Counsel for appellant go so far as to contend that, even though the high-voltage wire was insulated with the best insulation known to science and used in the commercial world, still the respondent in this case was not entitled to a recovery, for the simple reason that he did not use rubber boots or rubber gloves, etc., in making the repairs on the Kinloch wires mentioned in the evidence, and for that reason alone the court should have declared as a matter of law that the respondent was not entitled to a recovery. A complete answer to that contention is the record nowhere shows that respondent was injured by reason of a high and low voltage wire coming in contact with the iron handhold of the pole upon which the respondent was ascending. However, we will not let the case turn upon this narrow, though solid, point, but will meet the proposition as presented by counsel for appellant. That insistence is more plausible than sound, for the reason that if it be true, as counsel for appellant contend, and as some of its evidence tended to prove, that there was no insulation known to science which would render wires of high voltage free from danger to those who came in contact with or handled them, and in the same breath insist with greater zeal that if respondent had only used rubber gloves or rubber boots in making the repairs mentioned, then all danger to him would have been completely removed, and that he not only would not, but could not, have sustained the injuries complained of. The plain fallacy of counsel's position consists in the contention that science has discovered no insulation which can perfectly insulate a wire of high voltage and thereby render the handling of the same noninjurious, yet in the same breath insist that science has, by a comparatively inexpensive device, produced a rubber glove which, when worn, will completely remove all danger to those who handle such wires with such rubber gloves. It does not arise to the height of respectable nonsense to contend that science can and has so insulated the hand so as to make it safe for one to handle a wire of high voltage, and then in the next breath insist that science has not and cannot insulate a similar wire with a similar substance with like results. Moreover, that contention is in direct conflict with common observation and is disproved by common knowledge. If it was not for the perfect insulation of wires carrying high voltage, or for some other equally protective system, such as are thrown about trolley wires, how long would any or all of the great cities of this and other countries exist? I dare say that, should all insulation be removed from all such wires, but few of such cities would survive the night. But independent of all that, the great weight of the evidence in this case, as previously set forth in the statement of the case, shows that this contention of appellant is not only not true, but also that there was no rule promulgated by the Kinloch Company requiring the respondent, or any of its employés to wear rubber gloves while performing the services for which he was engaged. That is true not only of the Kinloch Company, but is true of all other companies engaged in similar business. Not only that, the great weight of the evidence introduced by both the appellant and respondent almost conclusively shows that none of the employés of the Kinloch, nor of any of the other companies mentioned, ever wore rubber gloves in the performance of the duties the respondent was engaged in when injured. I am therefore clearly of the opinion that there is absolutely no merit in this element of appellant's contention of contributory negligence. It is next insisted, along this line, by counsel for appellant, that the respondent is not entitled to a recovery in this case for the reason that he was guilty of contributory negligence in that he should have seen, and would by the exercise of ordinary care have seen, the sagged condition of its wire and its contact with the handhold on the pole, had he exercised ordinary care in looking out for his own safety; that is, since he was looking for trouble along the wires of the Kinloch Company, which he was required to adjust, he should also have looked for any and all defects that existed along the lines of the appellant, and of course, by parity of reasoning, those of the city of St. Louis and Western Union Telegraph Company, all of whose wires (at least 25 in number) were strung upon this same line of poles, and that, having failed to perform this slight duty (which it seems from the record the appellant never did, but depended wholly upon the police and the good citizens of the city of St. Louis to perform that duty for it), he was not entitled to a recovery, and that it was the duty of the trial court to have so instructed the jury, and that, having failed to so do, it now becomes the duty of this court to do that which the trial court erroneously refused to do. With all due deference to the opinions and learning of my Associates who entertain different views, I am firmly and unalterably of the opinion that the evidence in this case does not show that the respondent was guilty of such contributory negligence that required the court to declare, as a matter of law, that he was not entitled to a recovery. The importance of this case does not stop with the poor unfortunate who was so frightfully injured by the gross negligence of the appellant, but it cuts deep and to the very quick of the duty of those who handle this insidious and deadly fiend. And, in passing, the fact should not be overlooked that the public has no access to the generating or distributing agencies of this highly useful, yet deadly, servant when unharnessed, and for this reason no one is in a position to protect himself or herself against its lurking and deadly stroke, but