118 Mo. App. 103 | Mo. Ct. App. | 1906
This respondent was hurt by a sagging trolley wire constituting part of appellant’s railroad equipment. Respondent was in the employ of the Wabash Railroad Company as a brakeman and on June 3, 1904, while riding in an upright position on the top of a freight train composed of box cars, was struck across the face by a trolley wire, his nose broken, some of his teeth knocked loose and his lip cut. The accident happened at Kinloch, a station in St. Louis county where appellant’s electric line crossed the line of the Wabash Railroad Company.
Appellant insists that a verdict should have been directed in its favor because neither the petition nor the evidence showed it was under any duty to respondent to protect him from injury by the wire. The testimony went to show that box cars on the train on which respondent Avas riding were from tAvelve to fourteen feet high; that he was about six feet tall and that, ordinarily, the trolley wire, AA'hen in its proper position, was from a foot and one-half to two feet above his head when he was standing on a box car. It had sagged from its proper position so as to catch respondent across the face as his train passed under it. A statute of the State required appellant’s trolley wires to be constructed and maintained at a height not less than twenty-two feet above the railroad track. [R. S. 1899, sec. 1179.] It was palpable negligence for appellant to permit its overhead wire to hang down so as that it would strike a brakeman on top of trains. That is to say, appellant was
It is insisted that respondent was guilty of contributory negligence because he must have seen the wire if he had been using proper care for his own safety as lie approached the crossing. No such conclusion follows necessarily from the evidence. The court submitted, the issue of respondent’s contributory negligence to the jury and appellant has no right to complain of this ruling. The testimony to show respondent was guilty of any negligence was slight.
The judgment will be reversed because the court, in the instruction on the measure of damages, authorized the jury to take into consideration the permanency of respondent’s injuries and there was not a syllable of evidence to show he was permanently injured in any respect. In fact, his own evidence showed he had completely recovered.
The judgment is reversed and the cause remanded.
