jury to find for it, which request was by the court refused, and defendant duly excepted. Thereupon the plaintiff requested, and the court, over the objections and exceptions of defendant, gave him the following instructions: "(1) If you find from the evidence that the city of St. Louis was, on the 12th day of June, 1907, and for several years prior thereto had been, the owner of the line of poles mentioned in the evidence, and that during said years the said city of St. Louis, the defendant company, and the Kinloch Company, and other wireusing companies, had strung and were maintaining wires on said line of poles by and with the consent of the said city of St. Louis, and had during said period the use of said line of poles, and that during said time it had been, and still was on the 12th day of June, 1907, the habit and custom of the employés of all said companies so having wires on said line and so using same, to go upon any and all the poles in the said line at any and all times, whenever necessary for the purpose of untangling and keeping their said wires in repair and in proper and safe condition; and if you further find from the evidence that the defendant at all said times knew of such use being made of said wire and poles by the said companies and their said employés; and if you further find from the evidence that said city of St. Louis issues the several permits read in evidence, and that the defendant company, acting under permits issued to it by the said city of St. Louis, set up in said line, and as a part thereof, some new poles to take the place of some of the old poles in said line, and that one of the said new poles so erected by the said defendant company was set at a point in said line on the north side of Loughborough avenue, at a point about 200 feet west of Colorado avenue in said city of St. Louis, and that said new pole was equipped with two rows of iron steps or spikes for use as handholds and steps by its own employés, and the employés of the other companies having wires on said line, in climbing said poles, and that in erecting said pole defendant put the top of the same among and between the wires in said line; and if you further find from the evidence that the wires of the defendant company in said line carried and were charged with a powerful current of electricity of high voltage, and by reason of being so charged said wires were at all said times and continued to be on the said 12th day of June, 1907, dangerous to life and limb, and were so known to be by the defendant at all said times; and if you further find from the evidence that the defendant carelessly and negligently failed to put crossarms on said new pole to support its said wires, or to otherwise fasten or secure said wires, and that defendant carelessly and negligently suffered and permitted its said wires, or one of them, to become slack and loose and to sag, and to come, and to be, and to remain in contact with one of the said iron steps or handhold in said pole, and if you further find from the evidence that the said wire so in contact with the said iron step was at all said times charged with and carried a powerful electric current of high voltage; and if you further find from the evidence that the insulation on said wire was inadequate and insufficient to prevent the said electric current of high voltage from escaping from defendant's said wire to the said iron step or handhold, and that said current was by reason of such inadequate and insufficient insulation escaping and being communicated from said wire to said iron step, and causing said iron step to be charged with electricity from defendant's wire; and if you further find from the evidence that by reason of the aforesaid conditions of the said pole, iron step, and wire, the same were, on the said 12th day of June, 1907, not reasonably safe but were dangerous for the employés of said wireusing companies, who might have occasion to go upon the said new pole in the discharge of their duties as such employés, and that the said defendant company at said time knew, or by the exercise of reasonable care would have known, of such unsafe and dangerous conditions; and if you further find from the evidence that on the said 12th day of June, 1907, the plaintiff was in the employ of the said Kinloch Telephone Company, and was required by said company on said date to go along the said line of poles to repair, straighten out, and untangle the wires of the said Kinloch Telephone Company in said line, and that the plaintiff in the discharge of his duties as such employé did go along such line of poles, and upon the said new pole for the purpose of untangling the wires of the said Kinloch Telephone Company in said line; and if you further find from the evidence that the plaintiff, while upon said new pole, attempted to straighten out and disentangle the wires of the said Kinloch Company in said line, and was in the act of disentangling the said wires, and that while so doing plaintiff took hold of the said iron step, with which defendant's wire was in contact, for the purpose of balancing himself on said pole, and was then and thereby burned and shocked by the electric current from defendant's said wire communicated to the said iron step in said pole; and if you further find from the evidence that the plaintiff was at all said times in the exercise of ordinary care for his own safety-then you will return a ver dict for the plaintiff. "(2) It was the duty of the defendant company 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 so as to make them reasonably safe to those, who in the performance of their duties might be brought in contact with them. A failure to exercise such care