Melican ex rel. Melican v. Missouri-Edison Electric Co.
90 Mo. App. 595
Mo. Ct. App.
1901
Check Treatment
BLAND, P. J.

I. At the close of plaintiff’s case defendant demurred to his evidence which was by the court overruled. Defendant’s contention is that the negligence (if any was proven) is not the negligence alleged in the petition. The suit was begun in a justice’s court by the plaintiff filing his petition therein, which, as to defendant’s negligence, states as follows: “On May 21, 1899, defendant maintained and used *601poles, wires and appliances for transmitting electricity in a certain public alley in the city of St. Louis; that upon said day plaintiff was lawfully in said alley and being ignorant of the danger came in contact with defendant’s wire charged with electricity, which ivas broken and displaced and was lying upon the surface of the alley, and was injured; that defendant had negligently suffered said wire to be,and remain in such defective and dangerous condition for a long period of time and up to the time of plaintiff’s injury and thereby contributed to cause plaintiff such injury.” One of the negligences complained of is, that defendant negligently suffered the dangerous wire to bo and remain in a public alley. One of the negligences proven on the trial was that the wire had been in the alley from eight days to two weeks prior to the injury; that- if swung around or switched up and down it would probably come in contact with a wire carrying an electric current; that the fact that the wire was broken and/was lying in the alley was known, and had been known from the day it first broke, by the servants of defendant, whose duty it was to remove it or report its condition to the office of the company and that they did neither. To meet the allegation that the wire was charged with electricity and for that reason was dangerous it was not incumbent on plaintiff to show that it was so charged all the time that it was down. Evidence tending to show that it might be so charged with electricity at some time and that it ivas so charged and was dangerous at the time of the injury was sufficient. The evidence offered by both parties tended to show that if the wire was moved around or switched up and down it might come in contact with the live wires and that at the time of the injur}’- a connection between the two was brought about (in some ivay not made clear by the evidence) and that the plaintiff was injured by an electric shock received from it. We are unable to perceive any material variance be*602tween, these allegations of negligence of the defendant and the evidence offered in support.

II. No answer or special defense was filed by the defendant, but the cause having originated before a justice of the peace, the plea of the general issue was raised by the defendant appearing and interposing a defense. In such circumstances the defense of contributory negligence was available to the defendant and was recognized by the trial court both in the admission of testimony and in its instructions to the jury. In effect the jury was told that plaintiff could not recover if he failed to exercise ordinary care; defined to be such care as a boy of his age and discretion would exercise under the same or similar circumstances, and were further instructed that plaintiff could not recover unless the jury found that the defendant had been guilty of negligence in maintaining the wire in the alley and that its negligence directly contributed to the injury.

III. Defendant’s refused instruction assumed the existence of facts not in evidence and also commented on the evidence. It is more in the nature of an argument than a declaration of law and was properly refused. No error intervening at the trial, the judgment is affirmed.

All concur.