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Jury to find for it, which request was by the step, and wire, the same were, on the said 12th court refused, and defendant duly excepted. day of June, 1907, not reasonably safe but Thereupon the plaintiff requested, and the using companies, who might have occasion to

were dangerous for the employés of said wirecourt, over the objections and exceptions of go upon the said new pole in the discharge of defendant, gave him the following instruc-their duties as such employés, and that the tions:

said defendant company at said time knew, or

by the exercise of reasonable care would have “(1) If you find from the evidence that the known, of such unsafe and dangerous condicity of St. Louis was, on the 12th day of June, tions; and if you further find from the evi1907, and for several years prior thereto had dence that on the said 12th day of June, 1907, been, the owner of the line of poles mentioned the plaintiff was in the employ of the said Kinin the evidence, and that during said years the loch" Telephone Company, and was required said city of St. Louis, the defendant company, by said company on suid date to go along the and the Kinloch Company, and other wire- said line of poles to repair, straighten out, and using companies, had strung and were main- untangle the wires of the said Kinloch Teletaining wires on said line of poles by and with phone Company in said line, and that the the consent of the said city of St. Louis, and plaintiff in the discharge of his duties as such had during said period the use of said line of employé did go along such line of poles, and poles, and that during said time it had been, upon the said new pole for the purpose of unand still was on the 12th day of June, 1907, tangling the wires of the said Kinloch Telethe habit and custom of the employés of all phone Company in said line; and if you fursaid companies so having wires on said line and ther find from the evidence that the plaintiff, so using same, to go upon any and all the while upon said new pole, attempted to straightpoles in the said line at any and all times, en out and disentangle the wires of the said whenever necessary for the purpose of un- Kinloch Company in said line, and was in the tangling and keeping their said wires in repair act of disentangling the said wires, and that and in proper and safe condition; and if you while so doing plaintiff took hold of the said further lind from the evidence that the defend- iron step, with which defendant's wire was in ant at all said times knew of such use being contact, for the purpose of balancing himself made of said wire and poles by the said com- on said pole, and was then and thereby burned panies and their said employés; and if you and shocked by the electric current from defurther find from the evidence that said city of fendant's said wire communicated to the said St. Louis issues the several permits read in ev- iron step in said pole; and if you further find idence, and that the defendant company, acting from the evidence that the plaintiff was at all under permits issued to it by the said city of said times in the exercise of ordinary care for St. Louis, set up in said line, and as a part his own safety--then you will return a verthereof, some new poles to take the place of dict for the plaintiff. some of the old poles in said line, and that one “(2) It was the duty of the defendant compaof the said new poles so erected by the said ny to protect its wires carrying a powerful and defendant company was set at a point in said dangerous current of electricity, by insulation line on the north side of Loughborough avenue, or otherwise, and to use a very high degrec at a point about 200 feet west of Colorado of care to keep such insulation or protection avenue in said city of St. Louis, and that of such wires in such condition and repair said new pole was equipped with two rows of so as to make them reasonably safe to those, iron steps or spikes for use as handholds and who in the performance of their duties might steps by its own employés, and the employés be brought in contact with them. A failure to of the other companies having wires on said exercise such care would constitute negligence. line, in climbing said poles, and that in erect. By the term 'very high degree of care' as used ing said pole defendant put the top of the in this instruction is meant that degree of care same among and between the wires in said which would ordinarily be exercised under the line; and if you further find from the evidence same or similar circumstances by cautious and that the wires of the defendant company in prudent persons engaged in the same line of said line carried and were charged with a business. powerful current of electricity of high voltage, "(3) 'Ordinary' care, as used in these inand by reason of being so charged said wires structions with reference to the plaintiff is were at all said times and continued to be on meant that degree of care which careful and the said 12th day of June, 1907, dangerous to prudent persons engaged in the same business life and limb, and were so known to be by the and calling as that of the plaintiff would ordidefendant at all said times; and if you fur- narily exercise under the same or similar cirther find from the evidence that the defendant cumstances. carelessly and negligently failed to put cross- “(4) If under the evidence and instructions of arms on said new pole to support its said the court, you find in favor of the plaintiff, you wires, or to otherwise fasten or secure said should assess his damages at such an amount as wires, and that defendant carelessly and negli- you believe, from the evidence, will be a fair gently suffered and permitted its said wires, compensation to him for the pain of body and or one of them, to become slack and loose and mind, if any, which he has suffered as a direct to sag, and to come, and to be, and to remain result of the injuries in question, and for in contact with one of the said iron steps or such permanent injury, if any, to plaintiff's handhold in said pole, and if you further find hands as you may find was directly caused by from the evidence that the said wire so in the said injuries, and for such loss of earnings, contact with the said iron step was at all said if any, as you may believe from the evidence times charged with and carried a powerful elec- he has sustained in consequence of his said tric current of high voltage; and if you fur- injuries and for such loss or impairment of his ther find from the evidence that the insulation earning power or capacity, if any, as you on said wire was inadequate and insufficient to may find from the evidence he will, in all reaprevent the said electric current of high volt- sonable probability, sustain in the future in age from escaping from defendant's said wire consequence of his said injuries, but the total to the said iron step or handhold, and that damage which you may allow plaintiff must not, said current was by reason of such inadequate in any case, exceed the sum of $35,000.” and insufficient insulation escaping and being The defendant then asked certain instruccommunicated from said wire to said iron step; tions, which the court refused, but modified and causing said iron step to be charged with electricity from defendant's wire; and if you them and gave them in the following form: further find from the evidence that by reason of "Which said instructions, so offered by the fied, and, after being modified, were by the proof is on defendant to show the want of such court given. Said instructions, when given by | ordinary care on the plaintiff's part. the court, were as follows:

“(7) By the terms 'burden of proof' and 'pre“'(1) Even though you may find and believe ponderance of the evidence,' the court intends from the evidence that the defendant from the no reference to the number of witnesses testifydate of the erection by defendant of the new ing concerning any fact, or upon any issue in pole mentioned in the evidence, and being the the case, but simply uses those terms by way first pole west of Colorado street on the north of briefly expressing the rule of law, which is, side of Loughborough avenue, city of St. Louis, that unless the evidence (as to such issue) apto the time of the injury to plaintiff, caused, pears in your judgment to preponderate, in resuffered, and permitted one of its highly charged spect to its credibility in favor of the party wires to come and be and remain in contact to this action on whom the burden of proof with one of the iron steps or handholds on the (as to such issue) rests, then you should find south side of said pole, yet unless you find against such party on said issue. and believe from the evidence that said iron "(8) Nine of your number have the power to step or handhold was caused to be charged | find and return a verdict, and if less than the with electricity because insulation on said wire whole of your number, but as many as nine, in contact with it had been, by long use, neg- agree upon a verdict, the same should be returnlect, and by force of the wind and the weather, ed as the verdict of the jury, in which event permitted by the defendant to become decayed, all of the jurors who concurred in such verdict worn, and disintegrated, your verdict must be shall sign the same; if, however, all of the for the defendant.

jurors concur in a verdict, your foreman alone “(2) It was the duty of the plaintiff to him- may sign it.” self exercise ordinary care for his own safety; and, if you believe and find from the evidence

To which action of the court in giving the adduced before you in this case that he was aforesaid instructions of its own motion, the an experienced telephone lineman, and that be- defendant by counsel then and there duly es. cause of his age, experience, and employment he cepted. knew or should have known of the danger of

Such of defendant's refused instructions placing his hand on the iron step or bandhold of the new pole mentioned in the evidence on as may be necessary to consider in order to which was lying, or in contact with which reach a proper conclusion in the case will be was one of defendant's highly charged wires, if noted later. you find and believe from the evidence that one of the defendant's said wires was so lying on Schnurmacher & Rassieur, of St. Louis, for or in contact with said step or handhold from appellant. Blevins the date of the erection of said pole to the time w. M. Williams, of Boonville, for respondent.

