. taken to electrical of J. ville? A. sir. Tes, iron found the test made the
“Q. When up nicely. good A. Heated to be in condition? plugs Assuming “Q. these were taken out two twenty amperes plug marked there is switch, 125 volts. A. That means it will stand 125 volts? right there was no If “Q. conditions danger you ground be no have would then, stated, up? you A. with the iron connected in contact if Only came the heat. from your fingers you it it would touch If would
“Q1. you give A. burn and not electrical burn? a heat Tes, sir. amperage ground increases the If a
“Q'. what—what effect would would do that condition causes ground would ? A. create this it have on you dangerous touched it. be blowing Might without one done out “Q. A. It could. While the fuses of volts? those *17 Yol. 307] & Transit Co. up twenty-five amperes,
test meant it would hold up thirty sometimes it amperes. holds n you voltage “Q. When have 110' to 125 con- might ground ditions arise to cause a should come I in contact so as to amake circuit would it burn? here, A. Of course it burn. would (cid:127) up point stepped it “Q. When certain to a would ought twenty- it blow those fuses? A. blow amperes very five or it whatever is marked, close. many amperes
“Q. How it heat an does take to amperes. iron? A. You can an heat iron with five lacking “Q. About iron current back into the —what effect would it have on the iron? A. It would ground say it. I mean to it would cease to be insulated grounded put you because the metal then and if itself your you get it hand on would an electrical shock. amperes, high About it
“Q. these would have how get get to make A. can that shock? You an elec- ampere ampere. trical shock on one-fourth or one-half an any handling “Q. it Would make difference dry That iron ? it wet or A. No. whether was'handled dry. perfectly is seasoned That would have to wood— soaking electricity. wet to become conductor of it moisture is not the conductor, wood conducts. you You this said? A. “Q-. iron, tested I believe up. it Yes, sir; heated up right? Yes, And it all “Q-. heated A. —was nicely. up it
sir; heated “Q. a short occurred in the iron ef- If had what A. have A short fect would it had fuse? direct it. would blow “ way telling there what kind of short Q. Is quick fuse or do to blow the how would would take short it do it instantane- A. it? If a. ously. twenty- twenty or It would take excess
“Q1. amp-res A. Not fuses? if there was five to blow the short. *18 SUPREME, MISSOURI, COURT OF Water, Light Co.
Kuhlman & Transit electricity? They are A. “Q. Then an overflow per momentary carry made to of ten to fifteen a excess They for, what are made cent. to blow should that is blow, twenty twenty-five amperes.
beyond long' person the hand on handle “Q. as has his As a danger? there A. No, is sir. coming only danger would be
“Q1. The then A. sir. Yes, contact with the metal? only it is in cases where That would be “Q. electricity?
charged A. sir. Yes, with wouldn’t have The heat of the iron itself “Q. it burn, A. The the iron would but effect? heat of wouldn’t be an electrical burn. ‘ ‘ electricity, charged Q. if metal with Even the was way long person iron in that hold the as as a had danger? A. would no No. person using with the that iron either
“Q-. Then a dry it safe- right could use or left hand with a handle, by ty way with she would come in contact unless some A. Yes, the metal? sir. ground it? A. The iron iron
“Q. The would’t ground it defective unless was itself. wouldn’t say time A. at It wasn’t the “Q. You it-wasn’t? ” tested. it opinion ground the that in his also testified Witness pecan tree between the have been located wire should between the instead of the west house, and the rear of placed the as house, front and the the transformer employees. by Furthermore, defendant’s plate about ground been anchored to wire should have ground prevent wire in the or three feet two ground. pulling out expert testified witness Keller as
Witness ground placing wire between defendant by done defendant’s house, and the transformer prevent purpose being proper, employees, directly coming voltage into and high from ground coming in caused wires house; that sending pecan instead of tree, volt- with contact Yol. 307]
age through, probably back the house, to les- tend voltage sen slightly, causing only but harm, dimming lights of in the house. “ Assuming properly Q. that the wire construct- running ed from the transformer into the house and amperes any- twenty is connected fuses, volt —125 thing amperes twenty-five excess volts would —12'5 properly sup- blow that out if A. constructed? posed to. *19 properly properly
“Q. If it is not and not wired say constructed, it is reasonable to that it wouldn’t blow though twenty amperes it out even it ran over or 125 might A. volts? It will never run over that. blow out at but less, it won’t stand more than that. experience you I
“Q. believe had with have some anything irons? Know A. about them? I how know yes are made, sir. you “Q. will I ask if the handle on the iron wood is a conductor or non-conductor ? A. Non-conductor. part Suppose
“Q. metal iron becomes charged electricity, person using keeps with it his if A. him? I it affect handle, hand how would wouldn’t think it him would affect at all. they keep
“Q. it? A. If Would their hand on it handle, wouldn’t. put say “Q. You this on here—that handle is is a A. non-conductor—that is I believe? true, Yes. put on for two reasons is it this
“Q. not, This is many, probably wood A. I handle? don’t know how two. electricity and the
“Q. One it is a non-conductor of heat? A. Yes, other it is non-conductor of sir. a. put handle it and
“Q. And it was on there as to so keep away any iron This from current? also to electric wrapped by having in mica so the wires is constructed supposed to be a non-conductor this' outside is supposed electricity? in to be A. No electric current touch it. with
630' MISSOURI, SUPREME COURT OP
‘‘ If iron wir- Q'. perfect condition is never ing attached condition there perfect ought be an A. electric current ? No, sir.
