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Counsel for appellant go so far as to con- | not true, but also that there was no rule protend that, even though the high-voltage wire mulgated by the Kinloch Company requiring was insulated with the best insulation known the respondent, or any of its employés to to science and used in the commercial world, wear rubber gloves while performing the still the respondent in this case was not en- services for which he was engaged. That is titled to a recovery, for the simple reason true not only of the Kinloch Company, but that he did not use rubber boots or rubber is true of all other companies engaged in gloves, etc., in making the repairs on the Kin- similar business. Not only that, the great loch wires mentioned in the evidence, and weight of the evidence introduced by both for that reason alone the court should have the appellant and respondent almost condeclared as a matter of law that the respondclusively shows that none of the employés of ent was not entitled to a recovery. A com- the Kinloch, nor of any of the other compaplete answer to that contention is the record nies mentioned, ever wore rubber gloves in nowhere shows that respondent was injured the performance of the duties the respondby reason of a high and low voltage wire ent was engaged in when injured. I am coming in contact with the iron handhold of therefore clearly of the opinion that there the pole upon which the respondent was as- is absolutely no merit in this element of apcending. However, we will not let the case pellant's contention of contributory negliturn upon this narrow, though solid, point, gence. but will meet the proposition as presented by
It is next insisted, along this line, by councounsel for appellant. That insistence is sel for appellant, that the respondent is not more plausible than sound, for the reason entitled to a recovery in this case for the that if it be true, as counsel for appellant reason that he was guilty of contributory contend, and as some of its evidence tended negligence in that he should have seen, and to prove, that there was no insulation known would by the exercise of ordinary care have to science which would render wires of high | seen, the sagged condition of its wire and its voltage free from danger to those who came contact with the handhold on the pole, had in contact with or handled them, and in the he exercised ordinary care in looking out same breath insist with greater zeal that if for his own safety; that is, since he was respondent had only used rubber gloves or looking for trouble along the wires of the rubber boots in making the repairs mentioned, Kinloch Company, which he was required to then all danger to him would have been com- adjust, he should also have looked for any pletely removed, and that he not only would and all defects that existed along the lines not, but could not, have sustained the inju- of the appellant, and of course, by parity of ries complained of. The plain fallacy of reasoning, those of the city of St. Louis and counsel's position consists in the contention Western Union Telegraph Company, all of that science has discovered no insulation whose wires (at least 25 in number) were which can perfectly insulate a wire of high strung upon this same line of poles, and that, voltage and thereby render the handling of having failed to perform this slight duty the same noninjurious, yet in the same (which it seems from the record the appelbreath insist that science has, by a compara- lant never did, but depended wholly upon the tively inexpensive device, produced a rub- police and the good citizens of the city of ber glove which, when worn, will completely St. Louis to perform that duty for it), he remove all danger to those who handle such was not entitled to a recovery, and that it wires with such rubber gloves. It does not was the duty of the trial court to have so arise to the height of respectable nonsense to instructed the jury, and that, having failcontend that science can and has so insulat- ed to so do, it now becomes the duty of this ed the hand so as to make it safe for one to court to do that which the trial court errohandle a wire of high voltage, and then in neously refused to do. With all due deferthe next breath insist that science has not ence to the opinions and learning of my and cannot insulate a similar wire with a Associates who entertain different views, I similar substance with like results. More- am firmly and unalterably of the opinion that over, that contention is in direct conflict the evidence in this case does not show that with common observation and is disproved the respondent was guilty of such contribuby common knowledge. If it was not for tory negligence that required the court to the perfect insulation of wires carrying high declare, as a matter of law, that he was not voltage, or for some other equally protective entitled to a recovery. The importance of system, such as are thrown about trolley this case does not stop with the poor unforwires, how long would any or all of the great tunate who was so frightfully injured by the cities of this and other countries exist? I gross negligence of the appellant, but it cuts dare say that should all insulation be deep and to the very quick of the duty of removed from all such wices, but few of those who handle this insidious and deadly such cities would survive the night. But in- tiend. And, in passing, the fact should dependent of all that, the great weight of not be overlooked that the public has no acthe evidence in this case, as previously set cess to the generating or distributing agenforth in the statement of the case, shows cies of this highly useful, yet deadly; serythat this contention of appellant is not only ant when unharnessed, and for this reason
no one is in a position to protect himself or they saw it all other prudent persons walking herself against its lurking and deadly stroke, by or climbing the pole would also have nobut must depend for their safety upon the in- ticed the position of the wire? It should be telligence and the high degree of care the added that one of these had his attenlaw has so wisely imposed upon those who tion previously called to the fact that are granted the privilege of handling the the light wire or some power wire was out same and furnishing it to the public. For of condition, and that he was on the lookthis reason all of the authorities agree that out for it when he discovered its conthe degree of care required of such com- tact with the iron handhold, while the repanies must never be reduced, lessened, or spondent had no such warning of danger. lowered.