Jamison, of St. Louis, and of the injury to plaintiff, and that said step was charged with electricity because the insulation on said wire had been by long use, WOODSON, J. (after stating the facts as neglect, and by force of the wind and the above). I. It is first insisted by counsel for weather permitted by defendant to become decayed, worn, and disintegrated, and at the the appellant that the trial court erred in not same time take hold with his other hand of a sustaining the demurrer to the respondent's wire or wires of the Kinloch Telephone Com- evidence asked by it; also that it erred in not pany, and if you further believe and find from giving, at the close of the introduction of all the evidence that the plaintiff saw, or could by the exercise of ordinary care have seen, the the evidence in the case, the appellant's persaid wire in contact with said step, then your emptory instruction telling the jury to find verdict must be for the defendant. ** *(3) If you believe from the evidence that thus stated by counsel for appellant:

for it. The grounds of that insistence are the plaintiff and the defendant were both guilty of negligence which directly contributed to “(a) The new pole on which plaintiff met plaintiff's injury, then your verdict must be with his accident was erected pursuant to an for the defendant.

application to the board of public improvements “(4) The defendant at the time of the acci- under date of February 15, 1907. The petition dent to plaintiff had the right to string and alleges that the permit granted on this applicamaintain in the city of St. Louis and at the tion contained the 'express condition that the place of said accident wires carrying high-ten- Kinloch Company, and its employés, should ension current of electricity, and that the mere joy the same rights as to said pole that they maintenance of such wires carrying such cur- theretofore had in the line of old poles, and rent was not negligence.

that defendant accepted this express condi“ '(5) If you believe under the evidence that tion. It is on this averment that plaintiff justhe electric current on defendant's wire es- tified his presence on the pole when he was caped to the iron step mentioned in the testi- burt. There is absolutely no evidence to supmony, not because the insulation or covering port the averment. The only condition annexed on said wire had been permitted by defendant to the permit was 'same space to be reserved to become decayed, worn, and disintegrated, but for wire-using companies, other than the city, because the same was wet or damp, then your that are now occupying space on said poles. verdict must be for the defendant.'

At the time of the accident the line had not To which action of the court in so modify- particular pole in question was barren of cross

yet been transferred to the new poles, and the ing the instructions requested to be given by arms or wires of any description. the defendant and in giving said instructions

“(b) Plaintiff in his petition relies on specific as so modified, the defendant by counsel then allegations of negligence. He charges that the

insulation on defendant's wire had become deand there duly excepted.

cayed, worn, and disintegrated, and that in The court, of its own motion, also gave to this condition the defendant carelessly and neg. the jury the following instructions on be- ligently caused and suffered and permitted the half of the defendant:

said highly charged and dangerous wire and

the said insulation thereon to be and remain in "(6) The burden of proof is on the plaintiff the condition, situation, and under the cirto establish by a preponderance of the evidence cumstances aforesaid, from the date of the the facts necessary to a verdict in his favor erection of said pole until the said 12th day under these instructions, except upon the is- of June, 1907,' etc. There is not one word sue concerning the exercise of ordinary care by of proof to sustain this allegation. Not a witthe plaintiff. As to that issue the burden of ness testified to such condition, or that the

condition charged existed for the length of a ment, their respective employés, as did those minute before plaintiff mounted the pole. of the city, began to use said poles for said

"(c) The evidence showed affirmatively that plaintiff's injuries were the direct result of purposes, and whether there was an express his own carelessness. He was an experienced agreement to that effect or not is wholly imlineman, engaged, because of his skill in this material, for the simple reason that the grantdangerous work, in clearing. 'trouble' among ing of the right by the city to the companies Fires; he knew that every wire, whether used to use the poles for the purposes mentioned for light or power, telephone or telegraph purposes, was to be looked upon as dangerous, be would carry with it all reasonable uses therecause, though ordinarily carrying a low voltage, of which were necessary to properly conduct it might at some distant point be crossed with their business, which, of course, would and & wire of high voltage; he knew, also, the danger of coming in contact with a 'metal 'step, did include the right to use the poles in makitself in danger of contact with a wire, and es- ing repairs and removing obstructions to their pecially dangerous on a damp, wet day yet wires, etc., and other property attached therewith his experience and his knowledge of danger be reached around the pole without looking to. And when the city granted to the appeland without the protection of rubber gloves, lant the permits previously mentioned to rewhen by looking he could have seen the dan- move old poles and substitute in their stead ger and altogether avoided it, or by the use of rubber gloves could have neutralized it."