“Q. order, iron is in Suppose proper working; this electricity the coils all will into right, get inside are it? If part of A. I not. it is correct say should order it wont. working this
££Q. make it anything, charge What, A. have electricity? with It would anything? Is to it. It would have get break the mica through break the insulation. have to breáis
££Q. Some inside insulation would A. through? Yes, sir.
££Q. So it is insulation long clear so isn’t broken condition the metal proper iron is with A. sir. electricity? Yes, will not charged become ‘£ de true whether there Q. That would be A. Defects in the or not? anywhere system, fect else to do with elsewhere have that. nothing de so far as the iron ££Q'. concerned, Then up, that holds its own mechanism whether pends upon else? may exist somewhere of what defects regardless, A. sir. Yes, *20 to would have happen that something You
££Q. say in here —some get for the current iron inside down the entire mechanism? have to break would thing so, yes. A. say I should what to break that would tend Now,
££Q. then, much of the iron or too A. construction Faulty down? voltage. marked voltage Hot-point iron, iron
££Q. This That this iron means amperage. 5.2 for current? A. sir. Yes, volt with 110 made use more than 110 some reason volts And if for ££Q:. some naturally it tend to cause that would into get would A. would that iron? electrify of condition change true. be might That go what voltage in, excessive
££Q. Suppose A. have the wall would it switches? effect, any, down. them break It
Yol. Light Water,
KuMman v. & Transit Co. be If those broke what would “Q. down, switches the effect? A. The would blow. fuses consequence Then be the
“Q. what would put iron out of circuit. iron? A. It would electricity go- That means would be “Q. ing sir. Yes, the iron? A. into wiring and those were such But if fuses
“Q. get might break this above 1101volts it would might pos blowing A. without fuses? down ’’ sible. palm physicians her that the Plaintiff’s testified exposing burned to the bones bone, hand was left The burn on the tabs of tendons. extended down fingers back on the and thumb and the three middle in her back on the There were two holes wrist. burned right and a number smaller blades, left and shoulder hips, burn similar to the over both holes burned destroyed supply and the blood hand. The burn had palm causing it left to become hand, nerves of the amputation necessitating above 'the dead and wrist. to her nervous also suffered a severe shock Plaintiff permanent. physicians system, her deemed respondent appellant urges outset, I. At the jury, therefore, and that, to make a case for the failed refusing appellant’s peremptory the court erred nisi plaintiff’s end of offered at the instructions Demurrer to again of all the evi- at the close casé and Evidence. passing upon assignment this In dence. duty, in the first instance it was is our as error, testimony true the consider duty court, trial in her to allow respondent witnesses, every in- considering reasonable evidence, behalf, might cir- the facts jury from draw which a ference [Wagner v. case. This in the trite-law. cumstances 192 S. W. Miller, Wagner, 390;. Lebrecht v. 204 S. W. Ham- Bingaman Link v. 611; 270 Mo. Hannah, 1050; *21 Railway Montgomery 181 Co., Mo. v. 319; Mo. lin, 477.] (cid:127) MISSOURI, COURT OF SUPREME & Transit Co. Kuhlman Appellant in there is no evidence the record claims operator showing or it to he the owner the electrical system respondent’s premises transmission with which respond- equipment connected. true that were evidence to that effect. However, ent no direct offered inferentially proved. Respondent fact was we think that manager in Albert was testified charge Mr. 'Wires Light & Water, of the Brunswick office of the Company, appellant corporation; that in No- arrangements made with Mr. 1920', Wires vember, she light garage her to the wires from residence extend bill rear; that a mailed to chicken house was appellant’s stationery her for the cost of said work on appellant’s paid equipment, she bill at and that receipt its therefor. Fur- office Brunswick and took respondent telephoned this same Mr. Wires thermore, injured day she to send man or or two before response her and in two work- call, men to home injury. evi- on the afternoon of her 'Absent men came contrary, think shown are suf- we facts dence appellant’s ownership operation ficient to establish system. transmission the electrical says Again, appellant there is evidence in the tending that the men at re- record to show who-called spondent’s injuries who,' on date of her residence premises, placed ground on at the wire time, appel- any employ way or in connected were in its with think; inferentially fact likewise, lant. We, contrary, evidence to the the absence of shown, testimony just referred to. Appellant in the record insists there no evidence part inspect obligation showing duty or on its premises. equipment respondent’s The wires and equipment