must depend for their safety upon the intelligence and the high degree of care the law has so wisely imposed upon those who are granted the privilege of handling the same and furnishing it to the public. For this reason all of the authorities agree that the degree of care required of such companies must never be reduced, lessened, or lowered. Returning to the question of contributory negligence: Can it be declared as a matter of law that, because the respondent failed to see that the light wire was in contact with the iron handhold, he was guilty of such contributory negligence that he was not entitled to a recovery? I think not. It should be borne in mind that the negligent act complained of on the part of respondent was one of omission and not of commission, which is never treated with the same gravity as the latter. He simply failed to see a defective and dangerous condition in appellant's wires, which was the result of the negligent acts of commission on the part of appellant, for the existence of which he was not required to anticipate or look for, except, of course, in so far as it was his duty to look out for his own safety. And that brings us to the legal proposition, Was that defect so apparent or obvious that the law will declare that a reasonably prudent person, looking out for his own safety, would have seen that dangerous condition? In this connection it should also be remembered that respondent had the legal right to presume, and to act upon the presumption, that the appellant had properly guarded its wires when it removed the old pole and inserted the new; also that it had properly insulated its wires, both of which the uncontradicted evidence shows it had not done. The law should and always does, in considering the acts of men, give due weight to the facts and circumstances surrounding them, and which naturally influence their conduct at the time; and, under this rule, the failure of respondent to discover the contact between the appellant's wire and the iron handhold on the pole after thus having doubly assured him of his safety, should not be declared negligence as a matter of law. He had the right to rely upon the presumption that appellant had performed its duty in the regard mentioned, especially after having examined the cable box and ascertaining therein that the Kinloch wires, the ones he was inspecting, were free from contact with all light and power wires. This again diverted respondent's attention from the light wires, and lulled him into a sense of security from all danger from that source. While it is true two witnesses after the accident had occurred, while standing on the ground near the pole, saw the light wire was in contact with the iron handhold, but can it be said as a matter of law that because they saw it all other prudent persons walking by or climbing the pole would also have noticed the position of the wire? It should be added that one of these had his attention previously called to the fact that the light wire or some power wire was out of condition, and that he was on the lookout for it when he discovered its contact with the iron handhold, while the respondent had no such warning of danger. The conduct of this witness, with such notice, should not constitute the rule by which the conduct of respondent should be judged when he had no such notice whatever. Again, this record does not disclose the position of these two witnesses when they observed the condition of the light wire and the iron handhold, which was only a few inches from the pole. It cannot be said as a matter of law that the respondent occupied the same favorable position for observation that they did. A person standing on the south side of the pole looking for danger from the light wire, as one of these witnesses was, would be more likely to observe what they saw than another would, though equally prudent, standing on the other side of the pole, anticipating no danger, especially when there were so many wires strung thereon, detracting attention from the particular one in question. This record also discloses that two other witnesses apparently as intelligent, prudent, and as disinterested as the two previously mentioned, the first to reach the pole after the respondent received the shock did not see or notice the contact between the light wire and the handhold which caused respondent's injury. One of them saw the burnt place on the pole just above the handhold, but did not notice the contact between the two. Can it also be seriously contended that these two gentlemen were guilty of negligence as a matter of law for their failure to see the contact between the light wire and the iron handhold? I think not, for the simple reason that one person viewing an object from one viewpoint and another from a different one will naturally see small parts thereof, which the other never saw and could not have seen from his viewpoint. As previously stated, the respondent was under no legal or moral obligation to investigate the condition of appellant's wires; that he had the right to assume the appellant had performed its full duty in protecting him and the public from all danger incident to this valuable servant, when properly bridled but a most powerful agency of destruction to life and property when not properly harnessed; that its wires and new poles placed in position by it were in a safe and proper position and condition; and that he would be in a state of safety in performing his duties as an employé to the Kinloch Company. Under these conditions I again ask the question, can it be declared as a matter of law that the re In treating of this very question, 29 Cyc. 631, states the law in this language: "Whenever it is necessary to determine what a man of ordinary care and prudence would be likely to do in the emergency proven, involving, it