113 Mo. App. 429 | Mo. Ct. App. | 1905
— Action for damages for personal injuries consequent to a fall from the top of a telephone pole where plaintiff, a lineman,, was engaged in making certain repairs. Negligence on the part of defendant it is charged, was the producing cause of the fall. Plaintiff recovered judgment in the sum of three thousand dollars. No complaint is made of an excessive verdict but defendant asks a reversal because of errors claimed, to have been committed during-the progress of the trial, first among which was the overruling of its demurrer to the evidence.
The injury occurred September 8, 1903, in the city of St. Joseph. At that time the city was operating its own system of public lighting generating and using electricity for that purpose. The business of producing and supplying electricity for private use, either as power- or for lighting was conducted by the street railway company. Defendant was operating a telephone exchange. All three corporations used the public streets for their lines of wire — strung upon poles — which carried the power to the various points of use throughout the city. The currents of electricity carried through the streets. by the city and railway company being highly potential, the wires through which they flowed were insulated, and in many instances strung upon the same line of poles— defendant employing none but currents of low power used in their transmission bare wires carried upon its own pole lines. The pole from which plaintiff fell was situated on the east side of St. Joseph avenue at its intersection with Park street. It belonged to the city, but was in a line jointly used by the city and the railway company for the carriage of wires. This line came from the south from where the power was generated and pass
In order to strengthen the resistance of the telephone pole located in the curve to the strain imposed upon it by the weight and tension of taut wires, ‘defendant set a guy pole about one foot, north of the “railway pole” and from the top thereof ran a tightly drawn wire across the street to the telephone pole securely fastened to the tops of both poles and of sufficient strength to hold the telephone pole in place provided the guy pole retained its position. This was attempted to be secured by run
The guy pole had been in position for something less than two months. It is claimed that while at its base it was in line with the other poles, it was raked to the east when set so that its top was approximately three feet east of its base and cleared the outside “primary” wire; but owing to 'the negligent manner in which it was set, the top had been pulled west and north until the west perpendicular line of the pole was on a line with the pins carrying the intermediate “primary wire,” with the result that sometime shortly preceding the accident the outside primary wire, owing to the great pressure exerted upon it by the guy pole, tore out its fastenings from the cross arms on the “railway” and “city” poles and was thrown across the “city wire” upon its individual cross arm on the “city” pole, and also across
The length of the pole was some thirty-five feet. It was set in the ground about five and one-half feet. The anchor, a piece of po'.e five or six feet long,- was buried to a depth of about fi ve feet. Itwas notplaced upon a prolongation of a line drawn from the telephone pole to the guy pole but from six to eight feet north of such imaginary line, so the wire connecting the tops of the twopoles and that connecting the top of the guy pole to the anchor formed two sides of an obtuse triangle with the guy pole at their intersecting point, the third side — the one opposite to the angle — being an imaginary line drawn from the telephone pole to the anchor. The result of such construction imposed upon the guy pole a pulling strain northward against which the anchor offered no counteracting force and which, when yielded to, relaxed the tension of the connecting wire between pole and anchor and afforded response by the guy pole to the westward pull of the telephone pole. After the accident it was found that the top of the guy pole inclined northward about three feet. It no longer raked to the east-but stood in a perpendicular line east and west. As an indication that the pole had yielded to the strain upon it, the ground to the west of its base was found pushed upward and outward, while to the east there was a space between the pole and earth into which a man’s hand could be inserted readily.
The night preceding the accident a storm of some severity occurred, which blew down some few telephone
Thus, it appears a complete chain of facts connects defendant’s negligence in the setting of the guy pole with the injury to the plaintiff. We do not understand it to be denied by defendant that such causal connection has been shown by plaintiff’s evidence. It is at least tacitly admitted that plaintiff’s shock could have been produced as the result of the breaking of the primary wires at Broadway and their intermingling with the city wire, as above described. But defendant says that other causes for which it would not be liable could have produced the shock, independent of the negligent act charged, and that the jury necessarily was compelled to speculate in the selection of defendant’s negligence as the proximate cause.