conclusively that the wires, record appliances shows premises purchased, paid for and original by respondent wir- The her husband. owned ing appears Bruns- to have been done the home by appellant. Company, Light wick Water equipment from the home the wires for the extension *22 633 Vol. Light Water, Co. & Transit v. Kuhlman concededly garage fur- house and chicken by appellant, and work of installation done, the nished, paid subsequently respondent, husband, or her but purchaser there is some thereof. While and the became authority weight authority, to the seems conflict support appliances the customer the the that, view by generat- company or owned are ing constructed not inspect electricity, company to bound is injury that is received not liable for an same, the by appliances, where it has reason of defects such though electricity knowledge defects, of the plant. injury generating [Cur its causes the comes from Minneapolis Electricity, General 417; on Law of sec. tis Company 651; 166 Fed. Brunelle v. Cronon, Electric v. Light Corporation, 188 Mass. Na 493; Lowell Electric Elec tional Fire Insurance Co. v. Denver Consolidated App. v. Middlesboro Co., 86; tric Smith’s Admx. Colo. Lynchburg (Ky.) 773; Electric 174 S. Peters v. Co., W. given Light The reason 333.] and Traction 108 Va. Co., that an for the above rule most of the authorities is authority upon light company electric has no to enter inspect private of individual customers domains persons, private au- property such without owned Minneapolis thority from do Gen- them to so. As said company, supra: eral Electric Co. “Can Cronon, private at citizen enter will the house unbidden, inspect pass wires into rooms to these its various day proper every they are condition to see electricity reception it has contracted sell? If employ large competent men so, must retinue of do under the rule con- work; absolute insurers this demand for, tended of the situation necessities would buildings should at have free access these all all rule of law hours under conditions. Such electricity pri- put furnishing tend to concerns vate electric But, houses out of where the business.” company repairs, as dis- seiwice undertakes to make tinguished inspection original from installation and equipment appliances premises of the cus- SUPREME COURT OF MISSOURI, applicable. a’ then different rule of Hav-
tomer, law engaged repairs, ing or undertaken to make it must use obligation duty care commensurate with the it has voluntarily upon part and failure its assumed, use ensuing injury damage. liable for such care renders Electricity, [Curtis on 494; Law of sec. Fish v. Electric respondent 122.] Dak. In 18 S. the instant Co., case, petition charges appellant negligence in ing in fail- with repairs equipment proper to make of the electrical *23 premises on her after it to make had undertaken said repairs. appellant The evidence to show that sent tends purpose maldng repairs, if nec- its workmen the essary, jury to and it was the function of the determine appellant making whether pairs. used care the re- had due Lastly, appellant urges respondent that failed to prove injured using that the electric iron, she was while appellant charged petition. in her In other words, as respondent any. causal con- claims that has not shown injuries of the electric nection between her and the use carefully the on this iron. have scrutinized record We point, respondent come dan- and it that has seems us gerously failing by satis- close to to establish clear factory injuries from the evidence that she her received all witnesses, electric iron. the testifies She, alone, Brandt and IT. J. witnesses, that fact. Two of her Mrs. been burned on testified that she had ¡Laker, she said ground porch the house. the front outside wire near she burned Another testified that witness, Laker, Fred say that it is her we do not hand on the wire. While impossible respondent may been burned have injuries, yet shown as electric of her iron, the nature may by strongly have that she indicates evidence, only palm ground was the been Not burned on the wire. fingers of her the three left hand the inside of similarly burned thumb bone, burned to the but she was suffering’ left body, back burns both right over burns as several shoulder as well blades hips. “Every piece of both cloth- Mrs. Brandt testified: Yol. & Transit
Kuhlman at on had one hole in it least. There she had iixg ’’ waist. The physical strongly or three in her two facts have been injuries may indicate that her were such.as left ground her hand the caused grasping dangling to the upon wire her thrown and, ground, being wire had come contact with her shoulders hips, the articles she at the burning through clothing wore time. the electric Ftirthermore, the evidence shows expert iron time was tested witness some respondent’s injuries after her and found prior trial, in good condition, apparently nicely,” “heated up However, without break or “short” in its insulation. respondent burned on the electric testified she was iron before the hot she went into get poultry yard wire away passing from- house. For purpose upon her testimony we must consider demurrer, true reasonable inference allow every jury might draw from the facts and circumstances it to ad- evidence, evidence leaving jury weigh the duced. The is, ap- assignment therefore, against ruled pellant.
