JOHN P. THOMPSON v. CITY OF LAMAR, Appellant.
17 S. W. (2d) 960
Division One
March 29, 1929
It seems to be conceded that plaintiff has the right to bring and maintain this action in its own name, as subrogee, if maintainable by the Construction Company.
For the reasons indicated in the foregoing, we are of the opinion that plaintiff‘s evidence made a case for the jury. The judgment of the trial court is accordingly reversed, and the cause remanded. All concur.
Plaintiff was injured on August 16, 1922, between 7:30 and eight o‘clock in the morning, while engaged in repairing the roof of a building, in the city of Lamar, owned by one J. S. Campbell, and used as a warehouse in connection with a broom factory operated by said Campbell. Plaintiff was injured by coming in contact with the uninsulated wires of an electric lighting and power line, or system, owned and operated by the defendant municipality, and used to conduct the electrical current from the electrical plant owned by said city, to the consumers thereof in said city, and to the broom factory of said Campbell.
“Plaintiff says that the roof of said building, at the eaves on the south side thereof, was about fifteen feet from the ground, and that sometime after plaintiff was struck by said wires, as aforesaid, he regained consciousness, and found himself lying on the ground just south of said building, where he had fallen or rolled off of said roof in his unconscious condition.
“Plaintiff says that his injuries as hereinafter set forth were due to, and occasioned, solely by the negligence of the defendant in keeping and maintaining said wires carrying an electric current of high and dangerous voltage in close proximity to said warehouse building and the roof thereof, and in so stringing said wires on said pole as to cause said wires to pull said pole to the north, thus pulling said wires over the roof of said building, and in using wires carrying a current of electricity of high and dangerous voltage without any insulation whatsoever covering said wires, and in allowing said wires to become loose and sagging so as to sway with varying winds.”
The answer admits that defendant is a city of the fourth class under the laws of this State, and is, and was at all times mentioned in the petition, the owner of an electrical lighting and power plant and system, operated by defendant, and of the poles, lines and wires used by the said city to conduct and carry currents of electricity to the consumers thereof in said city, which plant and system was a combined waterworks and electrical light and power plant, owned and operated for the use and benefit of said city and its inhabitants, and using the same engines, boilers and equipment to furnish water, light and power for all the various uses and purposes which such a city and its inhabitants would have, including fire protection, the flushing of sewers and gutters, lighting streets and other public places, and for all usual requirements of home and business; wherefore, if plaintiff was injured, as alleged in the petition, on any of the wires, or other equipment, belonging to defendant, such wires and equipment were then and there a necessary part of such combined waterworks and electrical light and power plant and system, and therefore defendant is not liable in damages for injuries caused thereby, because of the provisions of Sections 9111, 9119 and 9121, of the
The reply is a general denial.
It was admitted by defendant, on the trial of the action, that the wires in question were uninsulated and had never been insulated. The uncontroverted evidence was that the wires were known as No. 9 wires, and that they carried an electrical current of 2300 volts, which, according to the testimony of one of defendant‘s witnesses,
The evidence of defendant tended to show that a guy wire was fastened to the pole at the time of its erection, and that no changes
Other than plaintiff, there was no eyewitness of plaintiff‘s injury, or the manner of his injury. Plaintiff testified, on direct examination: “I was doing some work for J. S. Campbell, or the Lamar Broom Works, some repairing on his buildings down there; I began on the 14th of August repairing the rubberoid roofing on the main (factory) building, and, as soon as I got that repaired, I painted that during the balance of that day and the next day and a few minutes on the morning of the 16th, and, as soon as I got that work done, I immediately took my ladder that I was using to climb up and down, and moved over to what is known as his warehouse, west of the office across the street. We climbed upon that [warehouse] building, by placing the ladder at the southeast corner of the building, and examined the entire roof of that building. . . . The first thing I did was to drive a few regular rubberoid roofing nails along the eave of the building where they were loose and some of them were entirely out, and I was replacing them with new nails. And when I got to the southwest corner I stepped to the seam above, which would probably be a matter—well, one width of rubberoid—I don‘t know
Several employees of the broom factory testified as witnesses on behalf of plaintiff. Their testimony tended to corroborate plaintiff as to the condition and location of the pole nearest the warehouse building, and of the wires attached to, and leading from, said pole; that two of said wires passed across and above the southwest corner of the roof of the warehouse building, and that the wires were sagging; that the eave of the roof of the warehouse building was about sixteen or seventeen feet above the level of the ground; and that there was a south breeze blowing on the morning of plaintiff‘s injury. They testified further that they heard, or saw, the wires leading to the factory building shake violently, which attracted their attention, and, upon investigating, they saw plaintiff lying upon the ground about five or six feet from the southwest corner of the warehouse building, and beckoning to them to come to his aid.