can only be settled by a jury." as it generally does, more or less of conjecture, Frantz v. Citizens' Electric Co., 231 Pa. 589, 80 Atl. 1106, decided by the Supreme Court of Pennsylvania, May 11, 1911, is in point. The court said: spondent could not approach the pole mentioned as a reasonably prudent person, and ascend the same in the usual manner, by usual means, for the purpose of repairing the trouble he was sent out to find, which was on the north side of the pole, without seeing or observing the contact of the light wire with the handhold on the south side of the pole? The answer must be, yes. Out of the five witnesses, including the respondent, who examined the situation just after the injury occurred, but one of them, without warning, notic- "We are asked to say the learned court beed the contact between the wire and hand-ter of law that the deceased husband was guilty low committed error in not declaring as a mathold. That being true, why should the law of contributory negligence. At the trial the declare that he was the only reasonable, pru-questions of negligence and of contributory negdent person among the five? Laws are made for the government of the people as they actually exist, and not solely for the paragon of perfection in any line or conduct. That may be an ideal state to work to, but all such laws would afford but little protection to the ordinary man or woman now living, and would be of no use to the paragon, for the simple reason his conduct would need no legal control. ligence were submitted to the jury in a charge fair to both parties and free from just criticism by either. No complaint is made as to the manner in which the questions were submitted, but it is argued with force and ability that the decedent was so clearly guilty of contrial judge to so declare as a matter of law." tributory negligence that the duty rested on the The court then proceeds to state the ground upon which that contention was based, saying: It goes without saying that the respondent "This position is predicated upon the theory did not know that the light wire was resting that it was the duty of the lineman to look up as he ascended the pole, and, if he had done upon the handhold. He so testified, and he so, he would have seen the dangerous wire at is uncontradicted. Furthermore, common the point where the insulation had worn off, sense proclaims in no uncertain terms that and if he had seen the uninsulated wire, or he would not have taken hold of the hand-able care, it was his duty to avoid such an could have seen it by the exercise of reasonhold had he known of the contact between it obvious danger. The difficulty with this posiand the wire. The instinct of self-preserva- tion is that there is no imperative rule requirtion would not have permitted him to have ing a person climbing a telephone pole to consubjected himself to the horrible danger he witnesses in the case at bar, familiar with pole stantly look up, and the testimony of all the encountered had he known of the contact. I climbing, is that the decedent climbed the pole know of no law that required respondent to in the usual and proper manner. Under these walk around the pole and examine it and the the courts to say, as a matter of law, that the circumstances it would be most arbitrary for connections of the various wires therewith lineman, who met his death in the performance before ascending it, especially when he had of his duties, did not climb the pole in a proper no intimation of the negligence previously manner, when all the witnesses with experimentioned. The law only charges him with ence in this kind of work testified he did. "We agree it is the duty of an employé to what he saw, or by the exercise of ordinary use due care, so as to avoid open and obvious care could have seen, at the time and under dangers. A servant cannot take his chances the circumstances. The evidence is uncontra- by recklessly and heedlessly running into danger, and then hold the master answerable in dicted that the wire which injured respond- damages for injuries resulting from his own ent was insulated, and that he had observed folly. But that is not this case. After a carethat fact before climbing the pole and, hav- ful examination of this record, we cannot say ing had no ground to suspect that the insula- in contact with the defective wire which caused that the decedent recklessly and heedlessly came tion was insufficient for the purpose for his death. We start with the presumption that which it was being used (namely, to protect the decedent did his duty; but it is argued that the employés of the city and those of the vathis presumption is overcome by the witness rious companies using the poles and making that he did not look up after he started to who saw him climb the pole. This only means repairs, just as respondent was doing when climb, and the expert pole climbers testified hurt), or that the wire was in contact with the that it was necessary for him to watch his feet handhold, it seems to me that it would be a as he ascended, because of the condition of the rather harsh rule which would declare his company, and not of the appellant company. pole. He was an employé of the telephone conduct in ascending the pole looking for There is nothing in the evidence to show that trouble on the Kinloch wires was negligence he had any knowledge of the fact that the elecper se, simply because he did not observe tric high-tension wires were attached to the telephone pole." the contact of the light wire with the handhold, which was on the opposite side of the pole from him, and within eight or ten inches of it. That the evidence made out a case of contributory negligence for the jury I have no doubt, but to say that his conduct was negligence as a matter of law, I deny; and no authority has been cited nor