II. in over its Appellant error assigns giving, objection, of numbered one. respondent’s instruction The a first that re- paragraph predicates of instruction r careless upon “the covery negligent, Instruction: equip- unskillful installation wires and of than Broader Pleading. unskillful and un- improper, ment manner on where premises workmanlike ’’ respondent’s clearly reference to she lived. A petition with act charged not therein that appellant shows is in the installation of wires or equipment negligence times a number of respondent’s have ruled We premises. that an instruction cannot be broader than pleadings the error in such an instruction that, given, when is to be harmful. the instruction giving presumed [State Railways Co., Walquist rel. 270 v. Ellison, 645; ex v. Mo. 224 Mo. l. c. 292 34; Railroad, Mo. Degonia v. 589.] SUPREME COURT OF MISSOURI, Kuhlman v. “second”
Paragraph of the instruction authorizes a recovery by reason appellant “permitting al lowing high tension current to pass over and electric. through the wires, equipment and appliances installed on said premises when the same were in de No Evidence fective condition, condition defendant or the exercise knew, care could ordinary have Appellant known.” claims that no evidence in tension the record the effect that it elec high permitted tric current through respondent’s pass equipment which to base appliances, upon this the in paragrah of struction, and, therefore, instruction submits speci fication of not proved by the evidence. negligence "We this claim error find to be well grounded. record does not show what voltage electric,cur or amperage of rent was passing wires into respondent’s home at the injury. time Neither does it disclose what or voltage amperage constitutes a “high tension current,” electric nor that respondent would not have been burned had a or voltage less been amperage pass ing’ through Respondent’s wires. expert witness can testified an electrical shock on one “you get fourth or ampere.” one-half an The expert witnesses offered both appellant respondent apparently electrical agree twenty-five current exceeded amperes or 125 volts the normal have result would been to “blow” the resulting fuses, breaking cir cuit and a In stopping of current. Harter Colfax Electric Light Iowa, 500, court, Power Co., “The ruling question raised, here said: precise trial court was in error the case to the submitting theory that defendant cur jury dangerous sent rent for the into the house to be dangerous, knowing such in reason there was evidence to sustain any struction. . . . The evidence without dispute shows had question that if defendant sent into hotel such *25 as it is electricity did, current claimed transformer, destroyed have burned out the in the fuses in the fixtures, burned out all the fuses meter, Vol. Light Water, Transit Co. lights. things
destroyed occurred, of these None thoroughly that ... is demonstrated however. knowingly a current not send into defendant did hotel opinion dangerous voltage. we Indeed, are plaintiff he claims could not have received shock in the thereof found to have some evidence had without lights And, of the hotel. we have other fixtures remained none them disturbed. meter said, were The perform its and the transformer continued intact, lights in functions. None of the the hotel were extinguished save the manner affected, and none testi- one in the fell to floor. The which bathroom, physical impossibility mony for these shows it'was things plaintiff passed claims to exist if such a current as ” through him. paragraph ’s instruc- the second
Besides, given clearly tion instruc- with defendant’s conflict ‘‘ The reads: three, tion which numbered Contradictory. jury the evi- court that under instructs against defendant cannot find case, dence in this charge permitted alleged that defendant acount of pass electricity plain voltage into an excessive taken to when instructions, residence.” The two tiff’s arriving guide gether jury at and read as its confusing, contradictory, verdict, inconsistent. are Implement Mo. Ritchie, In Co. v. Mansur-Tebbetts contradictory in l. “Irreconcilable 613, c. we said: necessarily confusing jury, in structions are this is harmless variably It cannot be said breed error. jury say are not able to instruction error. We ’’ foregoing disregarded. lan followed and which it guage approval, quoted by in State J., with Graves, Ellison, rel. v. ex 270 Mo. l. c. 656. ipsa respondent maxim res