Plaintiff was very severely and seriously injured. His injuries consisted of a number of electrical burns on the body, limbs and fingers of the hands, and both legs were broken. He suffered a very
Plaintiff was sixty years of age at the time of his injury, and weighed about 180 pounds, and, at the time of trial, he weighed ten pounds less. He had emjoyed good health prior to his injury, and had been earning from $3 to $5 a day. Plaintiff, and several of his family, testified that he had never suffered from dizziness or fainting spells. Plaintiff‘s physicians expressed the opinion that plaintiff will be permanently crippled as the result of his injuries.
I. The appellant municipality assigns error in the refusal of the trial court to sustain a demurrer to the evidence, requested at the close of all the evidence. Appellant urges that any city, town or village in the State is relieved and exempted from actionable liability for negligence in the operation of an electric light and power plant, or system, by Article 28 (Sections 9079 to 9122, inclusive) of the
Appellant argues that the intent of the General Assembly, in repealing the former section of the statute, and in enacting in lieu thereof the new Section 9111,
Notwithstanding the fact that municipally owned and operated electric light and power plants are deemed to be operated for the benefit of the public, and for the public welfare, as argued by the appellant herein, nevertheless this court has expressly held that “cities undertaking to run [i. e., operate] the lighting business must assume the same responsibilities as private persons and private corporations running [operating) like plants.” [Riley v. City of Independence, 258 Mo. 671, 681.] We find no clear or certain evidence of legislative intent, in the several sections of the statute relied upon by appellant, that a city operating an electric light and power plant and system is exempted from actionable liability for negligence in the operation of such a plant and system, and hence, under our ruling in the Riley case, supra, the appellant must be held to the same responsibilities, and to the same actionable liability for negligence, as individuals and private corporations operating like electric plants and systems. A municipality, in the exercise of its corporate powers, acts in a dual capacity; on the one hand, it acts in a sovereign, or governmental, capacity, for which it may not be called to respond in damages in a
Appellant insists that the testimony of plaintiff convicts him of contributory negligence as a matter of law, and, furthermore, that, according to plaintiff‘s own testimony, the danger of injury from the uninsulated and slack electric wires was so obviously glaring and imminent that plaintiff must be held to have assumed the risk of injury as a matter of law; hence, appellant urges that the demurrer to the evidence should have been sustained by the trial court upon each of those grounds. Ordinarily, the term “assumption of risk” is applied to the relation of master and servant, and is referable to a contract of employment, either express or implied, by which the servant agrees with his master that the dangers ordinarily or obviously incident to the discharge of his duty in the particular employment shall be at his own risk. No such relation existed between the plaintiff and the defendant herein, for plaintiff was not in the employ of defendant, but of Campbell, the owner of the warehouse building. But, regardless of whether the defense of assumption of risk is properly applicable herein, such defense is so closely akin to that of contributory negligence that we will consider and treat the two defenses together, as constituting the single defense of contributory negligence.
