*1 Telegraph Company, Corpora The Western Union Lena Tate v. August Moeckli, Appellants. 364. S. tion, and August 20, Two, Division Gladney & Hooker, Jones B. Francis Stark Jones, appellants.; of counsel. *2 Eagleton
Mark Bearing, respondent. D. Marsalek for Moser, & Telegraph Company and
BOHLING, C. The- Western Union awarding August judgment Lena Moeckli, servant, appeal from a damages $17,500 alleged and resultant in- Tate an electric shock juries the tele- received on when a wire of October of the Union graph company-came in contact wires Light Company. Electric & The decision on the first Power reported 76 W. failed to make a submissible defendants contend (1) impossible case in facts demonstrate was high tension telegraph been in contact with the wire to have flat, porch, evidence, wire and the so mentioned shock; whereby might electrical to afford a means suffer an *3 being (2) impossible that it of electric current trans is to conceive where testified she re porch mitted from kitchen; (3) that it is inconceivable that and ceived shock.in might passing a floor have current over the kitchen affected standing for an examination of the upon it. The- call contentions exhibits, and drawn to facts established showing involved, scale, the elevation- of' the structures plat a therefrom, together arising inferences with the natural and reasonable light plaintiff. v. St. Louis-S. viewed in the favorable to most [Tash Ry. 695(2); John 690, F. Mo. Co., 22, (2d) 674, Chicago Ry. Co., & I. 64 S. W. son E. Ry. Co., 116 677(1-3) ; Pac. Mo. 450, Missouri Gratoit v. . 1098.] Missouri, in Louis, one of Plaintiff lived at No. Sarah St. Street, building. story apartment apartments of a two' four downstairs seventy- flat is north south.' The rear of the Sarah Streét runs line Sarah Street. Plaintiff’s six six feet inches east of east concrete, eight wide, extends feet porch, made feet three back having steps, side, iron handrails on six inches east and the. either eighty- east, inches a total distance an additional four feet two wall of said Sarah Street. The south four feet five inches east of eight inches north of- south porch appears approximately reach a steps appear to on the flat, and the handrails wall of said alley-is immediately public height An and west of seven feet. east ‘ alley Proceeding south. across plaintiff’s apartment. south of pole a the center line of six inches to flat, it is four feet n (insulation being uninsulated phase 13,200 volt supporting a three Company, Union Electric useless) high of the circuit electric fifteen, inches to the north feet three additional corporation, and an Bros, alley from building building, across wall Brauer of the extending eighteen of .the plaintiff’s flat and feet nine inches east east wall reference position pole of said flat. The exact extending to the east wall shown. Crossarms of said flat is not forty-three pole support southward from the tension line alley feet above and one- approximately the surface of the seven' half porch. top coping feet south of The of the the south line of the fifty building alley coping Brauer is feet above the approximately extends Brauer to three feet above the roof -of the two building. building At the a chimney, southeast corner of the Brauer extending approximately coping. Twenty- nine to ten feet above building feet four five inches wall of south north the Brauer housing is the north wall equipment of a structure and de elevator as a ‘‘penthouse,” imposed upon scribed :east wall the wall building. penthousé approximately of the- Brauer nine to square height. ... eight ten feet accident, -previous telegraph'
Some company to the neighborhood. had moved one of its Sarah This officés Street span made a of iron wire useless.- This wire extended pole stub eighty fifteen feet feet east of the line of east Sarah chimney penthouse Street to a on the or on the building, pole being Brauer 125' inches feet ten north-of the north building. wall of the Brauer After the hereinafter men tioned, -severed'piece twenty estimated-close to - - . length alley. feet in was:found iñ the telegraph company message' Defendant sent crew to-take down morning wire on the 1926. Defendant of October Moeckli was building one of the crew. He went to the roof of while a lineman, Ray Whitaker, pole. rope -ascended Moeckli 'took a. the stub *4 being with it him, messáge the intention to have Moeckli cut the wire nonconductor, rope,-it being and attach the and for Whitaker to so; keep message rope the wire and pull taut and the wire as to avoid message high:tension contact between said wire wires,' and the message, message thus lower the wire. When Moeckli' cut the wire slight he slacked his arm on account of the strain and received a shock, whereupon he released- the wire. report -There-was a and a floor, just cleaning.-her flash. Plaintiff had finished a- kitchen mop reaching wet and was for a broom when explosion the and flash occurred. appeared She-testified that there flames, to be a dash of injuries. that she shock, received a fell the to floor and received Mrs.’ Neff, occupied upstairs apartment who -plaintiff, above testified washing that she was dishes the time of the and had: broken; downstairs; some of her dishes -that she hurried and both plaintiff they- arid lying testified that saw plaintiff’s the wire : steps railing immediately across the explosión.. iron after Assuming- message wire remained pole; attached to' the stub- physical im- to.