It is pointed out that the storm of the previous night was of great violence; that much damage to poles and wires resulted therefrom, and that the break at the railway pole could have resulted from elemental action. It is not shown that any pole or tree or other object was thrown against the line at any point near the “railway” pole, nor does any other fact appear which indicates that the storm alone was responsible for the damage. It seems highly probable that the wires were torn loose
The storm cannot be considered under the evidence as a sole producing cause of the damage but rather as a condition which accelerated the natural result to be expected from the negligent construction. Also, it is urged that the negligence of some unknown person may have caused the cross between the primary and city wires, existing at the time of injury. It appears that some one had wrapped the loose ends of the broken primary wires around the city pole, probably before plaintiff received his shock. ’ Evidently, this was done to prevent injury to people upon the street. But it is not shown, nor does it
We do not feel justified in resorting to conjecture, as would have to he done should we infer that the contact of the wires above mentioned resulted from that act. But assuming, for argument, that the wires were negligently wrapped around the pole, and thereby brought together on the cross arm, we cannot adopt defendant’s conclusion that such act would lift the burden of responsibility for plaintiff’s'injury from defendant. The danger' was produced by the parting of the primary wires, the direct result of defendant’s negligence. The loosened ends of these heavily loaded wires, darting here and there upon the ground in a public highway, threatened any one who happened to be there, with serious injury —even with death. It was a work of imperative necessity to confine the danger as far as possible. Under such circumstances, the negligent act which first turned loose the death dealing power must be held to be the proximate cause of any injury resulting therefrom — not the acts of those who, in attempting to limit its sphere of operation, diverted its course, thereby aiding in the infliction of damage in an unanticipated quarter.
Other producing causes presented for consideration —one that the cross arm on the “railway” and “city” poles gave way because of their unsound condition, and another, that the pole from which plaintiff fell had been saturated with water from rainfall to the extent that it became a good conductor of electricity, and as such, together with plaintiff’s body, formed the connecting medium between the primary wire and the ground — may be dismissed with the observation that they are predicated entirely upon defendant’s evidence, and are contradictory to the facts brought out by plaintiff.
These issues, therefore, were settled by the verdict of the jury so far as we are concerned.
Finally, it is urged the demurrer should have been
.Under the views expressed we must hold no error was committed in overruling the demurrer.
Objections also are made to the rulings upon the admission of evidence. Plaintiff was permitted to testify relative to observations of the guy pole made by him two months after the accident, particularly with reference to the condition of the ground at its base. Another witness also Avas permitted to testify to the condition existing there two weeks after the accident. Both witnesses testified to the same condition: that is, that on the west the ground was pushed up, and on the east there was a space between the earth and pole. The materiality of the evidence is made manifest by the sharp conflict betAveen the parties relative to the manner of setting the pole. Plaintiff’s witnesses contended that it was raked
The evidence relating to the condition of the wires shortly after the accident also was admissible. Under the views herein expressed, the fact of the wrapping of -the primary wires around the city pole did not deprive such evidence of probative force. Without further comment on this branch of the case, we say there was no substantial error in the action of the! court in passing upon questions of evidence.
“An expert witness is one who is skilled in any particular art, trade or profession, being possessed of peculiar knowledge concerning the same, acquired by study, observation and practice. Expert testimony is the opinion of such a witness, based upon the facts in the case as shown by the evidence, but it does not even tend to prove any fact upon which it is based, and before you can give any weight whatever to expert testimony you must first find from the evidence that the facts upon which it is based are true. The jury is not bound by expert testimony but it should be considered by you in connection with the other evidence in the case.”
The italicized words are objected to as containing an improper definition and prejudicial' direction, the harmfulness of which, it is urged, is emphasized by the fact that some of defendant’s witnesses from whom opinion evidence was elicited also gave testimony upon basic facts. Generally speaking, the opinion of a witness who, by reason of his training and experience in a given art, profession or trade, possesses superior knowledge to that enjoyed by others is received for the purpose of aiding the triers of fact in reaching a conclusion upon an ultimate fact, not susceptable of direct proof, but deducible from proven facts. For the purpose of obtaining such opinion, the questioner is permitted to assume as proven the basic facts he is attempting to establish, and which are usually vital issues in the case. The opinion, therefore, is a dependent — a sort of superstructure imposed upon an hypothetical foundation— and stands or falls with its supporting facts. Obviously, a conclusion cannot serve to strengthen the premises
It is the duty of the court when called upon, to define the nature of expert evidence in the instruction given the jury; and error cannot be held to result from a correct definition. The meaning of the language employed in the instruction before us is clear and free from ambiguity, and we must presume the jury understood it in its proper sense. If they did, no room appears for the supposition that the credibility of witnesses who testified both to facts and opinion may have been affected improperly by the rules peculiar to opinion evidence, nor that the jury failed to give due weight to the entire testimony of such witnesses. The principle embodied in the final sentence of the instruction has been approved in a number of cases, and may be considered a settled rule. As opinion evidence is but advisory, the jury is not bound by it. [Hull v. Trustee, 138 Mo. 618; Cosgrove v. Leonard, 134 Mo. 425; Kansas City v. Street, 36 Mo. App. 666; Tel. Co. v. Guernsey, 46 Mo. App. 120.]
The judgment is affirmed.