Appellant, in contending that plaintiff‘s own testimony convicts him of contributory negligence, as a matter of law, barring his recovery for the injuries sustained, cites a number of decisions of this court, and of the several courts of appeals, as supporting such contention. We have carefully considered and analyzed all of the decisions cited, and we find them to be distinguishable upon the evidentiary facts from the case at bar. Several of the cases thus cited are more favorable to respondent than to appellant, in that the appellate court held therein that the question of contributory negligence was one of fact for the determination of a jury. Among the several cases cited by appellant, perhaps the most favorable to appellant‘s contention are Morris v. Light & Power Co., 302 Mo. 475, and Gray v. Light & Power Co. (St. L. C. A.), 282 S. W. 490. The Morris case, supra, was decided by this court, en banc, by a four-to-three vote of its then membership. The majority of this court denied the plaintiff a recovery for his injuries upon the ground that plaintiff‘s own evidence convicted him of contributory negligence as a
In the instant case, while it is true that plaintiff‘s own testimony indicates that he knew that the wires were bare and uninsulated, and that the pole which supported them leaned or swayed toward the corner of the warehouse building, thereby throwing the wires over and across the corner of the building, and that the wires were loose and sagging and “swinging a little,” yet he testified that he was endeavoring at all times in his work to keep at a safe distance from the wires and to avoid coming in contact with them. Plaintiff had the right to be at work upon the roof of the warehouse building and in close proximity to the wires. While, in the course of his work, he stood erect, according to his testimony, for as much as a minute, or more, facing the wires, in order to “see the condition of things,” and to see “what effect the wind would have on the swinging wires,” he says that he stood at a distance of eighteen inches, or more, from the wires, where he “felt sure everything was perfectly safe.” While it well may be assumed that plaintiff, who apparently is a man of mature years and of average intelligence, knew and appreciated the danger of coming in actual contact with the uninsulated wires if they were carrying a high voltage of electrical current, yet we cannot properly assume from his own testimony, or from any other evidence in the record before us, that plaintiff knew, or reasonably should have known, that the wind was likely to blow the wires across the intervening space of eighteen inches and into contact with his body, or that he fully appreciated the danger of the wind blowing the wires across the intervening space and against his body; nor can it well be said, we think, that the danger of the wind blowing the wires eighteen inches, or more, against the body of plaintiff was so obviously glaring and imminent that plaintiff must be held to be conclusively chargeable with full knowledge and appreciation of such danger. We are of the opinion that plaintiff cannot be held to have been guilty of contributory negligence as a matter of law, but that the question of his contributory negligence was one of fact, which was properly submissible to, and determinable by, a jury. [Smith v. Railway, Light, Heat & Power Co., 310 Mo. 469; Choka v. Railway, Light, Heat & Power Co., 303 Mo. 132; Hill v. Electric Light & Power Co., 260 Mo. 43; Geismann v. Electric Co., 173 Mo. 654; Hollis v. Light & Power Co., 204 Mo. App. 297; Winkelman v. Electric Light Co., 110 Mo. App. 184; Sprinkles v. Utilities Co. (Mo. App.), 183 S. W. 1072; Sanders v. City of Carthage (Mo. App.), 9 S. W. (2d) 813.]
Appellant insists, furthermore, that the evidence does not show whether the wires blew against plaintiff, or whether he became dizzy or faint from the heat of the August morning, while he was working on the flat rubberoid roof under the direct rays of the summer sun, and toppled against the wires; and
In the present case, however, it cannot be gainsaid that plaintiff came in contact with defendant‘s electric wires, for he bore upon his body some six or seven electrical burns, indisputable evidence of contact with the wires, which, according to the uncontroverted evidence, were the only wires in proximity to the place where plaintiff was injured. On the other hand, there is not a scintilla of evidence that plaintiff was overcome by the heat, or that he became dizzy and faint, and toppled into the wires. While appellant‘s superintendent testified that “he had a conversation with the plaintiff‘s son, Bob Thompson, in which he said that his father must have become dizzy or unbalanced and fallen into the wires,” yet the plaintiff‘s son, Robert Thompson, testified that he remembered no such conversation. Plaintiff, and the several members of his family, all testified quite positively that plaintiff had never suffered from dizziness or fainting spells.
Lastly, it is urged by appellant that the demurrer to the evidence should have been sustained because the plaintiff‘s evidence is contrary to physical law in that it was physically impossible for two of defendant‘s wires to have been blown by the wind against plaintiff at the same instant of time. However, it requires an extraordinary case to authorize the court to regard sworn testimony as manifestly impossible and untrue, and this court has ruled, in effect, that the testimony of a witness may be rejected upon the legal conclusion that such testimony is opposed to physical law only when such legal conclusion is so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other conclusion. [Kibble v. Railroad Co., 285 Mo. 603, 618; Schupback v. Meshevsky (Mo. Sup.), 300 S. W. 465, 467, and cases there cited.] The testimony in the instant case is not such that we can conclusively or positively say with certitude, from our own experience
We think the cause was properly submissible to the jury upon the pleadings and under the evidence educed, and that the learned trial court rightly denied the demurrer to the evidence, interposed by the defendant and appellant at the close of all the evidence.
