*1 67G previ- Appellant bad presence. procure if lier
wood, ho could later conviction violating liquor law. Such ously been convicted of emphasizes credibility his witness lessened doubtless if he corroborating simple sale, his denial of his importance of by Greenwood. by testimony Helen it, corroborate may guilty, was entitled to a fair chance Appellant be but he hearing jury evi- guilt upon after all passed his majority opinion prec- produce. establishes a he could dence good justice may trial of some but un- edent defeat charged with the commission of a crime. citizen fortunate Raglancl, J.,C. respectfully I dissent. concurs herein. therefore Light Laudwig Company, Ap- O. H. Missouri Power & v. Central pellant. (2d) S. W. 625. February Banc, 4, 1930. en
Court Higbee <& E. B. Hamillon Mills appellant; counsel. *3 Campbell .Campbell respondent. M. B. John and M. *4 injuries. damages personal for for DAVTS, is an action C. This per- was negligently recovery is The basis of electricity escaped whereby uninsulated, to be and remain
mitted house, roof of on the was then plaintiff, who struck therefrom and wire from from the distant engaged moving, in which he was returned, ver- plaintiff, a favor of eight jury in five to feet. The judgment en- appealed from the $15,000, and defendant dict tered thereon. find- plaintiff warrants the part
The evidence adduced on plant and 23, 1925, an electrical ing defendant, May owned on Kirksville, city poles strung on in and near the maintained wires in trans- poles wires, used current. The which carried electrical bounding State fence mitting Plata, followed the east current to La injured cross- Highway place No. 7. where was At which poles porcelain insulators, arms carried on the twenty-five approximately were feet were fastened. The cross-arms electricity However, carrying ground. the wires above the twenty-three feet. cross- sagged At street to an of about altitude thirty-five forty feet ings highways were and over the cross-arms height. injury, gate permit in ac- At the was erected cess the field.
Plaintiff engaged May was On the business of houses. 1925, he engaged moving ivas house, placed on a truck, together and the altitude of house and the truck above, twenty ground. and one-half We infer feet in width, house about fifteen feet as about fifteen feet of the permit fence had taken been down to access to an site in intended L, shape the field. The house constructed in of an what may L portion projected through opening be called the the. fence east twelve feet into field. Also erected east, boundary light east fence poles, poles, carrying were telephone height. wires, telephone about fifteen feet progress seems, impeded of the house into field catch- ing L. the east end of the obviate difficulty, plaintiff To climbed to the roof and sat the ridge, astride and a half foot *5 two feet from east L. help the end of the With from ground, the telephone by raised a rope, means aof so rested it on the roof. It was purpose also his to raise the two other wires by Plaintiff, same the method. when he was struck, was from five the ten feet from nearest wire, distant uninsulated which carried
68.1 ivas of which hat, sweat band wore a the volts. Plaintiff 13,200 rope pulling in for use letting plaintiff was down the damp. "While a of he saw streak testified that telephone a witness up ball fire into a as and evolve of electricity leave the electric wire he fell plaintiff, whereupon egg big a hen and strike plaintiff’s was ground the occurrence hat the roof. After of a it, pen- the size lead burned into about have two holes found to found in the hat cil, on it. The holes were it had no burns but other In just rested above the ears. places over the where side, on each just plaintiff’s head, thereto, appeared on above two bums addition holes in hat. ears, juxtaposition in was highway placed of the to be The house raised west injury it had the east. been moved a site to At time highway along from two hundred block, a estimated at about knew hundred Plaintiff defendant maintained to four feet. danger- high mentioned, tension wires and that it was at any charge The engineer, touch them. of the traction ous to being conveyed, engine pulling the truck on the house by snap then the electric heard and was current. said he stunned finding that, plain- further warrants after Plaintiff’s evidence injuries position, but before the house moved from its de- tiff’s years who superintendent, line for a number of fendant’s had been service, visited the of the occurrence in its and examined the scene including there, situation, hat, presence several people, hat, stating called the two holes in the attention to it, he had known electrical was what caused and that current Moreover, manager stated on jump six to feet. separate he had electrical arc two occasions that known eight feet, although jump this statement was a distance of six by him stand. when he took the denied show expert evidence tends to wit-
Defendant’s number practical to-wit, engineers, electrical and im- nesses, jump sixty-three or arc possible electricity to over hundredths inch, circumstances, even under the most of an favorable and that space jump or arc a could not of five feet without contact. practical to show no known or further tended method obtained carrying whereby wires, 13,200 volts of electricity, could in- be protection person object to a having afford sulated to contact therewith. plaintiff’s evidence further tended show that
Defendant’s head high tension wire. or hat touched appear will pertinent course opinion.