would constitute negligence. By the term 'very high degree of care' as used in this instruction is meant that degree of care which would ordinarily be exercised under the same or similar circumstances by cautious and prudent persons engaged in the same line of business. "(3) 'Ordinary' care, as used in these instructions with reference to the plaintiff is meant that degree of care which careful and prudent persons engaged in the same business and calling as that of the plaintiff would ordinarily exercise under the same or similar circumstances. "(4) If under the evidence and instructions of the court, you find in favor of the plaintiff, you should assess his damages at such an amount as you believe, from the evidence, will be a fair compensation to him for the pain of body and mind, if any, which he has suffered as a direct result of the injuries in question, and for such permanent injury, if any, to plaintiff's hands as you may find was directly caused by the said injuries, and for such loss of earnings, if any, as you may believe from the evidence he has sustained in consequence of his said injuries and for such loss or impairment of his earning power or capacity, if any, as you may find from the evidence he will, in all reasonable probability, sustain in the future in consequence of his said injuries, but the total damage which you may allow plaintiff must not, in any case, exceed the sum of $35,000." The defendant then asked certain instructions, which the court refused, but modified them and gave them in the following form: "Which said instructions, so offered by the defendant as aforesaid, were by the court modi fied, and, after being modified, were by the court given. Said instructions, when given by the court, were as follows: "(1) Even though you may find and believe from the evidence that the defendant from the date of the erection by defendant of the new pole mentioned in the evidence, and being the first pole west of Colorado street on the north side of Loughborough avenue, city of St. Louis, to the time of the injury to plaintiff, caused, suffered, and permitted one of its highly charged wires to come and be and remain in contact with one of the iron steps or handholds on the south side of said pole, yet unless you find and believe from the evidence that said iron step or handhold was caused to be charged with electricity because insulation on said wire in contact with it had been, by long use, neglect, and by force of the wind and the weather, permitted by the defendant to become decayed, worn, and disintegrated, your verdict must be for the defendant. "(2) It was the duty of the plaintiff to himself exercise ordinary care for his own safety; and, if you believe and find from the evidence adduced before you in this case that he was an experienced telephone lineman, and that because of his age, experience, and employment he knew or should have known of the danger of placing his hand on the iron step or handhold of the new pole mentioned in the evidence on which was lying, or in contact with which was one of defendant's highly charged wires, if you find and believe from the evidence that one of the defendant's said wires was so lying on or in contact with said step or handhold from the date of the erection of said pole to the time of the injury to plaintiff, and that said step was charged with electricity because the insulation on said wire had been by long use, neglect, and by force of the wind and the weather permitted by defendant to become decayed, worn, and disintegrated, and at the same time take hold with his other hand of a wire or wires of the Kinloch Telephone Company, and if you further believe and find from the evidence that the plaintiff saw, or could by the exercise of ordinary care have seen, the said wire in contact with said step, then your verdict must be for the defendant. (3) If you believe from the evidence that the plaintiff and the defendant were both guilty of negligence which directly contributed to plaintiff's injury, then your verdict must be for the defendant. "(4) The defendant at the time of the accident to plaintiff had the right to string and maintain in the city of St. Louis and at the place of said accident wires carrying high-tension current of electricity, and that the mere maintenance of such wires carrying such current was not negligence. (5) If you believe under the evidence that the electric current on defendant's wire escaped to the iron step mentioned in the testimony, not because the insulation or covering on said wire had been permitted by defendant to become decayed, worn, and disintegrated, but because the same was wet or damp, then your verdict must be for the defendant.' To which action of the court in so modifying the instructions requested to be given by the defendant and in giving said instructions as so modified, the defendant by counsel then and there duly excepted. The court, of its own motion, also gave to the jury the following instructions on behalf of the defendant: "(6) The burden of proof is on the plaintiff to establish by a preponderance of the evidence the facts necessary to a verdict in his favor under these instructions, except upon the issue concerning the exercise of ordinary care by the plaintiff. As to that issue the burden of proof is on defendant to show the want of such ordinary care on the plaintiff's part. "(7) By the terms 'burden of proof' and 'preponderance of the evidence,' the court intends no reference to the number of witnesses testifying concerning any fact, or upon any issue in the case, but simply uses those terms by way of briefly expressing the rule of law, which is, that unless the evidence (as to such issue) appears in your