II. Appellant assigns error in the giving and refusal of certain instructions. Complaint is made against plaintiff‘s given Instruction 1, which reads:
“The court instructs the jury that if you shall find and believe from the evidence that on and prior to the 16th day of August, 1922, certain electric wires of defendant, carrying a high and dangerous current of electricity, passed over and a short distance above the roof of a certain warehouse of J. S. Campbell and that the roof of said warehouse was a place where persons might reasonably be expected to be for the purpose of making repairs on such roof or for other lawful purposes, then it was the duty of the defendant to keep said wires so stretched as to make them taut so that they would not sag or sway in the wind and to keep said wires so insulated or otherwise protected as to prevent injury to persons coming in contact therewith, and to keep said wires at such a distance that workmen on such roof, or others lawfully thereon, would not be liable to come in contact with said wires; and if you shall further find from the evidence that said wires were loose and sagging or were wholly uninsulated and so passed over the roof of said warehouse that workmen, or other persons lawfully on said roof, might come in contact therewith; and that plaintiff, on said 16th day of August, 1922, was in the employ of said Campbell, engaged in repairing the roof of said building and, by reason of such employment, was required to be and work near where said wires passed over and above the roof of said building; and that there was then passing through said wires an electric current of high and dangerous voltage; and that defendant knew, or by the exercise of ordinary care on its part could have known, of such condition of said wires in time to have remedied such condition before the injuries to plaintiff, if any, shown in evidence, occurred; and that said wires came in contact with or were blown against the body and limbs of plaintiff while he was in the exercise of ordinary care for his own safety; and as a result thereof the electric current passing through said wires was transmitted to the body and limbs of plaintiff and that he thereby received an electric shock and severe burns, and was thereby rendered unconscious; and that as a direct result of such electric shock and burns,
if any, he was precipitated or fell to the ground below and thereby sustained other injuries; then your verdict will be for the plaintiff.”
The said instruction is criticised because it does not require the jury to find that the hypothesized acts or omissions of defendant constituted negligence on its part; wherefore, it is claimed by the appellant that the giving of the instruction, which presented plaintiff‘s theory of recovery and purported to cover the whole case, and which furthermore authorized and directed a verdict, was reversible error. Appellant has cited a number of decisions of this court, and of the several courts of appeals, which hold that it is prejudicial and reversible error for a plaintiff to submit his case by an instruction which authorizes and directs a verdict upon hypothesized acts or omissions of the defendant without requiring the jury to find that the hypothesized acts or omissions were negligently done, or were negligently omitted to be done, by defendant, and that such an erroneous instruction is not aided, or cured, by other instructions given in the case. But a close reading and analysis of the cited cases discloses that, in each and all of said cases, the hypothesized acts or omissions of defendant did not conclusively constitute negligence on the part of defendant, as a matter of law, but whether defendant was negligent as respecting the hypothesized acts or omissions was a question of fact, determinable by the finding of a jury. The cases thus cited by appellant are these: Hall v. Coal & Coke Co., 260 Mo. 362; State ex rel. v. Ellison, 272 Mo. 571; Lukaminski v. American Steel Foundries, 162 Mo. App. 631; Greenstein v. Iron & Foundry Co. (Mo. App.), 178 S. W. 1179; Cross v. Coal Co. (Mo. App.), 186 S. W. 528; Clark v. Long (Mo. App.), 196 S. W. 409; Ratliff v. Power Co. (Mo. App.), 203 S. W. 232.
The rule announced and applied in the afore-cited cases, however, has no application to the present case, for the reason that, if the jury found (as they did) the existence of the acts or omissions of defendant hypothesized in plaintiff‘s Instruction No. 1, then, under the decisions of this court, and of the courts of appeals, defendant was guilty of negligence per se, or as a matter of law and not of fact, and it would have been wholly useless and unnecessary for the jury to have been required to find that such hypothesized acts or omissions constituted negligence on the part of defendant, entitling plaintiff to a recovery. [Geismann v. Electric Co., 173 Mo. 654, 678; Von Trebra v. Gaslight Co., 209 Mo. 648, 659; Clark v. Railway Co., 234 Mo. 396, 432; Hill v. Light & Power Co., 260 Mo. 43, 78; Williams v. Gas & Electric Co., 274 Mo. 1, 8; Godfrey v. Light & Power Co., 299 Mo. 472, 485; Choka v. Light, Heat & Power Co., 303 Mo. 132, 144; Shannon v. Light & Power Co., 315 Mo. 1136, 1150; Trout v. Gaslight Co., 151 Mo. App. 207, 221; Sprinkles v. Utilities Co. (Mo. App.), 183 S. W. 1072, 1076; Grady v. Light, Power & Traction Co. (Mo. App.), 253 S. W. 202, 204; Lofty v. Construction Co. (Mo. App.), 256 S. W. 83, 87; Sanders v. City of Carthage (Mo. App.), 9 S. W. (2d) 813, 816.]