The conduct of this witness, with such noReturning to the question of contributory tice, should not constitute the rule by which negligence: Can it be declared as a matter the conduct of respondent should be judged of law that, because the respondent failed when he had no such notice whatever. to see that the light wire was in contact with Again, this record does not disclose the po the iron handhold, he was guilty of such sition of these two witnesses when they obcontributory negligence that he was not en served the condition of the light wire and titled to a recovery? I think not. It should the iron handhold, which was only a few be borne in mind that the negligent act com- inches from the pole. It cannot be said as a plained of on the part of respondent was one matter of law that the respondent occupied of omission and not of commission, which is the same favorable position for observation never treated with the same gravity as the that they did. A person standing on the latter. He simply failed to see a defective south side of the pole looking for danger and dangerous condition in appellant's wires, from the light wire, as one of these witnesses which was the result of the negligent acts was, would be more likely to observe what of commission on the part of appellant, for they saw than another would, though equalthe existence of which he was not required ly prudent, standing on the other side of the to anticipate or look for, except, of course, in pole, anticipating no danger, especially wh so far as it was his duty to look out for his there were so many wires strung thereon, own safety. And that brings us to the legal detracting attention from the particular one proposition, Was that defect so apparent or in question. obvious that the law will declare that a rea This record also discloses that two other sonably prudent person, looking out for his witnesses apparently as intelligent, prudent, own safety, would have seen that dangerous and as disinterested as the two previously condition? In this connection it should also mentioned, the first to reach the pole after be remembered that respondent had the legal the respondent received the shock did not right to presume, and to act upon the pre- see or notice the contact between the light sumption, that the appellant had properly wire and the handhold which caused reguarded its wires when it removed the old spondent's injury. One of them saw the pole and inserted the new; also that it had burnt place on the pole just above the handproperly insulated its wires, both of which hold, but did not notice the contact between the uncontradicted evidence shows it had not the two. Can it also be seriously contended done. The law should and always does, in that these two gentlemen were guilty of negconsidering the acts of men, give due weight ligence as a matter of law for their failure to the facts and circumstances surrounding to see the contact between the light wire and them, and which naturally influence their the iron handhold? I think not, for the conduct at the time; and, under this rule, the simple reason that one person viewing an obfailure of respondent to discover the contact ject from one viewpoint and another from a between the appellant's wire and the iron different one will naturally see small parts handhold on the pole after thus having doubly thereof, which the other never saw and could assured him of his safety, should not be de- not have seen from his viewpoint. clared negligence as a matter of law. He As previously stated, the respondent was had the right to rely upon the presumption under no legal or moral obligation to investithat appellant had performed its duty in the gate the condition of appellant's wires; that regard mentioned, especially after having ex- he had the right to assume the appellant amined the cable box and ascertaining there had performed its full duty in protecting him in that the Kinloch wires, the ones he was and the public from all danger 'incident to inspecting, were free from contact with all this valuable servant, when properly bridled light and power wires. This again diverted but a most powerful agency of destruction to respondent's attention from the light wires, life and property when not properly harnessand lulled him into a sense of security from ed; that its wires and new poles placed in poall danger from that source.
sition by it were in a safe and proper position While it is true two witnesses after the and condition; and that he would be in a accident had occurred, while standing on the state of safety in performing his duties as an ground near the pole, saw the light wire was employé to the Kinloch Company. Under in contact with the iron handhold, but can these conditions I again ask the question, can it be said as a matter of law that because it be declared as a matter of law that the re
spondent could not approach the pole men In treating of this very question, 29 Cyc. tioned as a reasonably prudent person, and | 631, states the law in this language: ascend the same in the usual manner, by, usu "Whenever it is necessary to determine what al means, for the purpose of repairing the a man of ordinary care and prudence would be trouble he was sent out to find, which was on likely to do in the emergency proven, involving, the north side of the pole, without seeing or it can only be settled by a jury.”
as it generally does, more or less of conjecture, observing the contact of the light wire with the bandhold on the south side of the pole?