But answers loquitur applies burden the instant so suit, upon appellant danger- an excessive show that ous of current her home amount sent appliances through negligence, and, its Presumptive defendant’s, instruction numbered therefore, Negligence. given by the three have been should not. *26 SUPREME; 638 OP MISSOURI, COURT Water, Light & Co. Transit may juris- court nisi. be the rule in other But, whatever rule is well in dictions, settled Missouri ipsa loquitur plain- apply doctrine res does not where the tiff, recovery upon specific negligence bases his of acts alleged petition, charging negligence in his instead general plaintiff terms. In that situation, assumes the proving specific negligence alleged, burden of acts upon as in other must and, cases, all, at recover, pleaded. negligence Railway In Pointer v. Mountain peti Construction 269 l. c. we Co., said: 114, Mo. J‘The by plaintiff application tion filed excludes the ipsa loqtiitur pleaded res doctrine. This has specific negligence, rely upon and in such case he cannot presumptive ipsa negligence loquitur under rule res who'pleads specific to make out his case. One acts of negligence negligence enough prove must such of such a, justify recovery, acts and a so to failure do bars recovery. although might him from a is true he And this pleaded negligence generally have invocation ipsa loquitur upon recovery of the doctrine res had a making proper proof. gone question have over We this thoroughly in [McGrath several Tran recent cases. v. Building Century sit 197 Co., 97;Mo. Orcutt v. 201 202 Co., Railway Metropolitan Mo. Roscoe 424; v. Street Co., Railway Metropolitan Mo. Price 576; Co., Street 220 seq.]” respondent l. Mo. c. et In the bar, case at upon specific alleged recovery her certain bottoms negligence, permitted acts of appellant “negligently one of which is deadly dangerous current caused pass through equip- amount to over the wires .and upon respond- ment into said home.” The burden rested prove specific alleged negligence ent to act and it appellant upon not devolve did to show that it did negligently permit high not current allow a tension pass equipment. over and said wires plaintiff’s paragraph “third” said instruc- “negli- recovery appellant tion gently .allows reason of carelessly inspect sending employees wires, TERM, 1924. Vol. y. Light Water,
Kuhlman ( appliances premises equipment on said De hí h ree ffiSrt11egree high degree possessing skill.” ours). (Italics 'There is evidence are support paragraph of the instruction. this the record came to that two workmen the fact The record discloses injury respondent’s her on the afternoon home telephone request, appellant’s response made of manager a man.” Fur- to “send office, at its Brunswick *27 evidence that these work- no fact, ther than that is- possess high degree skill. a of men did not respond- fact that from the mere follow, It does not negligence ap- may injured through of the have heen ent possess high, employees, pellant’s they not a that did employees Appellant’s hig’hest, degree of skill. even the degree highest may possessed still of skill and the have negligence chargeable in the with actionable have been respondent, premises. recognized by This is fact given by three, instruction numbered wherein shown ‘‘ employees jury you although find the that, the were told company qualifications possess all of the of the defendant engaged necessary competent to and skilled workmen by the evi- in their line has been of shown business, if.it your to the dence ordinary failed exercise satisfaction that performing any prudence'and of their care plaintiff’s premises, duties were which said duties employ- ordinary scope within usual line and their and care their failure to exercise such ment, that, and prudence, Mary and was the said Kuhlman became permanently injured, em- then mere fact ployees doing may competent have been such work Respond- skillful action.” defense this constitutes conflicting confusing. ent In one ’s instructions were appellant jury given understand negligence if em- could be actionable it sent convicted of ployees high possessing degree skill, employees possessed next all that, breath were told qualifications competent necessary and skilled workmen their and failed to line business exercise- 640' SUPREME OF COURT MISSOURI, & Transit Co. care in ordinary performing of their then duties, appellant could be convicted. .likewise reports published decisions courts this State other jurisdictions are filled with instances where employees possessing very degree of highest skill have, through carelessness negligence performance of their ordinary duties, their subjected employers liability injuries from their resulting carelessness. is but regrettable fact, nevertheless a truism demonstrated our daily experiences, “to err human,” best and most skillful among are not free from frailty. us this human we Furthermore, think this paragraph of respondent’s instruction re quired of appellant more than the demands. The ¡law law demands the master furnish employees possess ing such as is only ordinarily reasonably com skill them, with mensurate the work be performed [Harper v. l. 576; Railroad c. Co., Jungnitsch Mo. Iron Co., 105 Mich. l. c. To require employer 282.] to hire degree only high those of skill possessing than more demands. otherwise, law If the rule were *28 havg then this would appellant been to send required engineer electrical of inspector instead a lineman or perform duties of and ordinary inspection making repairs.