In the Geismann case, supra, which is the corner-stone of the law on the subject in this jurisdiction, and which is the foundation of the later rulings that an electric light and power corporation, whether private or municipal, is chargeable with negligence per se in maintaining uninsulated, or defectively insulated wires, at a place where it has reason to anticipate that persons may lawfully and rightfully be, and where such persons may likely come in contact with its wires, we said (173 Mo. l. c. 674, et seq.): “Electricity is one of the most dangerous agencies ever discovered by human science, and owing to that fact it was the duty of the electric light company to use every protection which was accessible to insulate its wires at all points where people have the right to go, and to use the utmost care to keep them so; and for personal injuries to a person in a place where he has a right to be without negligence upon his part contributing directly thereto, it is liable in damages. [McLaughlin v. Louisville Electric Light Co., 100 Ky. 173.] The deceased was, at the time he received the shock which caused his death, in a place where his duty required him to be, and it was the duty of the defendant in the exercise of even ordinary care and foresight to know that sign-hangers, painters, carpenters and other mechanics would be required, as occasion might require of them in the pursuit of their respective occupations, to come in proximity to its wires constructed and maintained on the signs and cornice in front of the building where the accident occurred. [Citing cases.] . . . It follows from these authorities that it was defendant‘s duty, in the first place, to use every protection which was reasonably accessible to insulate its wires at the point of contact or injury in this case, and to use the utmost care to keep them so, and the fact of the death of Geismann is conclusive proof of the defect of the insulation and negligence of the defendant, and as to whether he was guilty of contributory negligence or not was a question for the jury.” (Italics ours.)
And in the later Choka case, supra, we said (303 Mo. l. c. 144): “The wires were placed in and around the mill company‘s building and upon its property. Defendant, when it placed those poles, cross-arms, and wire constructions, was bound to anticipate that at some time work would have to be done upon and around that building, and in the neighborhood of these wires, poles and cross-arms. The very cross-arm upon which the ladder was placed was attached to the building as well as the pole. Its use by workmen must have been anticipated. [Citing cases.] . . . Deceased had the right to be in and around the building in the performance of his work, and defendant was obligated to anticipate that workmen at some time would
The distinction between those cases wherein the hypothesized acts or omissions of a defendant constitute negligence as a matter of law and those wherein such hypothesized acts or omissions of defendant may, or may not, constitute negligence, according as such may be found as an issuable fact by a jury, is readily recognized and clearly expressed by TRIMBLE, J., speaking for the Kansas City Court of Appeals, in Ratliff v. Power Co., 203 S. W. l. c. 235, as follows: “It is true that in a number of cases it is said the fact of the electric shock is conclusive proof of the defect in the insulation and of the negligence of defendant (Geismann v. Electric Co., 173 Mo. l. c. 678), or that it will be conclusively presumed that the insulation of the wire was defective. [Von Trebra v. Gaslight Co., 209 Mo. 648, 659; Sprinkles v. Public Utilities Co., 183 S. W. 1072; Trout v. Gaslight Co., 151 Mo. App. 207; Clark v. Railway Co., 234 Mo. 419.] But in all such cases the wires were so close to where the electric company had reason to believe persons would lawfully go, that the injured party would necessarily come into personal bodily contact with them, and, of course, in such instances, where the wires were likely to be touched by the body of one coming near them, the electric company was clearly negligent in placing them there, and the fact that the insulation failed to protect and an injury resulted conclusively showed negligence.” (Italics ours.)
The pleaded and proven facts in the instant case, which facts are hypothesized in the plaintiff‘s criticised Instruction No. 1, clearly bring the instant case within the category of the cases referred to in Judge TRIMBLE‘S opinion, just quoted, and within the category of the many cases (following the Geismann case, supra) hereinabove cited. The hypothesized facts, required by plaintiff‘s Instruction 1 to be found by the jury, constituted negligence per se, or as a matter of law, on the part of defendant, and no harm was, or could have been, occasioned to defendant because the trial court did not require and instruct the jury to separately find that those facts constituted negligence. An additional and separate finding by the jury that such hypothesized acts or omissions of defendant constituted negligence would add nothing to what the law itself declares such hypothesized acts or omissions of defendant to be — namely, negligence per se. Hence, the criticism leveled against the instruction is not well grounded under the pleaded and established facts in the present case. [Drew v. Railway Co. (Mo. App.), 293 S. W. 468, 471; State ex rel. v. Ellison (Mo. Sup.), 208 S. W. 443.]
