*1 i82 through
State’s out simply witnesses he started on a run and went sight during timber. He out of officers time they they followed other side of his tracks. When out on the came walking the timber and on the appellant could see them he was right way railroad and he made no to evade them. effort at appellant Neither does the of Sheriff Pence testimony that the one Douglas years time told him he had known Earl for two or three and at year, another time that had known have him about a enough probative support Indeed, value we do the conviction. not consider very are in view of their contradictory, statements general very nature and year” the fact that “about a is not different from two years.
We think evidence, sup- is too weak to considered as whole port a penitentiary conviction and against sentence as a man good previous character, law, presumptively. Certainly, as a matter of is not every inconsistent with hypothesis appel- reasonable charged. lant’s larceny innocence rather, us it indicates, To that he simply assisting Douglas in disposing hogs. of the stolen Allowing developed facts were either side. possi- bility may produce that the able State additional evidence, be cause is reversed and remanded. All concur. Telegraph Corpo-
Lena Tate Company, The Western Union v. August ration, Moeckli, Appellants. (2d) S. W. 1080. Two, Division December 1934. *2 Ralph Finley appel-' Jones, Hooker, Angert T. Sullivan M lants. *3 Eagleton
Mark Allen, D. Moser & respondent. Marsalek for *4 reassign- upon writer to the FITZSIMMONS, C. This case comes ment. August and Company
Defendants, Telegraph the Western Union $15,000 sum of Moeckli, servant, appeal judgment its in the from a St. Louis. against City of them rendered in Circuit Court of demurrers, assignments overruling of their Their of error are the Plaintiff’s verdict. giving an excessive instruction and the resultant damages cause of shock action was for for electric company injuries defendant telegraph wire of the suffered when a Power Light & high-tension Electric crossed the Union wires of defendant, Whitaker, was Company. demurrer the third The him. plaintiff as to sustained and dismissed the case why the demurrers urge reasons appealing defendants these show that the (1) fails to should have been sustained: The evidence negligence charged. alleged injuries proximate were the result of naturally, antici- (2) reasonably have not, Defendants could un- extraordinary and pated injuries were the result of so which alleged negligence cannot be said to usual an occurrence (3) Plaintiff alone from have been the them. suffered cause of injuries fright physical independent or mental received shock and no bearing fright mental will first the facts shock. We state on summarize evidence grounds, second, the first two we will showing injuries. the nature of her
Plaintiff, Tate, children first Lena lived with her husband and in a floor No. 16 Street, flat at Sarah St. Louis. Sarah Street runs South north and south and the flat is on the east side of the street. On the public alley south side of the flat a which runs from Sarah Street alley eastwardly. shoe Across the from the flat is Brauer Brothers factory, five-story building, a which also fronts on Sarah Street. factory alley flat poles In this between and the shoe is a line 1926, which, Light Electric on on October the Union Power 13,200 Company carrying three currents volts. had or four wires thing bare, being high- These wires were insulation useless morning day On tension lines. of the Mrs. Tate stated kitchen, putting her in the house order. She was the window open yard. and door which each,side the back Iron rails were on steps. She had cleaned kitchen floor with a mop. away mop wet putting reaching She was and was explosive noise, the broom when there was an illumina- brilliant kitchen, singed tion of the and a dash of what seemed flames which face, eyes. her hair At once Mrs. Tate fell to the floor. Plain- *5 explosive “terrific,” tiff being testified that the noise was louder report than shotgun, pistol the of a All or bomb. witnesses who linemen, including heard telegraph company’s noise the the testi- very alley and loud. It drew tbe curious to it was fied that premises. plaintiff's light of an a contact
The of the noise and the brilliant was cause one by company with telegraph wire owned defendant insulated telegraph company had high-tension The power or more wires. neighborhood. in the Sarah Street moved one of its branch offices change message two span iron wire about This made useless a northeasterly in direction long. a hundred feet The stretched wire alley, power over the factory, from roof of the shoe across immediately way wires, yard pole in an plaintiff’s over and to a area plaintiff’s north of premises. longer company message being needed, telegraph wire no Moeckli, in a crew of linemen to take it down. Defendant
sent charge crew, the roof went to one end of the wire on was factory, pole shoe lineman Whitaker climbed the to which while were fastened the other end. Moeckli knew that wires alley taking con- in and that in the wire down of the very dangerous high-voltage tact with the avoided. lines was to be let him it. for Moeckli tes- defendant, But tell Called as a witness! :
tified
“Q. in Now, you engaged and Whitaker were removal Mr. Yes,
of this wire? A. sir. “Q. you removing it, just How were and tell the court what taking steps you building it ? A. to remove I went on the with Whitaker, rope, my rope a cut end of the wire off and tied this and on, get pole pull he was to on the on the and wire other end down . . I up rope . com- keep to hold the wire with the it from ing stuff, I I my this hot when cut arm like and slacked back quite a it, because there was little strain on and when I did slight thought I got shock, that a my and the first came mind just I loose, report was that better let then there was flash and was all little there was to it. The wire fell down right I yard, yard across the tree over in the looked down away anybody see if down alley there was there or nobody or in yard, either, there was there that I could see.” chief, deposition Plaintiff in read defendant her case Moeckli’s in which he testified:
“Q taking any going purpose, rate, up Your at there and Yes, the wire was to avoid contact A. down with those hot wires?