judgment to preponderate, in respect to its credibility in favor of the party to this action on whom the burden of proof (as to such issue) rests, then you should find against such party on said issue. "(8) Nine of your number have the power to find and return a verdict, and if less than the whole of your number, but as many as nine, agree upon a verdict, the same should be returned as the verdict of the jury, in which event all of the jurors who concurred in such verdict shall sign the same; if, however, all of the jurors concur in a verdict, your foreman alone may sign it." To which action of the court in giving the aforesaid instructions of its own motion, the defendant by counsel then and there duly excepted. Such of defendant's refused instructions as may be necessary to consider in order to reach a proper conclusion in the case will be noted later. Schnurmacher & Rassieur, of St. Louis, for appellant. Blevins & Jamison, of St. Louis, and W. M. Williams, of Boonville, for respondent. WOODSON, J. (after stating the facts as above). I. It is first insisted by counsel for the appellant that the trial court erred in not sustaining the demurrer to the respondent's evidence asked by it; also that it erred in not giving, at the close of the introduction of all the evidence in the case, the appellant's peremptory instruction telling the jury to find for it. The grounds of that insistence are thus stated by counsel for appellant: "(a) The new pole on which plaintiff met with his accident was erected pursuant to an application to the board of public improvements under date of February 15, 1907. The petition alleges that the permit granted on this application contained the 'express condition' that the Kinloch Company, and its employés, should enjoy the same rights as to said pole that they theretofore had in the line of old poles, and that defendant accepted this express condition. It is on this averment that plaintiff justified his presence on the pole when he was hurt. There is absolutely no evidence to support the averment. The only condition annexed to the permit was 'same space to be reserved for wire-using companies, other than the city, that are now occupying space on said poles." At the time of the accident the line had not yet been transferred to the new poles, and the particular pole in question was barren of crossarms or wires of any description. "(b) Plaintiff in his petition relies on specific allegations of negligence. He charges that the insulation on defendant's wire had become decayed, worn, and disintegrated, and that in this condition the 'defendant carelessly and negligently caused and suffered and permitted the said highly charged and dangerous wire and the said insulation thereon to be and remain in the condition, situation, and under the cir cumstances aforesaid, from the date of the erection of said pole until the said 12th day of June, 1907,' etc. There is not one word of proof to sustain this allegation. Not a witness testified to such condition, or that the condition charged existed for the length of a [1] We will consider those grounds in the order stated. ment, their respective employés, as did those of the city, began to use said poles for said purposes, and whether there was an express agreement to that effect or not is wholly immaterial, for the simple reason that the granting of the right by the city to the companies to use the poles for the purposes mentioned would carry with it all reasonable uses thereof which were necessary to properly conduct their business, which, of course, would and did include the right to use the poles in making repairs and removing obstructions to their wires, etc., and other property attached thereto. And when the city granted to the appellant the permits previously mentioned to remove old poles and substitute in their stead new ones, the same rights and privileges of the Kinloch and the other companies had to the old ones attached to the new poles. This being unquestionably true, then it must necessarily follow therefrom that the respondent, an employé of the Kinloch Company, in the performance of his duties to it, when he discovered the trouble he was sent out to locate and remedy, which was within eight or ten inches of the pole mentioned, had the legal right, independent of custom, to ascend the pole and remove the obstruction. This is based upon the familiar principle of law which provides that when an express power or authority to do a particular thing is granted by the state to a municipality or by the latter to an individual or corporation, then such additional power as is necessary to enable the city, the individual, or corporation to carry into effect the express grant is also conferred by necessary implication. The City of St. Louis v. Bell Telephone Co., 96 Mo. 623, 10 S. W. 197, 2 L. R. A. 278, 9 Am. St. Rep. 370. We are therefore clearly of the opinion that this ground of the insistence is not solid, and should be brushed aside. Regarding (a), it is perfectly apparent that counsel for appellant misconceive the scope and effect of the permits issued by the city of St. Louis to their client, the Union Electric Company, authorizing it to remove old poles and substitute new ones in lieu thereof. These permits, like all other permits, must be read and construed in the light of the facts and circumstances that existed and surrounded the parties at the time of their issuance. At that time the city of St. Louis owned a line of poles extending along Loughborough avenue, upon which, and prior thereto, it had strung wires for the use of its fire department and telephone system; and, upon application made by the various companies mentioned for permits to erect