Appellant complains of that portion of plaintiff‘s Instruction 1 which told the jury that “it was the duty of the defendant to keep
Appellant furthermore urges that plaintiff‘s Instruction No. 1 makes defendant an insurer of the safety of plaintiff, whereas, under
It is also urged that said instruction is erroneous because it wholly fails to require the jury to find that the hypothesized acts or omissions of defendant were the proximate cause of plaintiff‘s injury. While appellant concedes that the instruction requires a finding by the jury that “said wires came in contact with the body and limbs of plaintiff . . . and as a result thereof the electric current passing through said wires was transmitted to the body and limbs of plaintiff, and that he thereby received an electric shock and severe burns, and was thereby rendered unconscious, and that as a direct result of such electric shock and burns, if any, he was precipitated or fell to the ground below and thereby sustained other injuries,” yet appellant says that “the hiatus of proximate cause of the contact itself is nowhere supplied.” A like criticism was leveled against an instruction, and ruled adversely by this court, en banc, in State ex rel. v. Ellison, 208 S. W. 443, 444, wherein we held that, “by submitting seriatim (and requiring an adverse ruling as to defendants) all of the elements essential to show that the unlighted and negligently placed pile of bricks was the ‘efficient’ cause of the injury to plaintiff‘s wife, the jury were necessarily required to find that her injury was the ‘proximate’ result of defendants’ negligent failure to guard, by a warning light, the dangerous obstruction in the street.” The criticism made against the instruction is not well grounded.
Lastly, it is urged by appellant that plaintiff‘s Instruction No. 1 is broader than the petition, in that the petition alleges that “a sudden gust of wind came from the southwest and suddenly whipped said wires against plaintiff‘s body and limbs,” whereas said instruction calls for the finding of the jury that “said wires came in contact with or were blown against the body and limbs of plaintiff.” Manifestly, the ground of criticism urged does not constitute reversible error, for the obvious reason that the substantive and basic fact of liability, or act of negligence, pleaded in the petition was the use by defendant of “wires carrying a current of electricity of high and dangerous voltage without any insulation whatsoever covering said wires, and in allowing said wires to become
Appellant assigns error in the giving of plaintiff‘s Instruction No. 2, on the measure of damages. The instruction told the jury that they might take into consideration in assessing plaintiff‘s damages “nursing and care” on account of his injuries, whereas the petition prays recovery only for “nursing” (omitting the word “care“) as an element of damage. We regard the criticism as hypercritical to the extreme. The words “nursing” and “care,” in their common and ordinary use and acceptation, are synonymous, and are frequently and ordinarily used together in instructions on the measure of damages. We think the jury were not misled thereby, and that they were not led to believe that they might make an additional award of damage for “care,” as distinguished from “nursing.”
It is also claimed that the instruction was prejudicial and harmful to defendant in that it suggested or invited the jury to return a large and excessive verdict, because it told the jury they might assess plaintiff‘s damages at such sum as, in their judgment under all the evidence in the case, will compensate him for the injuries received, “not exceeding the sum of $25,000,” which is the maximum amount of recovery prayed in the petition. Without approving the giving of instructions on the measure of damages which include a clause limiting the amount of recovery to that prayed in the petition, and while appreciating that the giving of such an instruction may possibly be harmful in some instances, nevertheless we do not find that this court has ruled the giving of such an instruction to be reversible error; on the other hand, where the giving of an instruction in such form has been followed by an excessive verdict, we have been inclined to follow old precedents by declaring that the error can be cured by forced remittitur. [Bond v. Railway Co., 315 Mo. 987, 1007.] We cannot
Appellant claims that the giving of plaintiff‘s Instruction No. 5, which told the jury that “it was the duty of the defendant to protect its wires carrying a powerful and dangerous current of electricity by insulation, or otherwise, and to use a very high degree of care to keep such insulation or protection of such wires in such condition and repair as to make them reasonably safe to those who, in the performance of their duties, might be brought into contact with them,” and that a failure to exercise such care constituted negligence, is reversible error because it made the insulation of the wires an absolute duty of defendant, and thereby made defendant an insurer of the safety of the wires. The claim of error must be denied for the same reasons upon which we have denied a like claim of error in the giving of plaintiff‘s Instruction No. 1.