new ones, the same rights and privileges of the

Kinloch and the other companies had to the [1] We will consider those grounds in the old ones attached to the new poles. This beorder stated.

ing unquestionably true, then it must necesRegarding (a), it is perfectly apparent that sarily follow therefrom that the respondent, counsel for appellant misconceive the scope an employé of the Kinloch Company, in the and effect of the permits issued by the city of performance of his duties to it, when he disSt. Louis to their client, the Union Electric covered the trouble he was sent out to locate Company, authorizing it to remove old poles and remedy, which was within eight or ten and substitute new ones in lieu thereof. These inches of the pole mentioned, had the legal permits, like all other permits, must be read right, independent of custom, to ascend the and construed in the light of the facts and pole and remove the obstruction. This is circumstances that existed and surrounded based upon the familiar principle of law which the parties at the time of their issuance. At provides that when an express power or authat time the city of St. Louis owned a line of thority to do a particular thing is granted by poles extending along Loughborough avenue, the state to a municipality or by the latter to upon which, and prior thereto, it had strung an individual or corporation, then such addiwires for the use of its fire department and tional power as is necessary to enable the telephone system; and, upon application made city, the individual, or corporation to carry by the various companies mentioned for per- into effect the express grant is also conferred mits to erect poles thereon for their respective by necessary implication. The City of St. lines, it became obvious that, if granted, the Louis v. Bell Telephone Co., 96 Mo. 623, 10 S. street would be so completely filled and ob- W. 197, 2 L. R. A. 278, 9 Am. St. Rep. 370. structed by poles and wires that it would, for We are therefore clearly of the opinion that the purposes for which it was acquired, be this ground of the insistence is not solid, and practically destroyed and at the same time should be brushed aside. would greatly interfere with the ingress and [2] Attending (b) under this paragraph it egress to private property abutting thereon, to is contended that there was no evidence introsay nothing of the obstruction of light and air, duced tending to prove the specific allegations and the interference with protection against of the petition regarding the decayed, worn, fire, etc. In order to avoid this undesirable and disintegrated condition of the insulation condition of things the city conceived the of the appellant's wires, at the point in quesidea that the situation might be, in a large tion, which were thereby rendered unsafe degree, relieved by permitting all three of and dangerous to respondent and all others said companies to place cross-arms upon its who were rightfully using the poles. Withpoles and string their respective wires there-out stopping here to decide that proposition, on, and while thereby increasing the number but conceding for the sake of the argument of wires upon its poles, yet at the same time that it is true, yet that would not avail appelpreventing the obstruction of the street with lant anything in this case, for the simple reathree additional lines of poles. After proper son that all the evidence in the case, both negotiations and understandings reached, that of appellant and respondent, shows that that method was adopted, and the wires of the insulation was wholly worthless as a the three companies were, from time to time, protection to the employés of the various added to the poles of the city, which at all companies, and that of the former went so times had footsteps or handholds driven there- far as to show, without pleading it as in, for the purpose of assisting the employés defense, that no insulation manufactured was of the city in ascending and descending the sufficient for that purpose. The appellant's poles in looking after, caring for, and re- superintendent repeatedly so testified withpairing the wires, cross-arms, or other parts out qualification or equivocation. So, under of the plant above ground. That when the this view of the evidence, what cares the law respective companies added their lines of whether the insufficiency arose from decay,

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from any other cause, for that matter? The by a very prudent person engaged in the same question involved in this case is, was the in- or similar service, and that in the case at sulation reasonably safe for the purposes bar counsel for appellant contend that the for which it was being used, and, if not, did evidence shows that respondent exercised the appellant know that fact? As previously no sạch degree of care, and for that reason stated, all the evidence for both parties he was guilty of contributory negligence and showed its insufficiency, and that the appel- was not therefore entitled to a recovery. lant knew that fact, because it contended Technically speaking, and legally also in my that it was not only impossible to so manu- opinion, yet controverted by others, the plea facture it as to make it reasonably safe, but of contributory negligence by necessary implifor that reason it insisted that the respond-cation admits negligence on the part of him ent was guilty of contributory negligence for who makes the plea; but in this case, as in not wearing rubber gloves upon the occasion many others, counsel for appellant insist that when he was injured. Had the contention respondent was guilty of contributory negliof the appellant, namely, that it was impossi- gence, and at the same time maintain appelble to insulate wires of the character of those lant was guilty of no negligence in the case in question so as to make them reasonably whatever. safe for those whose duties required them

