189 Mo. App. 170 | Mo. Ct. App. | 1915
Lead Opinion
Plaintiff recovered judgment, as the result of a jury trial, on account of personal injuries and defendant has appealed. On June 16, 1912, the plaintiff was employed by the defendant in operating its electrically propelled passenger elevator in Springfield, being in what is known as the Woodruff building, an office building ten stories in height. The plaintiff was at work on the night of the 16th, his duties being to run the elevator and oversee the janitors. About one o’clock on that night he heard what he supposed was something crash on one of the upper floors and upon entering the elevator, for the purpose of going up, and in taking hold of the lever by means of which it was put in motion he received
The plaintiff in rebuttal introduced witnesses who testified that lightning arresters were an absolute protection against lightning and were in use generally in other cities in buildings of this kind and that they are considered the best appliance for that purpose. One witness testified that they were used in another building in Spring-field.
The plaintiff’s petition alleges the situation and conditions under which the plaintiff was working for the defendant. It alleges that it was the duty of the defendant to furnish him a safe place in which to work but the defendant negligently failed to discharge this duty in that they failed to furnish an elevator which was safe to transport him in because that the accident occurred, alleging the manner in detail. To this petition the defendant answered by a general denial and by a plea as follows:
“Defendant further alleges and says that at the time the said injuries are alleged to have been sus*176 tained by plaintiff there was a very severe thunderstorm and that the lightning was very severe and that any injury suffered by plaintiff was the result of a bolt of lightning, against which there is no mode of construction of elevator or device to defend or protect, and that the danger of receiving a shock in the operation of an elevator is a danger incident to the operation of the same and could not by any device known to science be altogether prevented.”
At the close of the testimony the court instructed the jury at the request of the plaintiff, in substance, that if the defendant negligently permitted the lever of the elevator to become charged with electricity to such an extent as to become unsafe and dangerous but used by the plaintiff in the ordinary discharge of his duty and that plaintiff was injured by reason of such negligence that then the verdict should be for the plaintiff. On. behalf of plaintiff the jury was further instructed that although they might find that the injury was caused by lightning conducted to plaintiff by taking hold of said lever, as aforesaid, yet the defendant would be liable if the jury found that the defendant failed and neglected to use ordinary care and prudence to prevent lightning of said character from entering said elevator and lever. The defendant requested and was given instructions telling the jury that it was its duty to use only reasonably safe equipment and appliances for the protection of its employees in the operation of its elevator and that if the defendant did provide such devises as are commonly used by reasonably prudent men in the exercise of ordinary care in similar buildings then the verdict should be for the defendant even though they might believe there was some other device or appliance later or additional to those provided by defendant, also that the defendant was not liable unless it was negligent in failing to provide such appliances to prevent accident as a reasonably pru
The general rule that the mere happening of the accident does not raise the presumption of negligence in an action by a servant against his master, is held in the ease of Hammilton v. The Kansas City Southern R. Co., 123 Mo. App. 619, 100 S. W. 671, cited by us in the case of Cody v. Lusk, 171 S. W. 624, 626. In the Hammilton case is discussed the exception to the rule and the reason for its application. The respondent has cited Thompson v. St. Louis Southwestern R. Co., 243 Mo. 336, 148 S. W. 484; Geismann v. Missouri-Edison Electric Co., 173 Mo. 654, 73 S. W. 654; Yon Trebra v. Laclede Gaslight Co., 209 Mo. 648, 108 S. W. 559; Ryan v. St. Louis Transit Co., 190 Mo. 621, 89 S. W. 865; Gibbs v. Poplar Light & Power Co., 142 Mo. App. 19, 125 S. W. 840. An examination of each of these cases will disclose that there may be a distinction between the facts there disclosed and those involved in this case. Whatever may be said of those cases it appears to us that it has not been clearly established in this State that the rule of res ipsa loquitur applies to injuries received by a servant in. his work with electrical machinery caused by the presence of an unusual amount of electricity, although this court in the Gibbs case, supra applied the doctrine as to a stranger, but whether it should be applied to a servant who may know no more about the appliances than a
In the case at bar we believe that the question of negligence is involved in this case, as in the Cody case, supra, not by reason of any presumption but because of the proof. In a recent case, Kelly v. City of Higginsville, 171 S. W. 966, the Kansas City Court of Appeals on much weaker proof than here concluded that negligence was shown, although the rule of res ipsa loquitur is also there applied. That was, however, a case in which the right of an employee was not involved.
In the case at bar it is clear that by reason of one of the fuses on the wire leading to the elevator being burned out on the morning of the accident that some unusual current of electricity had passed through it. In fact the defendant alleged in its answer that if the accident occurred it was caused by lightning and as the jury has found that it did occur we must hold, under the answer that lightning caused it. [Jewell v. Excelsior Powder Mfg. Co., 143 Mo. App. 200, 210, 127 S. W. 508.]