Error is assigned in the refusal of defendant‘s Instruction No. 4, which sought to submit the issue of plaintiff‘s assumption of the risk. As we have heretofore said, the issue of assumption of risk is ordinarily and peculiarly referable to the relation of master and servant, and is based upon contract, express or implied. We deem such issue inapplicable to the present case, for no relation of master and servant, or other contractual relation, existed between plaintiff and defendant city. The instructions given on behalf of both plaintiff and defendant fairly and fully submitted the issue of plaintiff‘s contributory negligence, and no harm or error was committed by the trial court in refusing defendant‘s instruction on the issue of assumed risk.
III. Error is assigned in the admission of certain testimony on behalf of plaintiff. Plaintiff‘s son, Robert Thompson, had testified that he was an alderman of the defendant city, and that he had previously worked for the defendant city as an employee in the electric light and power department of the municipality for a period of one year, and had personally assisted in the erection of the pole, cross-arms and electric wires which had occasioned plaintiff‘s injury. He was
Plaintiff‘s daughter testified as to the nature and extent of her father‘s injuries, and as to what she did in the way of nursing and caring for her father for several months while he was confined to the hospital and to his home. Much, if not most, of such testimony was given without objection from the defendant. The testimony was properly admissible, we think, for the purpose of showing the nature and extent of plaintiff‘s injuries, and his pain and suffering therefrom. As a general rule, if testimony is properly admissible for one purpose it cannot be excluded upon the ground that it may not be properly admissible for another purpose. If defendant believed that the testimony should have been limited in its application and effect, it was defendant‘s duty to have requested the giving of an instruction limiting the application of such testimony, which defendant did not do. [Cazzell v. Schofield (Mo. Sup.), 8 S. W. (2d) 580, 590; Sotebier v. Transit Co., 203 Mo. 702, 721; Standard Milling Co. v. Transit Co., 122 Mo. 258, 273Cazzell v. Schofield (Mo. Sup.), 8 S. W. (2d) 580, 590, and cases there cited.]
V. Finally, it is urged that appellant should have been granted a new trial of the action because the verdict of the jury was a “quotient” verdict. The clerk of the trial court testified as a witness, in support of defendant‘s motion for new trial, that he was present in the court room when the jury returned their verdict, and, after the jury had handed the verdict, and the papers attached to it, to the judge of the court, the judge handed them to the witness and he attached them to the rolls in the case. Thereupon the witness identified the verdict, and nine pages of foolscap paper purporting to have been attached thereto, as being the papers handed to him by the judge of the trial court, and as being the papers attached by him to the rolls in the case. These ten pages of foolscap paper were offered in evidence by appellant. The first page consisted of the verdict of the jury, which was in proper form and was duly signed and authenticated by the foreman of the jury. The second page was blank. The third page had written thereon the words: “We the jury find the issue for the defendants.” (Italics ours.) This writing was unsigned. The fourth page was blank. The fifth page bore the addition of the three numerals 15, 10 and 5, making the aggregate sum of 30. The sixth, seventh, eighth and ninth pages were blank. The tenth page had written thereon the following:
“Plaintiff Defendant”
“1111 111”
Below the foregoing was the mathematical calculation, or addition, of twelve numerals, aggregating 117,500, divided by the divisor 12, leaving the quotient, 9791⅔.