Other plaintiff, engaged petition avers that while house point highway, across state at about a half mile south injured was struck and city Kirksville, as the result of *6 682 owned wire, a escaping from
dangerous deadly and electrical cur- by which transmitted the and over operated and defendant remain to be and negligently permitted to rent, defendant denial; second, general first, a contains, The. answer uninsulated. amove attempted he to negligent., that plaintiff plea a that dangerous, and knew was he wire which transmission under a house wires. with said came in contact he that ground that petition on the demurred defendant I. The The, court, the demurrer overruled of action. to state cause it fails a sup- to assigns are advanced error. Several theories defendant port the contention. charges petition con- contention that
(a) first Defendant’s part to in- duty on defendant’s no to tains averment moving a plaintiff was petition its wires. The avers sulate along highway and over public across along and house suspended, and that defend- wire was which defendant’s to remain permitted the wire to be and negligently ant impliedly alleges, at petition least,, uninsulated. occupation lawful where of a in the exercise plaintiff was circumstances the defend- legal right be. Under these he had by insulating the duty protection wires. him the [20 ant owed ' p. 1210, L. sec. 355; 9 R. C. J. C. charges petition ignores that “the the fact specification The next being height insulated elevated to where were wires anticipate expect any reason had no petition one would come contact therewith.” The being avers that was on the roof the house knowledge is moved. It common oc- houses are least, highways moved casionally, and across at in this State. may petition From the recitals of the then be inferred that de- anticipate expect highway fendant could lawful users of the proximity come into close to its wires. specification point The last contrary first asserts that physical and scientific well known electrical current can By specification jump five to feet. this we are asked to take
judicial notice of a matter which appears, think, we be at least a debatable fact. said that little nature electricity; known of the it is seen only through accomplished by it, results and that mystery it remains as much of a as ever. The cases of Dunn v. Cavanaugh, Pennsylvania 185 Fed. Utilities Co. v. Brooks, 229 Hoppe Winona, Fed. 93, Minn. 252, 129 N. W. 577, (N. S.) R. A. Ann. 1912A, L. Cas. 247, recognize that a static zone is created around an- wire, uninsulated and that uninsulated "disruptive discharge” of a "brush” -or times off at throw person of a injury to or the death cause an electricity sufficient with the wire. We without contact proximity thereto, actual in close electricity jump impossible for judicially it is notice that cannot space contact a of five through actual the air without *7 or are alleged to declare facts to be are reluctant The courts eight feet. Meshevsky, [Schupback untrue. manifestly impossible and W. S. provide Revised Statutes seq., that, (b) et Section along public high- or across any move a house a one shall before way, permit move shall be obtained from a to the application definitely clerk county and the shall state necessary remove, is to raise or whether it interfere with certain, wires, and, so, if certain notices shall that be given. petition It is said demurrable, that because it fails to allege resulting plaintiff permit house, that a obtained to move the petition develops plaintiff was a law-violator and a trespasser. allegation Such an plaintiff’s was an not element plaintiff trespasser of action. If cause was a and defendant owed duty him no of protection, that was an affirmative defense to be pleaded defendant. It is in its plea nature akin a to con- tributory negligence. think the petition We to demurrer properly overruled. argued
II. It is that the trial in overruling court erred defend- ant’s demurrer to the evidence at the close of the case. Various assigned. reasons are