Complaint made of the is “fourth” of paragraph but that, constrained to believe under instruction, we are the allegations of the and the petition adduced, evidence no error was committed trial court by giving “or however, same. to omit the words be.safer, lack of skill” therefrom.
The “fifth” of the paragraph instruction predicates a recovery upon appellant carelessly “negligently wires, Kuhlman that said assuring Mary appli- said knew, ances and equipment they were safe for use when the exercise care could by ordinary °f same were defective, have known, safeiynCeS not safe use and that the same were ”in, were It is whether condition then doubtful they Yol. & Transit Co. instruction any spe-
this of the is based paragraph upon negligence cific act of charged plaintiff’s petition.
petition employees recites that defendant’s servants and “made a test of the and fixtures equipment, appliances installed in home informed said that the wires, defective condition had been remedied, in a con- were fixtures, appliances safe equipment dition to be in the usual and manner used ordinary for. A which were intended for said care- purposes.” ful that the above petition quoted of the indicates reading portion a mere of matter of inducement and statement not the But be allegation negligence. act specific may, employees this as there is no evidence were authorized to make by appellant assurances any or to the use of the safety equipment appliances thereby. bind mere appellant They workmen, and their officers, appellant corporation authority make bind appellant they might statements respondent’s limited. testi- necessarily According hold of the electric mony, employees one of took these iron and to be Kulhman, said: Mrs. seems “Now, took all You right. respondent it.” Whereupon try then employee hold of the iron herself. The tried it said: think respondent it is all right;” “We which “Do think it to use the current?” replied, safe me you it.” and the ahead and use employee answered, “Yes, go well be Such employee might statement on part opinion taken to be a personal the mere expression rely right part, respondent his had upon binding positive assurance of made safety upon proposi The identical appellant corporation. Insurance tion was in National Fire discussed ruled App. Co. v. Denver 16 Colo. Co., Consolidated Electric l. another c. wherein “There still 94, said: court reason not show fail. did why must appellants They *29 the for the electric light responsible was company the look after conduct of the man there to sent who was There is property at the fell. time chandelier the in- to proof that the either right depot any master had Sup. 307 Mo. —41. SUPREME,
642 OF MISSOURI, COURT rely settling quire employee, or on his answer, of the to presence danger. question of the the absence naturally put lights, out some of the chandelier fell they telephoned man to come to attend for a down up This he did, to the matter. locality he when went to that the fuse had of the accident he discovered put light probably burned which out the caused out, permitted of the wire which the chande- destruction though proposition lier to the latter is not clear. fall, inquired by depot he When he came down danger, re- he master whether there was sponded nothing no. There which demonstrates that company light by he bind this declaration. A could necessarily repair is not one who is workman sent to might light competent be the electric to advise. true responsible quite willing company to be held would be responsible employee, or done held work ought emer- done in an his examination as to what description. gency in no manner however, This, of that willing company would be fact, that the establishes responsible, ought responsible, or to be held to be held general such as for a situation was statement that knowledge danger.. assume be free from This would part wiring all over the his condition gen- presume building, examination of the and would ques- situation, answer that direct eral to enable him to rely depot company could so answer it that the tion, and light com- the electric and in case of failure hold it, agency responsible. or his pany believe his do not We sufficiently company established relations company his declarations.” bind plaintiff’s one, numbered instruction We find respects than the broader mentioned, above proved, and con pleadings facts than the and broader [State Ellison, ex rel. v. error. reversible stituted 589.] Degonia Mo. c. l. v. Railroad, Mo. l. c. 653; giving, its assigns over Appellant error in III. two, which plaintiff’s numbered objection, instruction *30 Yol. 643 y.