Appellant argues from the foregoing memoranda and evidence that the inference is unavoidable that the jury voted nine for plaintiff and three for defendant, upon their ballot taken, and then, in order to reach a unanimous agreement, they set down each juror‘s individual expression, or estimate, of the amount which he thought should be awarded to plaintiff, divided the addition or sum of such numerals by twelve, thereby reaching the quotient 9791⅔, with the
Appellant insists that the “quotient” verdict is almost universally condemned, and has cited numerous juristic authorities, most of them from foreign jurisdictions, wherein, upon substantial and positive proof, such verdicts have been set aside upon appeal. Our own court has held that a verdict made by virtue of, and pursuant to, a prearranged agreement among the jurors to be bound by the result of the averaging of the individual estimates of the jurors amounts to misconduct on the part of the jury, and ought not to be permitted to stand. [Sharp v. Railway Co., 114 Mo. 94, 106; Sawyer v. Railroad Co., 37 Mo. 240, 264; State v. Branstetter, 65 Mo. 149, 156.] But the vitiating fact appears to be in the mutual agreement of the jurors in advance of their verdict to abide by the unknown and unascertained result, and in the cases just cited this court has ruled that the verdict cannot be impeached by the testimony of any one, or more, of the jurors themselves, but only upon substantial and positive proof of such an agreement aliunde the jurors themselves. Hence, BLACK, P. J., in the Sharp case, supra, was compelled to remark, “In general there is, therefore, no way to prove that a verdict is the result of such an agreement.”
We cannot say with certitude, from the record before us in the present case, that the verdict of the jury was the result of a prearranged and mutual agreement of the jurors in advance of their verdict to be bound by the unascertained result of the averaging of the individual estimates of the jurors. There is no evidence whatsoever that the figures, or mathematical computation, contained on the tenth page, or sheet, of the several sheets of foolscap paper in evidence, were in the handwriting of any member of the jury in the present case. It is just as reasonable to infer from the evidence herein that the jury, upon arriving at a verdict, inadvertently gathered up the loose papers which may have been lying upon a table in the jury room, and that the foreman of the jury inadvertently handed such papers to the trial judge together with the jury‘s verdict. Several of the papers thus handed to the trial judge were blank, and had nothing whatsoever written thereon, and one paper had written thereon an unsigned form of verdict finding “the issue for the defendants” (there is only one, single, defendant in the instant case). It may have been (and it requires no stretching of the imagination to reasonably infer) that the figures, or mathematical computation, contained on the tenth page, or sheet, of paper in evidence were placed thereon, by some member of another and different jury than the
The evidence in State v. Linn, 223 Mo. 98, 110, was almost identical with that in the instant case, and we therein said: “Finally, it is insisted that the misconduct of the jurors in the method employed by them in arriving at their verdict, is sufficient to justify a reversal of the judgment. In support of this assignment, the record shows that one of the defendant‘s witnesses testified upon the hearing of a motion for new trial that, about a half or three-quarters of an hour after the verdict was returned and the jury discharged, he found in front of the judge‘s desk and the jury box a paper, which he identified and offered in evidence, containing a column of twelve figures, ranging from 10 to 35, and twelve numbers had been added and the sum divided by twelve, producing a quotient of twenty-four, this last number corresponding to the number of years at which the jury assessed the defendant‘s punishment in the penitentiary. No other trial intervened between the return of the verdict in this case and the finding of this paper by the counsel. There was no other evidence offered on this head. There was nothing to indicate that these figures were in the handwriting of any member of the jury and absolutely nothing to indicate that they agreed in advance to adopt as their verdict the quotient resulting from dividing by twelve the aggregate of the numbers set down on said exhibit. . . . The paper exhibit was utterly insufficient to establish any prior agreement by the jurors to be bound by the quotient verdict. Indeed the paper was
It is the well established and settled rule in this jurisdiction that a party who attacks a verdict upon the ground that it is a quotient verdict must show that there was a prearrangement among the jurors to accept the unknown and unascertained quotient as their verdict, and the presumption is that there was no such prearrangement among the jurors. [Hagan v. Mining Co., 131 Mo. App. 386, 390; Ownby v. Railways Co. (Mo. App.), 228 S. W. 879, 882; Ingram v. Poston (Mo. App.), 260 S. W. 773, 775.] And, if the jurors have not bound themselves beforehand to accept the unascertained quotient as their verdict, but after the quotient is ascertained they adopt it as their verdict, the fact that they fell upon that mode of reaching an agreement will not vitiate their verdict. [Scott v. Railways Co. (Mo. Sup.), 229 S. W. 178, 179, and cases cited.]
We have given careful and thorough consideration to the many assignments of error made by the appellant herein, but our examination of the numerous assignments made, and of the entire record before us, discloses no reversible error. The judgment nisi must therefore be affirmed, and it is so ordered. Lindsay and Ellison, CC., concur.
PER CURIAM:—The foregoing opinion by SEDDON, C., is adopted as the opinion of the court. All of the judges concur.
DAVID J. HERRELL V. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.—18 S. W. (2d) 481.
Division One, March 29, 1929.