(a) It plaintiff trespasser contended that was a and a law violator, and that defendant him duty, plaintiff owed no because provisions comply to with failed of Sections 10737 in- clusive, Revised Statutes 1919. These sections provide, in sub- person stance, any move, before shall outside of certain cities, a public house or a highway, across permit a to move it shall county be obtained from clerk, application and the shall state definitely necessary whether it will be cut, remove, raise in any or way any with interfere electric transmission lines or wires, electric trolley any or or the feed interurban railroad, any or move any pole bearing wires, or such whether it will be necessary to cross any the tracks of steam or interurban railroad, and the owners noti- fied, and, appear if shall application from the any of these things necessary, requisite are given notice shall be the owners, upon imposed. are whom certain duties The evidence discloses that defendant plaintiff admitted Moreover, trespasser. a not evidence is silent respect with plaintiff’s permit, obtention of a it fails to disclose whether or also county evidence is clerk. from tlie one
not lie obtained to defendant any given notice as to of evidence devoid silent and toas respect company to their with telephone prior employee of defendant representative or presence there of a of de- admission In view the to or at the accident. time silence of trespasser and the plaintiff fendant was not is no there procured permit, not record as to whether or not tending did show that us fact or inference before complied with one has obtains that permit. presumption A duty relying upon fact of one not., law. If has is the he regards both remiss in As plead prove, it. defendant upon which plaintiff’s does disclose and as evidence point. consider relies, not authorized we are though plaintiff ivas a tres it be conceded that even However, by failing violating- permit obtain law passer and between his failure house, no causal connection there was move the injuries. doubtful that permit and the cause his to obtain *8 they telephone companies, to as refer include the statutes named unnecessary only. may, cut the Be that as it was to wires electric thereunder, probable it is telephone wires move- the house and to roof, telephone company plaintiff not the been on the that, had lifting been there wires in the same manner. employee would have its Baking 417, 89; l. W. Co., 396, 283 223 S. Black v. Mo. c. [Stack Co., v. Mo. R. S. W. Even if the burn Southwest evidence plaintiff permit, not it would not showed did have demonstrate that injury prevented. go have would could been that the or It would demonstrating that, if not been the no further than had on injured. Railway Co., v. roof, he would not have been [Rittenhouse 199, 299 Mo. S. W. 945.]
(b) charged duty with is next said that defendant was It no first, height the question, insulate its wire because to of the twenty-three twenty-five feet isolation to to tantamount insulation; required second, because and defendant to an- not person ticipate presence of the the roof house as be- it was ing wire; third, moved under its all the because evidence shows that high voltage insulated; fourth, its and, wires could be not because tending is the devoid evidence show record to insulation plaintiff. protected would have develops
The evidence
the scene of
as
the accident
suburban to
city
the
of I&rksville. AYith the evidence before us that houses had
prior
been moved,
injury
to
plaintiff,
the
to
from place
to
vicinity,
Kirksville and
as well as our
knowledge
common
site,
houses
moved from site
are
defendant was bound to know
time,
likely
that houses were
to be
from time
moved
and
highway
its
public
under
and
across
it was charged with
accordingly,
precaution
Tims
public
protection
duty
high
using the
safety
those thus
for
taken
should have been
ques
place in
height
wire at
of the
way.
that the
is
evident
for defendant
insulation,
or
to isolation
tantamount
tion Avasnot
would
expected
anticipated
houses
reasonably
have
could
were
persons
so
them
its wires and
under
be moved
purpose
-with
some
connected
likely
roofs
thereof
to climb to
occurrence.
though
anticipate the actual
not
moving,
it did
even
(N.
252, 129 N. W.
33 L. R. A.
577,
113 Minn.
Winona,
v.
[Hoppe
Co.,
Ann.
R.
247;
v.
Mo.
S.)