poles thereon for their respective lines, it became obvious that, if granted, the street would be so completely filled and obstructed by poles and wires that it would, for the purposes for which it was acquired, be practically destroyed and at the same time 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 a 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, wire, either by tacit consent or express agree-wear, or disintegration of the insulation, or 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 such 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 impli for 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 negli of 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 negquite 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 pleas, and proceeded largely upon the theory of contributory negligence on the part of respondent; but, desiring to decide the case upon the merits rather than on technical pleadings, we will no further press that question. Since, however, the questions of negligence and contributory negligence, as presented by this record are so clearly connected and interwoven with one another, we will consider them together at this place, for what is said of the one may admit or exclude the other, and vice versa according to the position taken by counsel for the respective parties. In the first place was the appellant guilty of any negligence which caused the respondent's injury? In my opinion, clearly it was; and my reasons for so stating will follow. The last ground (c), assigned by counsel for appellant as error in action of the court, was its refusal to give the demurrer to respondent's evidence, and for its declination to peremptorily instruct the jury to find for appellant at the close of all the evidence in the case, occupies a much wider range, and requires a much fuller consideration of the evidence introduced, for the reason that it involves the main defense interposed by appellant to respondent's right to a recovery, namely, contributory negligence. The substance of this contention is that the record discloses that the respondent was an experienced lineman and was engaged by the Kinloch Company as a "trouble man" because of his knowledge of such matters and his skill in the discovery and repair of all breakdowns [3, 4] It is conceded that the appellant was and other obstructions which might interfere engaged in a hazardous business, which rewith 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 practiliable 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 necessary to be here mentioned, were liable at any time to come in contact with the light or other wires carrying a deadly voltage, which would render them as dangerous to life and limb as the light wires themselves would be, that, knowing those facts, the law imposed upon the respondent the duty to exercise the highest degree of care known and exercised all the companies mentioned were strung, and had inserted in lieu thereof a new pole; but at the time of the injury it had not put in place the cross-arms or attached thereto the wires of the various companies, as it was bound to do under the permits previously issued to it by the city. While there is no direct and positive evidence upon the question, 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 known from common observation the removal of a pole upon which wires are strung will cause them to sag and wave to and fro in a strong wind; and, in our opinion, the jury were perfectly justified, as it evidently was that that was the cause of the sagging of appellant's wires, and the strong wind of the night before the injury was the cause of the wire resting upon the iron footstep or handhold, which, when respondent took hold of it, conducted the current of electricity to his body, with the frightful results disclosed by this record. To hold that this evidence did not tend to prove negligence on the part of appellant would do violence to every principle of law bearing upon that subject. Clark v. St. Louis & Suburban Ry. Co., 234 Mo. 396, 137 S. W. 583; Von Trebra v. Gas Light Co., 209 Mo. 648, 108 S. W. 559, and cases cited; Clark v. Union Iron & Foundry Co., 234 Mo. 436, 137 S. W. 577, 45 L. R. A. (N. S.) 295. We, therefore, rule that appellant was guilty of the grossest kind of negligence, and that respondent was entitled to a recovery, providing he was not guilty of negligence which contributed directly to his injury. spondent was what is known in the electrical business as a "trouble man"; that is, one who is an intellectual and practical master of the operation of the field portion of such a business, as well as the necessary connections and relations thereof with the plant and machinery that generates the electricity and distributes it throughout the various ramifications of those parts of the city and country served by the company; and consequently, as an incident thereto, he should have known and did know the attending dangers incident thereto, and should have exercised on his part the same high degree of care for his personal safety in making all repairs to the field work that the appellant was required to exercise for the safety of others in all branches of its business; that it was at all times dangerous to both life and limb for any one to take hold of or come in contact with any electrical wire, whatever the voltage thereof may be, while any portion of his person is in contact with any other wire or electrical conductor, and vice versa, without first insulating himself by wearing rubber gloves, boots, or some similar 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 contributory 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. 169 S.W.-23 |