sir.
“Q. purpose avoiding you contact And the was because knew object dropped if an kind on the hot would be there burning explosion you? an Yes, wires didn’t A. sir.” When shock he had Moeckli felt the let the wire slack high acting three feet of the tension lines. He within two or *6 88 when he safety against a more shock allowed
his own or severe further high upon power fall the slip wire to from his hands and to the peril in anyone to there was wires. And. looked see whether testimony His was suf below, only had released wire. after he the jury questions negligence proximate ficient take to the the to of support if there a causal relation between cause also was evidence to place crossing plaintiff’s injury. There no the of the wires and is show intervention here those cases the facts of which negli person injury plaintiff act of a third between of a and the .the Independent Quarry & gence imputed [Kennedy a v. defendant. 475; 316 291 v. Co., 791, Construction Mo. l. c. S. W. Sullivan leading 34 Ry. Co., 1, Ave. Mo. S. W. Even Jefferson 133 566.] 610, City Louis, 620, v. 167 Mo. 67 S. W. ase Fuchs St. c heavily upon presents which defendants lean several elements of which absent Nor persons acts of intervention of third are here. do any pertinency we is see those cases which hold that a defendant negligent complained when been the event of could not have anticipated by ordinary Ely-Walker Co., Bldg. care. v. D. G. [Ward 348, always 248 W. Mo. 154 S. “Due commensurate care 478.] dangers.” Mfg. v. Co., Curtis Co. Mo. [Neal wit|i just 41 W. c. (2d) 543, case, S. l. And in the Neal as 555.] plaintiff unloading cargo helpless work a box car its was at impact too, protect himself from the coupling locomotive, so, of a plaintiff helpless here the in her kitchen protect was herself from dynamically a shock of the most incalculable force known to man. part And due care on the of defendants was commensurate with the peril by gave momentary force to which Moeckli his act freedom. question
Was the evidence sufficient to submit jury to the plaintiff whether received an electric shock aas result of the contact wire with the wire? Plaintiff testified that after she fell to the floor way kitchen she worked her help call lying door to and she saw wires steps on the feet few away. upstairs washing Mrs. neighbor, Tate’s Mrs. Neff,-who was explosion dishes when the occurred and had some of her dishes broken, hurried downstairs and entered Mrs. Tate’s kitchen. Mrs. Neff that lying testified she saw on Mrs. steps wires Tate’s across railing telegraph company’s the iron and that the linemen who standing yard in the cautioned her to avoid the wires. The men of They the crew denied this. testified that the nearest part of the message wire to Mrs. Tate’s door hung was on a yard, tree twenty-five from feet the kitchen door. Where the ends of the mes sage explosion question after wire were course. himself,
Of Moeckli, the shock to in his deposition in evidence, read testified: you got? one
“Q. get from, shock you Where did I cut got off. I have of that A. off must like hot stuff see this “Q. A. sir. You Yes, dead wire? This grounded, I roof, was standing in water on this 13,200, I through air strong jump will when it is that and this hot stuff case. ground, happened that is what *7 jumping in its 13,200 “Q. words, volts is sufficient In other this ground? high a eight feet to jump will seven or propensities that it Yes, A. sir.
