216 Mo. 601 | Mo. | 1909
Plaintiffs are the father and mother of a five-year-old child that was killed on the 25th day of June, 1904, by coming in contact with a wire highly charged with electricity hanging down from a pole in a public street in Kansas City. This suit is brought under sections 2865 and 2866, Revised Statutes 18991, the petition alleging that the accident occurred because of the negligence of the two defendants.
The street railroad, or that portion of it to which our attention is drawn, is a double track, extending from Guinotte avenue on the south along Montgall avenue north to Nicholson avenue. This road was-was built in 1900 by the Heim Brothers who at that time owned a brewery on Guinotte avenue. The power' house of the railroad was located at the corner of Nicholson and Montgall avenues. The railroad was built, owned and operated by a corporation called the East Side Electric Railway Company, and the brewery by a corporation called the Perd Heim Brewery Company, but they were both really the property of the two Heim Brothers. The Heim Brothers then owning and operating both the brewery and the railroad, contracted with the Telephone Company for telephone connection between the brewery and the power house. This was accomplished by the Telephone Company stringing wires along its own poles from the brewery to Montgall avenue, and thence to the power house along the trolley poles of the railroad company parallel with the trolley wires and installing the telephone in the power house. At that time the brewery company had a private telephone exchange in the office of the brewery, and the installation of the telephones in the power house put it in connection with the brewery office.
The defendant, the Metropolitan Street Railway Company, bought this railroad of the Heim Brothers in July, 1901, and the telephone was continued in use until July, 1903, when it was disconnected and taken
Late in the afternoon of July 24, 1904, a severe wind storm passed over that part of the city and by its force one of these telephone wires was broken in two places and the broken piece was thrown across the trolley wires. One end of it, as it lay across the trolley wires, hung down, but not far enough to touch a person on the ground; the other end came down to or near the ground and the wire being naked and coming in contact with the trolley wires became hqavily charged with electricity. On the nest morning about sis o’clock the plaintiffs sent their five-year-old child on an errand which led him along Montgall avenue, and a few minutes later the child was found lying dead near the trolley pole, his body in contact with the wire.
So far the facts are undisputed. What dispute there may be relates to the question of notice to the defendants of the dangerous condition of the wire after the storm had broken it and blown it across the trolley wires. "We will consider the evidence on that subject hereinafter. The case was given to the jury on instructions that authorized a verdict against the Telephone Company if they should find that the telephone wire belonged to the Telephone Company and that the Telephone Company knew the condition of the
An instruction authorized a verdict against the railroad company if it knew the condition or by the exercise of ordinary care would have known it a sufficient length of time before the accident to remove the wire.
There was a verdict against both defendants for $5,000 and each defendant took an appeal.
I. There is nothing to indicate negligence on the part of either of the defendants in the matter of the stringing of the telephone wires on the poles of the railroad company or installing the telephonic connection between the brewery and the power house. City authorities often require a corporation to whom it grants the privilege of erecting poles in the street to allow other concerns to string its public utility vires on the poles, and that is not an unusual regulation, and in this particular that which a concern may be required to do it may do by agreement. Nevertheless the stringing of wires in a public street even for telephone purposes is liable to cause some inconvenience or possible danger and it is allowed only on the idea that it contributes to the public convenience. "When, however, the public use of the wire has been discontinued there is no excuse for allowing it to remain, and therefore to the extent that it is perceptibly an inconvenience or danger the maintaining of it is negligence. ' But the liability for such negligence is measured by the consequence that could reasonably be anticipated to follow from the negligent act. The law on this point is well stated in Am. Brewing Association v. Talbot, 141 Mo. 674, 1. c. 683-4. Conceding, therefore, that it was an
II. On the question of the ownership of the wire by the Telephone Company we think there was sufficient evidence to authorize the submission of it to the jury.
But the serious question is, did the Telephone Company have any notice of this condition in time to have removed the wire before the accident?
There is some discrepancy between the plaintiffs’ witnesses as to the exact time when the wire was broken, but neither of them professed to be very exact and the discrepancy in that particular is not very material. There is a discrepancy, however, on another point that is more important. A young lady was the only witness who was looking at the wire when it broke. She was standing on the porch of her house. She testified: “Well, late in the afternoon, about half past five or six, I noticed the wire break. ... I was on the front porch, and the wire broke on the post opposite our house, and one end of it hung down by the pole and the other end the wind blew over the trolley wire, and it hung down. There was room enough for the cars to pass under it.” She said the cars continued to run there all the evening. She was looking at the wires when this one broke, before it broke it was strung from pole to pole and was almost straight, there is always a little sagging between the poles; this wire was in the ordinary shape in that particular.