do' the facts outlined above demonstrate be. with one of in contact possibility message for said wire to have come porch and railing thus the. wires circuit.by the electric preclude portion said establishment of ? an electric shock means which have received claims to testimony given trial'of at the defendant Defendants stress chimney on the was méssage Moeckli that the wire attached to the. building above the roóf two (approximately five feet However, plaintiff offered building). wall south of the taken in .Moeckli deposition evidence in chief of said defendant testified that May 1928, wherein the instant case on penthouse. was This the wire fastened to the northeast corner by through deposition in evidence testimony, adduced and offered constituted sub objection, probative, had value and without ,said penthouse. proof message that wire to- stantive was attached (dis 298, 317, v. 337 Mo. Chapman, [Pulitzer W, 5-10) ; (Mo. App.), C. & 253 S. Berry Peacock D. Co. cussion v. 456, 460(13). 316 Mo. Sugarwater Fleming, v. See also W. 111, . 115(5).] law'that, “when the' tes .-We are accord with the rule of contrary timony to-the upon of a witness a material issue inherently necessarily upon facts, or-when such relied opposed to are so impossible, or the inferences deducible therefrom manifestly the courts are not probability false,' all reasonable as to be stultify by testimony, but giving bound to themselves credence such (Mo. United Rys. wholly disregard App.), Co. will it” [Roseman citing ;-but 251 W. the instant case the facts of cases] existing preclude application rule and the variable factors light testimony, plaintiff, here. viewed a-favorable although raining days, that it it was established had been several raining day question; plaintiff’s' that- kitchen linoleum just damp, having plaintiff; was wet mopped Or been designed electricity- upon coming message carry volts of -the Union in contact with tension electric Electric- line Company forming ground, a short circuit or would fuse or message vaporize, the insufficient af insulation on the wire that, circuit; protection against fusing 'volt 13,200 ford or necessarily vaporizing ware would -not instantaneous adequacy appreciable take an depending but'would the contact and the character of 'the insulation burned through, the' wire would occur at where *5 electrically chain, necessarily point at weakest, the like not the high (plaintiff’s expert testifying: wire with the tension of contact point No,- A. likely‘go up Would it at thn contact! -it will “Q, of -f-using chain”); upon at the weakest like a. and that the place, fuse- message of 'the wire it would cease to be a as the conductor eiicuit thereby significance would be this broken. Under the at- message twenty length tached to the estimated the severed wire foot of alley- importance found in the the after the ceases to have defendants; attached to it for if counsel for it would fuse where electrically assump- the weakest based the upon counsels’ contention point forty-three tion that it fused at feet the of contact above the alley surface of the and could not then been in contact the have railing plaintiff’s of back based porch, is variance premise with facts adduced on of plaintiff behalf 'and for the determination that, was;at- jury. message must, as we the Assuming, penthouse, tached the in the facts- evidence and deductions from irrefutably disprove laws based clearly thereon do not so possibility message the wire in contact with a wire of high said plaintiff’s tension circuit and north rail of porch.as the preclude straight all probability reasonable of such an occurrence. A edge placed plat the on corner the penthopse the northeast of stub, pole passes steps porch. the rear plaintiff’s over the of showing message exhibit the elevation of the structures discloses -that line, strung top wire straight in a of northeast corner penthouse pass through to the stub pole coping of would building; may said and it be demonstrated on exhibit.that twenty length it is a possibility length for a wire than less necessary to pole penthouse reach from the stub to.the con- high .wire, tact with the circuit the north tension north existed, porch. appears, coping rail It no opening in th.e message passed length wire. If coping, said wire over the slightly Furthermore, would be increased.’ consideration should be slack, given any existing .th,e message high and in the wire tension, .wire, developed which we do not. in the evidence. The .find message length of the piece severed wire at close was estimated twenty If length shorter, the..probability, feet. its actual to. correspondingly, If contact be would aforesaid increased.... electrically wire fused at its weakest between the. steps, on.plaintiff the..greater tension wire and rail ’s the distance fusing greater occurred from wire the be w.ould probability .being .wire with said hand- contact against rail. The contention is ruled defendants. contentions,to wag.not The other possible effect fully an- to receive electric are developed, shock discussed and ruled opinion former the. [336 4)], repeated and-need (3, here. jury The- for $25,000; judgment, returned aiid after verdict- remittitur $17,500. ; $7500, Appellant forced was entered for verdict, insists the remittitur, judgment, before re- after *6 a mittitur, so further grossly require are a new trial or excessive as to remittitur. thirty-nine age per in