1912A,
Blackburn
Southwest
Cas.
Since so dangerous using highway as strung, to those practical possible in for defendant used Whether it was it. responsible not moment, is of no sulate Avire Winona, adopt reasoning Hoppe found Avithstanding. We reading: had vested “Defendant no supra, pertinent, l. c. though granted right bridge purpose, and, of the for that in the use council, right been due exercised Avith city should regard safety engaged in the vicinity of those safety if for, probable injury and, provided be their guarded against by right precautions, reasonable should not all, transmitting have been exercised at and other methods adopted Winona electricity and resorted to.” argument tending .The the record is devoid of evidence protected plaintiff sub- show insulation would have without negligence high voltage ca- wire, stantial to maintain a force. It causing injury along public pable death, highway, where users likely insulating are come AAdthin If danger, its Avithout it. de- danger not maintain persons fendant could it without as de- *9 not have should constructed its or veloped, lines, it should have transmitting provided methods of its other current. The failure carrying dangerous neg- wires electrical is to insulate life ligence. 20; E. L. 20 1210, C. sec. C. J. p. [9 355.] (c) urged petition It is that not the charge, the does nor does evidence show, that the transmission lawfully line was con- not
structed and located. It is evident from Avhat we previously have said the that failure to insulate the Avirewas negligence, notwithstanding the transmission lawfully line AA'as properly located and constructed in other re- spects. If provided not have safety per- the of using highway, adopted sons should other methods of transmitting its current. (d) It is said that judicial courts should take notice it is that
physically impossible for electrical jump current or arc from five
686 eight through ataño,sphere act, coni on the material without feet
ground opposed to knowl- phenomena common concede, A edge. contention. ¥e unable to are saw a streak of testified he witness for by a ball electricity wire, followed leave fire, egg, plaintiff. of and strike This a hen size testimony As is an occurrence. said well as sworn direct as requires Ruling pages 1008, 1009: an extra Law, in 10 “It Case regard testimony sworn as ordinary authorize the court case to 300 Meshevsky, v. manifestly [Schupback untrue.” impossible and testimony contrary to the said that S. W. also electricity physical but as remains fact, scientific well known and mystery very nature, we unable little is of its are. known scientifically electricity judicially physically notice either or eight through space jump will of from five 'to the air feet Cavanaugh, In Dunn 185 material contact. cases of v. without Pennsylvania Co. 229 451, Brooks, 93, Fed. v. Fed. Utilities Winona, (N. Hoppe Minn. N. W. L. R. A. S.) 1912A, 247, although impossibility Cas. 449, Ann. elec tricity upheld jumping raised, predicated was not verdicts were findings electricity jumped through eighteen air from inches we in feet, to three read evidence It appears the cases. from carrying the evidence in those cases wire, that an uninsulated cur high voltage, rent creates around another static electric cur diameter," varying according of uncertain rent static zone atmospheric conditions, the current tension of in “disruptive discharge,” throw off a “brush” or which will shock gets any it, touching one who within even without the wire. As the testimony develops instant case electricity did jump through space of from five to feet air, say we cannot impossible testimony was that the or untrue or that it is opposed to physical or scientific facts.