Without stopping to discuss the abstruse to work about and among them, been pleaded rule mentioned, I will in passing, state for as a defense and thereby have given the re- myself only, that if the defendant in a cause spondent an opportunity to have met the was not guilty of negligence, but the injury issue, and the appellant's evidence had been was caused by the sole negligence of the the same as disclosed by this record, then plaintiff, then the plea of contributory neg. quite a different question would have been ligence is improper, and the plea should have presented here for determination; but, under been a general denial, or a plea that the inthe present status of the record, that question jury was the result of the plaintiff's own is purely speculative and foreign to the mer- negligence and not that of the defendant. its of this case. Entertaining these views In fact, the answer of appellant filed in this of this ground of appellant's insistence, we cause is of the character last suggested, but are clearly of the opinion that it is wholly in the course of the trial counsel seem to without merit, and should be disallowed. have confused the difference between the two

The last ground (c), assigned by counsel pleas, and proceeded largely upon the theory for appellant as error in action of the court, of contributory negligence on the part of rewas its refusal to give the demurrer to respondent; but, desiring to decide the case upspondent's evidence, and for its declination on the merits rather than on technical pleadto peremptorily instruct the jury to find for ings, we will no further press that question. appellant at the close of all the evidence in Since, however, the questions of negligence the case, occupies a much wider range, and and contributory negligence, as presented by requires a much fuller consideration of the this record are so clearly connected and interevidence introduced, for the reason that it in- woven with one another, we will consider volves the main defense interposed by appel- them together at this place, for what is said lant to respondent's right to a recovery, of the one may admit or exclude the other, namely, contributory negligence. The sub- and vice versa according to the position takstance of this contention is that the record en by counsel for the respective parties. discloses that the respondent was an experi- In the first place was the appellant guilty enced lineman and was engaged by the Kin- of any negligence which caused the respondloch Company as a “trouble man” because of ent's injury? In my opinion, clearly it was; his knowledge of such matters and his skill and my reasons for so stating will follow, in the discovery and repair of all breakdowns [3, 4] It is conceded that the appellant was and other obstructions which might interfere eng ged in a hazardous business, which re with its service due to the public, and that as quired of it the exercise of the highest dea necessary incident thereto he must have gree of care, if not an insurer against injuknown and did know that all the wires strung ry to others. Von Trebra v. Gas Light Co., upon the line of poles mentioned in the evi- 209 Mo. 648, 108 S. W. 559, and numerous dence, whether light or telephone wires, were cases reviewed therein. It is also practi. liable to be charged with deadly currents of cally conceded that at the point of the injuelectricity, by reason of the fact that for vari- ry the appellant, for its own benefit, removed ous reasons the phone wires, the ones the re- the old pole upon which all of the wires of spondent was repairing for many reasons not all the companies mentioned were strung, necessary to be here mentioned, were liable and had inserted in lieu thereof a new pole; at any time to come in contact with the light but at the time of the injury it had not put or other wires carrying a deadly voltage, in place the cross-arms or attached thereto which would render them as dangerous to life the wires of the various companies, as it was and limb as the light wires themselves would bound to do under the permits previously be, that, knowing those facts, the law imposed issued to it by the city. While there is no upon the respondent the duty to exercise the direct and positive evidence upon the queshighest degree of care known and exercised tion, yet it is clearly inferable from the