Another witness was standing at the entrance to Electric Park, he thought it was between four and five o’clock — nearer five; he saw the wire sagging between the poles so low that he judged from where he stood he could almost have touched it with his hand, the sagging was caused by the wind storm, the wire was not broken, he did not see either end, he only saw the sagging and he told a man in his employ to go
The man who was ordered by the last witness to go to the telephone and report the condition to the company testified that he was with the last witness when he observed the wire and he saw it at the same time, one end hanging down and curled at the end, that when ordered to go 'to the telephone and report it he went, that he called up a number, he was not sure what, he said: “If I remember — I am not sure— I think I asked for 600, but I don’t remember if I did that or told it straight to the telephone girl. . . . They said, ‘All right.’ ... I told them the telephone wire was down. . . . Q. All you know is you telephoned to somebody and somebody said this thing to you? A. That is all.” After first stating that he saw. the wire, one end hanging down and curled at the end, he stated that the wire was not broken when he saw it, but “just sagged down; that is all I noticed of it.”
Those last two witnesses afford all the evidence there is in the case of notice to the Telephone Company that the wire was down. The testimony of the ■defendant Telephone Company is to the effect that they had no notice of it at all. But we will consider the case on the plaintiffs’ evidence alone on the re
Of these two witnesses the first was the more intelligent and reliable. He did not know that it was a disconnected and disused wire; he saw no break in the wire, he only saw that it sagged. If that i is what he saw and if that is what he reported, then he did not see or report that which the young lady saw and which was the cause of the accident. Assuming that this witness and the young lady were both honest and intelligent, that they knew what they were talking about and were telling the truth, it is impossible to conclude that they both saw and both were attempting to describe the same thing. The young lady said she was looking at the wire, that it was straight from pole to pole, no sagging except the slight sag that is seen in all wires so strung, that she saw it break by the force of the wind, one end of the piece broken out was thrown by the wind over the trolley wires, while the other dropped down close to the pole with the end near the ground; she also said that the end of that part which was thrown over the trolley wires hung down but not low enough to touch the cars that' passed. The other witness said there was no break in the wire, there was only a sagging between the poles, and that is what he reported or attempted to report to the Telephone Company. The other man who said he gave the information straight to the telephone girl, first said that the wire was broken and one part hanging down curled at the end, but afterwards said that he noticed no break at all, it only sagged. These two men were standing together and what one saw the other saw. Neither saw the wire broken with one end across the trolley wires and the other hanging down, and therefore neither reported such fact to the company; the only thing they claim
We are also of the opinion that what was said by the two witnesses concerning their efforts to communicate with the Telephone Company was not sufficient to show that they communicated with the company at all. One of them did not remember what number or whom he called, the other said he called up the number which he usually called when he wished to make complaints to the Telephone Company, but whom he reached by that call'he did not know. It would be mere conjecture on the part of the jury if they should say on such evidence that the defendant had notice of the situation. We are not saying or implying that notice in such case might not be given by telephone, but notice given to some one without knowing to whom it is and no evidence that it reached the person or concern for whom the notice was intended, is no notice at all.
We hold that the instruction asked by the defendant Telephone Company to the effect that the plaintiffs were not entitled to recover should have been given.
This breaking of the wire by the wind occurred, according to plaintiffs’ witnesses, late in the afternoon, half past five or six o’clock, the working day was over, there was nothing in the way of an interruption of the railroad traffic to call the railroad people’s attention to the situation, how then can it be said that the railroad company was at fault in not sending inspectors over their line during the night? Conceding that it is their duty to use ordinary care to inspect their lines, yet can we say that the circumstances of this case are such as to raise a question of fact as to whether or not the railroad company used ordinary cafe to inspect its lines? If so then such a question may be submitted to the jury in any case. We. see nothing in the evidence to justify the submission of the question of whether or not the railroad company knew or by the exercise of ordinary care would have known the dangerous condition of these wires. Therefore the instruction asked by the railroad company in the nature of a demurrer to the evidence ought to have been given.
There is another question discussed in the briefs relating to the instruction given at the request of the plaintiffs on the measure of damages, but in view of what we have above said on the merits of the case there is no occasion to consider that question. The judgment is reversed.