It is evident that if at the time when the current passed through the wire and burned the fuse out there had been some other devise which would have arrested or diverted the current that then the accident would not have occurred. We are, hence, led to a point where we must determine whether or not there was any testimony tending to prove that the defendant was negligent in not having what is' known as a lightning arrester at the point where the fuse was located or at some other place where the pragress of such an unusual current might have been broken or diverted. In all of the cases which discuss injuries caused by electricity, stress is laid upon its extremely dangerous and subtle nature and the importance of exacting the duty of exercising the highest degree of care to prevent causing
The appellant urges that its duty should be determined by general usages and custom of those engaged in the same or similar business, and refers us to our opinions in Sager v. Samson Mining Co., 178 Mo. App. 503, 514, 162 S. W. 762, and in Marques v. Koch & Kost, 176 Mo. App. 143, 153, 161 S. W. 648, but that rule is eliminated from this case by the facts which tend to prove that the custom prevails of using these arresters along wires in buildings where elevators
The case at bar involves not so much a question of custom and general use as a question of the failure to use a well-known and perfect device in or about an extra hazardous instrumentality. To hold that defendant shall not respond in damages for injuries inflicted by reason of its failure to use a well known device to protect its employee in charge of its elevators from deadly and unusual. currents of electricity carried by its wires would be subscribing to a doctrine that is countenanced by no authority to which we have been cited and a rule that we think should not be established.
In the case of Ridenour v. Wilcox Mines Co., 164 Mo. App. 567, 592, 147 S. W. 852, it is said:
“In all occupations attended with great and unusual danger, the master must use all appliances readily obtainable which are known for the prevention of accidents, and the neglect to provide such readily obtainable appliances is proof of negligence.”'
It was no part of plaintiff’s duty to give any attention to the equipment of or to the mechanism that operated this elevator and, therefore, it was held out to him as a safe place in which to work. [Combs v. Rountree Construction Co., 205 Mo. 367, 384, 104 S. W. 77.]
The duty being imposed on defendant to use the high degree of care demanded for the protection of’ the public, as held in all of the appellate courts of this State, the plaintiff had a right to assume, in accepting and performing this work that this duty had been discharged and his safety guaranteed commensurate therewith.
Concurrence Opinion
CONCURRING OPINION.
I concur in the affirmance of the judgment for the following reasons:
The fact has been found by the jury that the plaintiff received a shock of electricity from the handle of defendant’s elevator controller while in the exercise of ordinary care for his own safety.
The fact appears from the record that no building of the character of defendant’s building is shown to have ever been supplied with lightning arresters which fact is testified to by architects as to what specifications for such buildings include, as well as from the testimony of engineers that a lightning arrester is used on no other buildings except power houses, telegraph and telephone buildings, and places where electrical machines and instruments are in use. The testimony of one witness is to the effect that a lightning arrester was placed on a public building at Gary, Indiana. The specifications for that building, however, did not call for this appliance. Nor does the testimony show that lightning arresters absolutely prevent lightning from entering a building on wires where such arresters have been provided.
The law in this State, beginning with the case of Gannon v. Laclede Gas Light Co., 145 Mo. 502, 46 S. W. 968, 47 S. W. 907, which has been followed in numerous other cases, places the duty on a user of electricity to exercise the highest degree of care to prevent its escape from his equipment to the damage of others. The “highest degree of care” has been defined in a number of opinions as requiring the user of electricity to exercise the utmost practicable means
A lightning arrester is a well-known device to users of electricity, used for the purpose of preventing excessive charges of static electricity from being conveyed over the wires into buildings where electrical apparatus is contained and used.
It is well known that static electricity or lightning during a thunderstorm is likely to get on wires carrying manufactured electricity.
Defendant contends that its machinery was in such shape that the direct current used for the purpose of operating the elevator could not escape.
The evidence discloses that at the time plaintiff was shocked there was a thunderstorm in progress and that there was much-lightning and thunder. The further fact that there was a flash of lightning just as plaintiff put his hands on the controller, and the fact that a fuse was found “blown out” on this elevator, is evidence from which it can reasonably be
The fact that defendant’s evidence tended to show that others engaged in the same line of business, to-wit, operating office buildings, do not put lightning arresters on their buildings, does not furnish an unbending test of due care where it is necesary to measure the highest degree of care. The cases cited by appellant laying down the rule that a defendant cannot be held negligent where the evidence shows that he conformed to the ordinary usages and methods employed by those engaged in the same line of business are all cases where such defendant was only to be held to the exercise of ordinary care, and not to the exercise of the utmost or highest degree of care. One reason for this is that in exercising ordinary care to make a place reasonably safe a master does not have to use the latest and most approved appliances so long as the appliances he uses are reasonably safe, and in determining whether he has exercised ordinary care in making the place reasonably safe his conduct is to be measured by the conduct of those engaged in the same line of business. [Coin v. Talge Lounge Co., 222 Mo. 488, 121 S. W. 1; Bohn v. Railway Co., 106 Mo. l. c.