“Q. Yes, A. through air? sir. Comes the the “Q. jumps ground, it follow follow, will once to the And it Yes, ground? A. sir. course of end of the that to the standing is water, “Q. you end And at the other and were right? A. sir.” Yes, that away from
Whitaker, pole the lineman the two hundred feet on just before the roof, Moeckli on the received a shock about a second his slight explosion. flash which burned and He called it a shock fingers pole a him fall from the or to little bit but did not cause to cross-examination, any quit But, suffer or to work. on inconvenience 1926, shortly after deposition gave he admitted that in a which he his accident, dizzy, the he testified that shock made him burned the touching although finger, index affected his stomach he was not and mesage shock fact the wire at the time. ascribed the to the He breaking that the pole was wet. There had been record rains standing days though Moeckli, before the accident. But that be clinging water on the roof a wet received pole and Whitaker secondary message or minor within shocks when the wire came two power or three feet hold line, of the defendants would have us to plaintiff, standing floor, as matter law a that on a wet did not by could not have received a shock reason the actual the contact of message high-tension wire with the In opinion wires. our question jury. a message
We take notice the fact that the wire-would not divert power the current from its normal course unless wire the while touching power “ground” the had a line or ultimate earth connec- good through conductors, tion message unless the or wire contacted at the same power time two or more of the wires. The did not current message through seek to pole reach the earth wire to the to which clinging slight Whitaker was because received but shock explosion that before the and blaze. It is a reasonable inference way, therefore is, through current went the other that dropped. end of the which Moeckli wire It is also an inference which' jury might with reason draw that when Moeckli dropped wire, his swung end of it either contacted the iron rails enough plaintiff’s porch or near railing came to for the current jump, power burning while the message wires had Moeckli dangling end which from distance pieces some
two dis- conflicting or measurements marshal need not dropped. We back plaintiff’s enough say It positions. tances and relative twenty- of the very the north side close to porch was next to and alley of the along north side power ran alley. The lines foot position was high. message fixed wire in its forty The about feet Moeckli When lines. right angles to the approximately at roof alley side of the south dropped wire, he was on the alley just across power lines factory above the of the shoe carry message wire was made to The plaintiff’s porch. from volts, Moeckli on electricity. 13,200 When it contacted volts of waited pole explosion. Whitaker on the roof and heard an saw flames whether that he could see smoke to clear so half a minute for the defend- expert capable electrical whom very Moeckli survived. electricity with travels produced as witness testified ants say it was for the light. circumstances speed of In these alley north side dangling over the wire, whether the twenty voltage electricity one hundred and charged with a A in- porch. measureable plaintiff’s capacity times contacted its *8 and, wire, burning message during passed of terval of time 186,000 per electricity light velocity of miles with period, in that damage. go much second could far and do that, if even testimony to the effect Defendant offered steps, plaintiff’s back charged current, were wire, with expert testified Plaintiff’s kitchen not be shocked. she her could condi generally wet that, kitchen and the in view of the moist floor It resulting days rain could be shocked. preceding from of she tions possibilities law, declare, is a matter of what are not for us to as say. large, so electricity and at to high-voltage of when unchained v. Chittick in the case of facts in differ from those The this case 22 L. R. A. 13, 4, 224 Pa. 73 Rapid Co., Transit Atl. Philadelphia dogmatic in the field (N. S.) hesitate be as 1073. And we would to Supreme electricity Court especially of as the physical of science Pennsylvania case. that of rightly said, that trial court From what we have we conclude suffer alone demurrer, provided plaintiff that did not overruled testimony and of plaintiff of fright shock. The from and mental question jury whether make it a physicians was sufficient to against we decide plaintiff electrical shock. Therefore received an assignment of error. defendants their first assigns plaintiff’s to telegraph company error I. Defendant against it defendant the that raises for-the reason main instruction negligence indulged general is negligence which presumption of hypothetical recitals then pertinent made cases. The instruction under the here- you circumstances instructs that added: “The court
91 defend- find, presumes law that said detailed, yon if so inbefore fall to negligence in its wire guilty permitting ant was wires, you so high or if do with said tension come in contact by prove upon the defendant burden is east find, and the it was fact weight the evidence the greater preponderance of or under you and in connection are instructed negligent, not duty you find, detailed, if so herein circumstances the. while practicable highest degree care defendant exercise the said mentioned, hereinbefore handling under the circumstances its wires negli- degree such would constitute exercise of care failure to ’’ gence. ipsa res in Missouri that the doctrine of is well settled law apply where loquitur general negligence rule —does —the alleged negligence recovery upon specific acts of
plaintiff bases his negligence general charging terms. petition in his instead of Light 637, 271 Co., 607, 307 l. c. Water, Transit Mo. v. [Kuhlman negligence pleaded is but though general S. W. And even 788.] negligence, he is not entitled plaintiff gives specific acts of evidence of de presumption which an instruction submits to the Ry. Co., 294 negligence. Pacific S. W. fendant’s v. Missouri [Allen injured col by or 80, passengers, l. c. derailments Cases of 87.] (Chlanda Transit v. St. lisions of cars of common carriers Louis Ry. Metropolitan Co., 244, 249; 213 W. Street Mo. 112 S. Price v. by 119 crushed
Co., 435, 932), persons Mo. S. W. cases of 1053; 395, 195 W. falling objects McGee, App. 196 Mo. S. (Duffy v. 1091) Co., App. Piano Mo. 227 S. W.