facts and circumstances in the case that the spective contentions sharply present the quessagging of appellant's wires and the resting tion of contributory. negligence on the part of the one which caused the injury to re- of the respondent, and, having anticipated spondent upon one of the iron steps or hand- the importance of the same, I deemed it necholds on the new pole was caused by the essary to deal somewhat extensively with the appellant's removal of the old pole and the evidence bearing thereon when making the insertion of the new one, and its neglect or statement of the case. We have already confailure to place the cross-arms in place and sidered the evidence of negligence on the to attach the wires thereto as they had been part of the appellant, and the legal effect of on the old pole. The very purpose of the the same, which eliminates the necessity for poles and cross-arms are to support the wires further comment thereon; so consequently and hold them as near taut as practicable, we will briefly consider the evidence bearing in order to prevent them from sagging and upon the question of contributory negligence, waving to and fro, and thereby interfering which is fully set out in the statement of the with or injuring those on the streets, or case, and the legal effect thereof. those who may lawfully be upon the poles The substance of the evidence relied upon or in the vicinity of the wires. There is no by counsel for appellant showing contributoother reason assigned for the loose and sag. ry negligence is as follows: That the reging condition of appellant's wire, and as spondent was what is known in the electriknown from common observation the remov- cal business as a “trouble man”; that is, al of a pole upon which wires are strung will one who is an intellectual and practical mascause them to sag and wave to and fro in ter of the operation of the field portion of a strong wind; and, in our opinion, the jury such a business, as well as the necessary conwere perfectly justified, as it evidently was nections and relations thereof with the plant that that was the cause of the sagging of ap- and machinery that generates the electricity pellant's wires, and the strong wind of the and distributes it throughout the various night before the injury was the cause of the ramifications of those parts of the city and wire resting upon the iron footstep or hand- country served by the company; and consehold, which, when respondent took hold of quently, as an incident thereto, he should it, conducted the current of electricity to his have known and did know the attending danbody, with the frightful results disclosed by gers incident thereto, and should have exthis record. To hold that this evidence did ercised on his part the same high degree of not tend to prove negligence on the part of care for his personal safety in making all appellant would do violence to every princi- repairs to the field work that the appellant ple of law bearing upon that subject. Clark was required to exercise for the safety of 1. St. Louis & Suburban Ry. Co., 234 Mo. 396, others in all branches of its business; that it 137 S. W. 583; Von Trebra v. Gas Light Co., was at all times dangerous to both life and 209 Mo. 648, 108 S. W. 559, and cases cited ; limb for any one to take hold of or come in Clark v. Union Iron & Foundry Co., 234 Mo. contact with any electrical wire, whatever 436, 137 S. W. 577, 45 L. R. A. (N. S.) 295. the voltage thereof may be, while any porWe, therefore, rule that appellant was guilty tion of his person is in contact with any of the grossest kind of negligence, and that other wire or electrical conductor, and vice respondent was entitled to a recovery, pro- versa, without first insulating himself by viding he was not guilty of negligence which wearing rubber gloves, boots, or some similar contributed directly to his injury.

well-known nonconductor of electricity, for. [5] We will now consider the question of the well-known reason, so forcefully assigned respondent's contributory negligence. Coun- in briefs by counsel for appellant, namely, sel for appellant strenuously insist that the that any and all wires, whatever their voltrespondent was guilty of the grossest kind age may be, high or low, may, for many reaof contributory negligence, and that under sons too numerous to be here mentioned, at no principle of law applicable to the facts of any time become broken or detached from this case was he entitled to a recovery, and their moorings, and, through falling or othfor that reason, if for no other, it contends erwise coming in contact with other wires the trial court should have peremptorily in- or objects near to or far removed from structed the jury to find for it; while, upon any given points may thereby conduct a the other hand, counsel for respondent, with high-voltage wire to a telegraph or telephone equal zeal and earnestness, contend: First, wire, which respectively carry a very small that there is no evidence contained in this and noninjurious voltage, and thereby conrecord which tends to prove contril utory neg. vert the noninjurious wire into one of the ligence on his part; and, second, that even same dangerous character as the one which though they be mistaken in that contention, carries a high voltage; and that, knowing still they insist that the defense of negli- all of those facts and the danger attending gence and of contributory negligence on the the same, especially so soon after the storm part of the respondent must have been charg- of the night before, the respondent should ed and proved by appellant to the reasonable have insulated himself, and, having failed satisfaction of the jury in order to bar his to so do, he was guilty of such contributory right of recovery, on account of appellant's negligence that he is not, as a matter of law, negligence, as previously stated. These re-entitled to a recovery in this case.

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