can be found so holding. To the same effect is the case decided by the Springfield Court of Appeals, Trout v. Gas Light Co., 151 Mo. App. 227, 229, 231, 132 S. W. 58. It was argued in that case, as here that the danger was obvious, and that, as plaintiff had climbed the pole before, he could have seen the dangerous condition if he had looked; but the court refused to hold as a matter of law that he was guilty of contribu- | charge that he either saw the open gate betory negligence. The Supreme Court of Minnesota, in Musolf V. Duluth Edison Electric Co., 108 Minn. 374, 122 N. W. loc. cit. 501, 24 L. R. A. (N. S.) 461, said: "The jury found that the death of the deceased was not caused by his own negligence. No considerations have appeared in the record which would justify us in holding that as a matter of law deceased knew of the defective insulation of the wires. He had the right to rely upon the performance of its duty by defendant. He was not bound to anticipate defendant's negligence." This court in Von Trebra v. Gaslight Co., 209 Mo. loc. cit. 662, 108 S. W. 562, used this language: "While it is true there is evidence in this record which might have warranted the jury in finding he was guilty of contributory negligence, yet they did not do so. That was an issue which could be only determined by the jury. It was properly submitted to them, and they found against appellant, which is conclusive upon this court.' The same principle was involved in Buesching v. St. Louis Gaslight Co., 73 Mo. loc. cit. 230, 39 Am. Rep. 503. The court said: "Taking it for granted, then, that Buesching fell into the opening, or, what is tantamount thereto, that there is testimony from which that fact could be found, the next question is, is there evidence on which a jury should be permitted to find that at the time of his fall the deceased was in the exercise of ordinary care? The argument of defendants' counsel is that if the deceased saw this entrance, he was negligent in not avoiding it. If he did not see it, he was negligent in not looking, as it was in plain view and well known to him, and had been for years before." The court, further along in the opinion (73 Mo. loc. cit. 232, 39 Am. Rep. 503) said: fore it struck him, or could have seen it by the exercise of ordinary care. This court refused to declare that as a matter of law there could be no recovery, but held that the question of contributory negligence was for the jury. The court said (215 Mo. loc. cit. 413, 114 S. W. 1062): If the "The evidence shows that if the gates had been open when he was coming down the stairway, he would have seen them if he had looked, and it also shows that he did not look, but that on the contrary he came down the stairway with his mind on the cattle, leaning over the railing, with his face turned south. plaintiff saw the gates open, he was guilty of negligence in not taking care to avoid coming into collision with them; but the testimony is that he did not see them. Was he negligent because he did not look in that direction as he came down the stairway? As a general rule, a man is not required to look for danger when he has no cause to anticipate danger, or when danger does not exist except it be caused by the negligence of another (citing authorities). That is the general rule; and, whilst there may be some exceptions, yet there is nothing in this case to take it out of the general rule. There is nothing in the evidence to indicate that plaintiff had any reason to anticipate that these gates might be open." This rule was also applied in Russell v. City of Columbia, 74 Mo. 480, 41 Am. Rep. 325. See, also, Langan v. Railway Co., 72 Mo. 392. The record in this case presents a much stronger case for the respondent than do any of the cases cited. Here the respondent was where he had the right to be; he examined the cable box and found the Kinloch wires, the ones he was inspecting, were free from contact with any high-voltage wires; he observed the poles and wires of all the companies in a general way, but noticed no defect of any kind; he did not know of the contact between the appellant's wire and the handhold; he had no notice of appellant's negligence in failing to secure its wires to the cross-arms on the new pole; he had no intimation of danger lurking about him, and had no special occasion for being on the outlook for same, and that appellant's wires were not properly insulated for the purpose they were being used, which was known by it, but unknown to the respondent. These facts are practically undisputed, but whether they are or not is whol "The argument for the defendants, then, with the element of previous knowledge eliminated, stands thus: As the opening was not concealed, but was obvious to the sight, the deceased was guilty of negligence if he did not see it, and if he did see it, he was guilty of negligence in not avoiding it. These propositions are stated as abstract propositions, which must, if true, obtain in all cases, and not in this case only, for the circumstances under which Buesching failed to see the cellarway, or seeing it, failed to avoid it, are not shown by the testimony. These propositions, then, if they are true, and mean anything as applied to this case, mean that Buesching should, no matter what the circumstances sur rounding him at the time, have seen the holely immaterial, because the jury found them into which he fell, and, seeing it, should, no matter how great the difficulty of so doing, have avoided it. If such be the law, it is quite plain that there never could be a recovery for an injury occasioned by an obvious defect in a highway. But such is not the law. The law is that the deceased was guilty of negligence if he did not see it, provided he would have seen it by exercising ordinary care." Crawford v. Stockyards Co., 215 Mo. 394, 