Plaintiff and years testified of that she was fect health of accident; at the time of the occurrence that the report striking chair and flash a and floor, she fell to the table that she was a to work herself couple dazed for minutes and had shoulder, up; immediately back, that her from pain she in her suffered side; just line, the shoulder to and above the waist ankle left eyes that her con pain she suffered in her and flashes before head stantly continue; long* headaches, severe, for a and sometimes her; that numbness in her her heart bothered that suffered a she limbs; irregular condition, painful that her and- and menses were trial; although pronounced, as at time of the that not existed she constantly stoops or1bends has her back and she suffered when very poor pain; she suffers are in a state and intense that her nerves go em not her and places she is able to on account of nervousness go barrassment; times,” she if downtown lots of “happens that she to regain has has to to and her stiff and she stop herself, foot becomes it; body, spells wait in to that tremors her overcome she has shoulder; starting reaching her nervousness and her foot to constantly sleep and rest. that her nervous her' condition affects diseases, Deppe, specialist Dr. Arthur H. a in nervous mental ’ 1928; on November that she was testified he examined commonly suffering known as psycho-neurosis, or functional nervousness; slight to her Rhomberg, that she had a attributable having complete nervousness; anesthesia, loss that she suffered from body, half her head and prick pin sensation over left her highly people; that neck, type in nervous anesthesia found again De- normal; plaintiff'on appeared reflexes that he examined hyperactive; 1934; were cember that her tendon reflexes lower left side of her complete did to the that she not have anesthesia as distinct body, although there was not perception pain side; symptoms of nervous- right other that she still manifestéd as bad as on ness; probably that her nervous condition was change any structural examination; evidence of first that there was no conditions; only functional system in the manifested nervous she Dr. completely recover. would not plaintiff, opinion, and that his January, 1935, plaintiff’s back F. G. he examined Pernoud testified diagnosed her surgical case and aspects with reference to involving spine hypertropic condition as arthritis —arthritis bones; spine that rims about the joints spine was unable to spine' limited were movements of direction; dis- any the condition is normally spine arch the There permanent in character. abling, painful and offered effect; although evi- defendants experts like from other tending permanency minimize denee the extent and oí injuries suffering.
Plaintiff no suffered bone fractures. bruises received dis- gained weight appeared.in couple of weeks. She since the has. age menopause She occurrence. condition sets was. *7 accompanies nervousness She her that condition. was confined to, by bed for during three weeks and treated once week a physician by that time and physicians has been treated at intervals since. She lighter able to good is attend the household duties when she feels but attempts upset. trips more becomes makes downtown .She her physicians. and to by disclosed the instant As record record v. 321 Mo. Barlow, 1052, former Bushman [see 1062, 329, 15 (2d) S. W. $5000 332(6)], plaintiff sued original changed petition, $3000 which amount was when defend- telegraph company presented application ant an for removal to the court; employees Federal corporate that thereafter parties $15,000; were made defendant and amount was raised that, upon judgment $15,000 trial was had petition; on-said defendants contended the amount was excessive but this court found (2d) unnecessary 82, 92, to discuss Mo. 76 said issue S. W. [336 1080, ; that, upon remanded, the case the amount 1084] changed jury $25,000 sum, returned a verdict in said and, upon judgment forced remittitur, $17,500. was entered for injuries by appear disabling, sustained do to'be as etc., injuries as -the Manley somewhat similar discussed in v. Wells Messing (Mo.), Dolph Drug 292 69(5), Judge S. v. & W. 67, 322 Co., 18 901, 926(3), (2d) sustaining Mo. S. W. $18,000, respectively; of $15,000 awards -and arid after a-review of bearing directly upon cases inoré or less issué v. St. [Zichler S. W. (2d) 59 Co., 902, 654, Louis Pub. Serv. 916(13), 659(18); Carpenter Ry. 130, 137(3), 71 Wabash 335 Mo. S. W. Co., Ry. 1075(4); 1071, Co., 122, Partello v. Pac. 240 Mo. Missouri 61; City, 32(4), Barr 55, Mo. 22, W. v. Kansas 562, 564(4); 213 Mo. Co., Chlanda v. St. Louis-Transit opinion judgment 253(3)], are of we $12,500. not be excess of should If, days,- within will enter a remittitur therefore, plaintiff, teri permitted $5000, judgment appealed stand for ‘the froiri will entry original $12,500 ,the otherwise, as date of its and of this cause Cooley Westhues, CC., reversed and remanded. concur. adopted foregoing opinion BohliNG, C., PER CURIAM: The ‘ judges All concur. opinion court. .the