Kuhlman & Transit Co. jury reads: “The they court if instructs find and believe from the evidence that while exercising* using* ordinary and care usual in the electrical appliances injuries resulting in her home received in the injuries, any, loss of her hand and other in if detailed you injuries further find said evidence^ negligence the direct of result of acts and careless - charged plaintiff’s petition, ness as of one plaintiff’s part negligence them, that no' act of your contributed then verdict thereto, should be plaintiff.” (Italics ours). Complaint are is made-that roving jury this instruction is a commission determine the law of the case. record does not petition jury, show that the was read to the and even unlikely jurors, it had been, is unversed legal phraseology recognized, as are, would have charges specific much less" the several remembered, of negligence practice making therein stated. The of ref pleadings rence to the for the issues to be tried has been condemned this court in Britton St. Louis, Mo. recognize l. c. wherein it remarked 445, is “we approve practice jury the rule of that the must pleadings left to the to ascertain issue.” The better practice incorporate and safer is to in the instruction setting plaintiff’s theory recovery every out of each specific negligence upon proved. act of relied Cer negligence alleged tain of petition acts are oft by plaintiff abandoned the trial, times and more often unsupported are evidence, the instant case, as pleadings up negligence a reference to the relied recovery jury grant on for tends mislead the jurors roving commission to determine for themselves law the case.
Complaint against plaintiff’s made another one inasmuch instructions, but, as there must be a retrial the case, and the form and of the instructions substance entirely may take then it un- turn, different we find profitable unnecessary assignment to discuss this error. MISSOURI, COURT OF SUPREME Brockman.
Groes v. By assignments al- reason of the of error herein judgment lowed, must be reversed and cause nisi. Lindsay, remanded, and is so ordered. concurs. G., foregoing opinion CURIAM:—The PER Seddon, ' adopted opinion C., All of the court. tlie *31 judges concur. FRED GROES, W. E. AMY D. GROES, GEORGE EMMA
GROES and THOMPSON ARTHUR HARRY H. BROCKMAN, GROES, CHARLES DUCK BARBER, NELLIE BARBER and MARY Appellants. WORTH, April One, 13,
Division 1925. Statutory Proceeding: Appointment 1. PARTITION: Sale: of Without action, statutory Commissioners. is a al- Partition Missouri equity‘practice though largely are ex- the statutes follow the pressive rules, grant power if with a to decree a sale of of equity statutory authoriz- the situation the cases meets of the conditions 1919, sale; ing 2047, a authorizes a Revised Statutes Section allege commissioners, plaintiffs appointment sale, without the susceptible prove kind division in is ndt property that parties. all the is to best interest and that a sale as a whole partition, by plaintiffs Facts. -: Sale: Authorized appointment they com- a sale of the without when seek lands 2047, (Sec. them, required are missioners divide statute susceptible property allege 1919) of division that R. S. will interest whole best in kind sale of the allege, parties; is authorized to court so all where a) acres, the tract consists of the whole where sale of decree coparceners; wide, long are nine and 120' rods 140 rods $2,000, mortgage proof encumbered with is that more; $2,000 been judgment contracts have lien for and a suit, into, some commencement of since the entered more of parties interests one or undivided have sold their one-eighteenth only in- parties, them have and some of other road; good terest; aon land fronts 120 rods the improvements, half, and that the east than half is better west testify many one-third, witnesses $2500, the west are worth