114 S. W. 1057, was a suit for personal injuries suffered by the plaintiff while on some cattle cars that came in contact with open gates extending out over the platform at the stockyards. It was urged that a recovery could not be had because of plaintiff's contributory negligence, which consisted in the to be true upon an abundance of evidence, which for the purpose of the demurrer in this case is the same as though they were undisputed. So under the authorities previously cited, as well as those to be presently mentioned, I am fully satisfied that the evidence made a prima facie case for the jury, and that the trial court properly refused the demurrer to the evidence and the peremptory instruction asked by counsel for appellant. See Geismann v. Missouri-Edison Electric Co., 173 Mo. 654, 73 S. W. 654; Ryan v. Railroad, 190 Mo. 621, 89 S. W. 865, 2 L. R. A. (N. S.) 777; Young v. Waters-Pierce Oil Co., 185 Mo. 635, 84 S. W. 929; Downs v. Telephone Co., 161 Mo. App. 274, 143 S. W. 889; Campbell v. Union Rys. Co., 174 U. S. 718, 19 Sup. Ct. 873, 43 L. Ed. 1147; Kile v. Light & Power Co., 149 Mo. App. 354, 130 S. W. 89; Braun v. Buffalo Electric Co., 200 N. Y. 484, 94 N. E. 206, 34 L. R. A. (N. S.) 1089, 140 Am. St. Rep. 645, 21 Ann. Cas. 370. II. The next assignment presented for a reversal of the judgment of the circuit court is stated by counsel for appellant in the following language: "Defendant was not bound to foresee that an experienced lineman and trouble man would use this new barren pole, not for the purpose of stringing or maintaining or repairing wires upon it, not for the use of any space reserved on it for his employer, but purely as a matter of convenience for the purpose of reaching away from it to untangle some of his compa ny's nearby wires." I have not quoted the last clause of this assignment for the reason that it goes to the question of contributory negligence, which was fully considered in paragraph 1 of this opinion, and no good purpose would or could flow from a restatement of the proposition or to rediscuss the same. that the same carelessness of the appellant This contention of counsel for appellant shows how completely they misapprehend the purposes for which the original poles were erected by the city, the rights regarding them by the respective companies using them, as well as their rights to the new or substitut-versal is thus stated by counsel for appellant: ed poles in consequence of those rights, and the relative duties they owed each other and their employés on that account. As previously ruled, each and all of the parties using the poles had equal rights to the use thereof for all of the purposes mentioned in their respective licenses, which, of course, included the right to place in position crossarms and the stringing of wires thereon, and to use the poles for the purpose of repairing the cross-arms and wires and for all other purposes that were or might become necessary to keep them in proper operation. These same rights and duties attached to the new poles; and when the appellant acted under its license to remove an old pole, and insert a new one, the same rights and duties of the respective parties attached to them that related to the old ones. "(a) It bases plaintiff's right to use the new pole for the purpose of mere convenience, for which he used it, on the right of his company to use space on the old poles for other purposes; that is, for stringing and maintaining its wires. sential issue in the case. (b) It omits all reference to an esPlaintiff charged specific negligence, to wit, that defendant's wire, in a dangerous condition, was allowed to be and remain on the iron step from the date of the erection of the pole to July 12, 1907, the day of the accident. The instruction permits a verdict for the plaintiff if the jury should find merely that the wire was in contact with The instruction authorized a verdict for plainthe step at the moment of the accident. (c) tiff if the jury believed that the insulation on defendant's wire was inadequate and insuffiof negligence in the petition is that the wire cient for any cause; whereas the specific charge was dangerous because it had been, by long use, neglect, and by the force of the wind and weather, permitted to become decayed, worn, and disintegrated, so as to expose said deadly current in said wire and permit the same to escape to the said iron step or handhold in said pole," etc. With these observations in mind, it should be remembered that not only was appellant's wire detached from the old pole, and left dangling in the There is not an element of this objection air in the vicinity of the new pole, but which has not been fully considered and dethose of the Kinloch and the Western Union termined by us in paragraphs 1 and 2 of this were likewise detached and left unsupported; opinion when passing upon the demurrer to and, while there is no direct evidence bear- the respondent's evidence and the peremping upon the question, yet it is clearly infer- tory instruction asked by counsel for appelable from all the facts and circumstances lant, telling the jury to find for the latter. detailed in evidence that the "trouble" with If the conclusions there announced were the Kinloch wires, the ones respondent was correctly drawn, then the objections here sent out to locate and remedy, was caused made to this instruction are without merit. by the same carelessness and negligence But, in passing, I wish to reiterate in this that caused the appellant's wires to swing to connection that, while the petition charged and fro in the strong wind the night before that the insulation of the light wires was and become entangled with the iron hand-old and decayed, and on that account was hold. In other words, I am fully satisfied insufficient to confine the current of elec |