Kean v. Smith-Reis negligence. general the law of One reason for the are favorites of injury common all cases from an rule these is results any event, which, one, peculiarly unusual if known is the cause of beyond ken plaintiff. within the mind of defendant and just explain, can, defendant if the cause of It is therefore that negligence legal presumption the accident. Hence the which de *9 flight. falling put passenger must to if in a fendant But case or object ease, pleads gives plaintiff tending prove either or to evidence specific negligence, presumption. benefit of the he is not entitled to the case, in opinion that, plaintiff instant was
We are of the not entitled under her an instruction which the pleadings or evidence to told jury hypothecated presumes the law under certain facts that the negligent. third telegraph company defendant was Plaintiff’s upon which petition charged amended she went to that the the engaged telegraph company defendant in trans- the business of mitting messages by wire, possessed and owned and the wire of which frequent we made have mention and that defendants Moeckli and employ company Whitaker were the of defendant as linemen. the petition alleged 1, 1926, plain- further “that on or about October tiff the kitchen of her home at South Sarah in the Street her immediately in rear of and that the Missouri,
city Louis, of St. removing close engaged in a wire located residence defendants doing defendants home, and that while so plaintiff’s aforesaid permitted their said wire negligently caused and carelessly and wires, carrying high-tension wire fall come in contact with a or and dangerous electricity causing explosion an deadly current of and terrifying smoke extremely report, and and flames and and an loud close upon premises fall said emitted, be said wire did plaintiff, plain- of which caused dangerous proximity all to the injured, particu- as hereinafter thrown, tiff to be shocked and more larly alleged, directly proximately all which resulted from of joint negligence all the of of the defendants.” and concurrent allegation petition specific in its of It seems to us that this was as negligence simplicity permitted act carelessness or as the of the of required. question any point, if be doubt this of But there on no specific testimony only of Moeckli’s nature can be raised. The given concerning plaintiff crossing evidence of the behalf of In deposition part wires was the Moeckli. of deposition, quoted, which Moeckli upon we have stated that he went roof factory; of the shoe he one there cut end the wire and he rope end; either tied or intended tie a to that that he allowed sag the wire high- until it came within two three feet or of the slight wires; tention that he then felt a shock due to the attraction through electricity power the air from message wires to the thereupon dropped message wire and that he wire. Moeckli’s deposition very makes it clear that he released the wire order to save himself from a inore shock severe at the time power that he released wire he knew that the wires were in the alley In plan tailing below. fact the whole down of the mes- sage predicated upon wire was avoidance contact between lines. wire and the Moeckli was the man in charge of the execution plan who, of this and was man for safety, his own as thought, dropped contrary to the plan of safe action. In appear these circumstances there does any to be room place or application ipsa doctrine loquitur. of res Therefore given plaintiff instruction on behalf of was prejudicially er- roneous. In this view case it will necessary not be for us to discuss question of the size the verdict. II. For the reason that the trial giving court erred in plaintiff’s instruction, judgment
main is reversed and the cause is remanded. Cooley Wesfhues, CC., concur.
93 PER foregoing opinion CURIAM:—Tbe is by Fitzsimmons, C., adopted opinion as tbe tbe court. All the judges in result concur expressed concurring opinion Tipton, as J., filed herewith. (concurring). J. TIPTON, agree with do tbe reason as- —I signed bolding for tbe plaintiff’s main instruction But erroneous.
I do assigned believe instruction is for erroneous reasons tbe tbe McCloskey Koplar, 557, case of v. 329 Mo. 46 527, (2d) S. W. note,
92 A. L. and, R. therefore, I concur in tbe result reached.
ElUson, J., J., P. Leedy, concur. Drainage Corporation, John Levee and Missouri,
St. District Pillman, Stanley Stanley M. Pillman Appellant, v. M. Mrs. Drainage Wife; Trustees; W. S. Edwards, District h W. Corporation. No. S. County, New Madrid (2d) 1095. Two, 1, 1934. Division December appellant. Paynes Sharp