(e) guilty It is said that of contributory negligence voluntarily placing proximity thereto, himself close when he
knew high-voltage defendant carried elec- trical current. Plaintiff’s evidence tends to show, through employees, admissions of defendant’s it knew that the electrical current was liable to jump.- Plaintiff testified that he was unaware that electrical current could jump high-tension Contributory wire. negligence exists as a mat- only ter of law cases those where acts manifestly show such plaintiff’s want reasonable care on part impel as a fair *10 say to reasonable mind he did not exercise the caution for his safety own which marks the conduct of ordinarily prudent men. Plaintiff’s not conduct was such as charge him with negligence
687 163 N. W. Co., Power v. Interstate [Toney law. of as matter v. 457; Dunn W. 167 S. Co., R.Mo. v. 394; Blackburn Southwest 229 Brooks, Co. v. Utilities 451; Pennsylvania Cavanaugh, 185 Fed. R. 33 L. 577, 329 W.N. 252, 113 Minn. Winona, 93; Hoppe v. Fed. S.) 1912A, Cas. (N. Ann. 449, 247.] A. and overruled refused properly court the trial We think requested by defendant. the evidence demurrers testify, his wife to permitted plaintiff and trial III. The court that he had manager them said to objection, that defendant’s over jump from six known electrical made the that he show The tended to feet. evidence there, visit home on a statement defendant’s at plaintiff a to obtain conjunction physician, with within occurred. It was accident to how the written statement as regarding manager’s powers to ascertain scope of duty at the time was about plaintiff, and he the accident manager committed a However, the statement. he made plant management of business, that of particular line of may words, In status was infer. other his defendant, as we general rep- agent, he was a ego defendant. As such alter continuously necessary not and it was resenting principal his it either should have been such declaration that admission of specially did gestae or authorized. court part of res scope admitting testimony, for was within the of the this err in general powers [Phillips make the admission. v. Rail- manager’s 109; Cooperage Minea 179 419, Co., 111 S. W. v. 211 Mo. Mo. road, 162 W. S. App. 705, 741.] complains plaintiff’s principal instruction, Defendant
IY. could and was its ground it assumes question duty place wires at the when insulate its insulation possible. previously was not As we have said, de- readily fendant anticipated presence person coming in of some proximity to its wires house, consequently duty while and it was its either to every regard precaution with use reasonable to the insulation its injury, provide place at other methods The' transmitting its current. failure to insulate its wires at the negligence. v. question Union Elec. L. & P. [Hickman 570; Geismann v. Co., 226 W. Missouri-Edison S. Electric 173 Co., 654; Hoppe 654, Winona, S. W. Minn. 252, Mo. 129 N. S.) (N. 449, 33 L. R. A. Ann. Cas. 1912A, 247; W. Shannon v. Co., 315 Mo. Light S. W. & Power *11 again knowledge It is had notice or defendant neither said engaged moving' wires, re- was in a house under its
sulting develop non-liability such defend-
However, it had not insulated defendant admitted that charged anticipating moving and, its as with of houses wires, it is charged impliedly knowledge under its with notice and question in by plaintiff. of the of the house at the ¥e disposed question have heretofore of the relative to whether or not permit from obtained a the circuit clerk. As the evidence respect with is silent obtention of a permit, it unneces- any case, sary, finding under issue include the in- struction.
Y. given It is asserted jury the instruction by court of its erroneous, unintelligible own motion is because it is
misleading. The instruction tells the jury, sub- testimony sf'anee) manager that the to what said regarding jumping electric current admitted by knowledge fact, they notice if show found case, from other evidence in the that electric fact current carried likely might jump by to or defendant’s wire and injure persons coming it; they therefore, close if found that manager they did make such such statement, not consider state- showing fending ment as evidence show that electric jumped in this case. determined, testimony
As we have heretofore referred to in is, purpose the instruction was admissible for the indicated, knowledge to or part show notice electrical likely or'might jump current was from its wires. The instruction prejudicial was not or erroneous. Defendant contends jury
YI. that the verdict contrary of the given request. at to three instructions its Each of the instructions predicated Avas finding on a of fact which w>asde- füvei1 plaintiff’s batable. As evidence made a submissible case and as defendant’s theories of defense, by as developed the aforesaid instructions, by were found jury, on the issues thus raised, to be untenable, results that we are bound findings jury regard. in that judgment Ilemuood, 0., affirmed. concurs; Cooley, I!., sitting. PER CURIAM:—This coming cause into Court en Banc, the fore-
going opinion of Davis, C., heretofore filed adopted Division Tun, as the decision of court. Blair, Frank and While, JJ., concur; Ragland, J., <C. and Atwood Gantt, JJ., concur in the result only; Walker, J., dissents.