Frantz v. Citizens' Electric Co., 231 Pa. 589, The answer must be, yes. Out of the five wit | 80 Atl. 1106, decided by the Supreme Court nesses, including the respondent, who examin- of Pennsylvania, May 11, 1911, is in point.
The court said: ed the situation just after the injury occurred, but one of them, without warning, notic-low committed error in `not declaring as a mat
"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 hold. 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 neg. dent person among the five? Laws are made ligence were submitted to the jury in a charge for the government of the people as they ac- by either.
fair to both parties and free from just criticism
No complaint is made as to the tually exist, and not solely for the paragon manner in which the questions were submitted, of perfection in any line or conduct. That may but it is argued with force and ability that be an ideal state to work to, but all such laws the decedent was so clearly guilty of conwould afford but little protection to the ordi- trial judge to so declare as a matter of law.”
tributory negligence that the duty rested on the nary man or woman now living, and would be of no use to the paragon, for the simple rea
The court then proceeds to state the ground son his conduct would need no legal control. 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 as he ascended the pole, and, if he had done
that it was the duty of the lineman to look up upon the handhold. He so testified, and he so, he would liave 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 dan. dicted that the wire which injured respond- damages for injuries resulting from his own
ger, and then hold the master answerable in 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- that the decedent recklessly and heedlessly came
in contact with the defective wire which caused 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 va this 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
pole. He was an employé of the telephone
company, and not of the appellant company. 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 To the same effect is the case decided by pole from him, and within eight or ten inch- the Springfield Court of Appeals, Trout v. es of it. That the evidence made out a case Gas Light Co., 151 Mo. App. 227, 229, 231, 132 of contributory negligence for the jury I have S. W. 58. It was argued in that case, as here no doubt, but to say that his conduct was that the danger was obvious, and that, as negligence as a matter of law, I deny; and plaintiff had climbed the pole before, he could no authority has been cited nor can be found have seen the dangerous condition if he had so holding.
| 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.
fore it struck him, or could have seen it by The Supreme Court of Minnesota, in Musolf the exercise of ordinary care. This court rev. Duluth Edison Electric Co., 108 Minn. fused to declare that as a matter of law there 374, 122 N. W. loc. cit. 501, 24 L. R. A. (N. S.) could be no recovery, but held that the ques461, said:
tion of contributory negligence was for the “The jury found that the death of the de- jury. The court said (215 Mo. loc. cit. 413, ceased was not caused by his own negligence. 114 S. W. 1062): No considerations have appeared in the record
“The evidence shows that if the gates had which would justify us in holding, that as a been open when he was coming down the stairmatter of law deceased knew of the defective insulation of the wires.
way, he would have seen them if he had looked,
He had the right to and it also shows that he did not look, but that rely upon the performance of its duty by defendant. He was not bound to anticipate de- with his mind on the cattle, leaning over the
on the contrary he came down the stairway fendant's negligence.”
railing, with his face turned south. If the This court in Von Trebra v. Gaslight Co., plaintiff saw the gates open, he was guilty of 209 Mo. loc. cit. 662, 108 S. W. 562, used this negligence in not taking care to avoid comlanguage:
ing into collision with them; but the testimony
is that he did not see them, Was he negli“While it is true there is evidence in this gent because he did not look in that direction record which might have warranted the jury in as he came down the stairway? As a general finding he was guilty of contributory negligence, rule, a man is not required to look for danyet they did not do so. That was an issue ger when he has no cause to anticipate danwhich could be only determined by the jury. ger, or when danger does not exist except it It was properly submitted to them, and they be caused by the negligence of another (citing found against appellant, which is conclusive authorities). That is the general rule; and, upon this court.'
whilst there may be some exceptions, yet there The same principle was involved in Buesch- is nothing in this case to take it out of the gen
eral rule. ing v. St. Louis Gaslight Co., 73 Mo. loc. cit. indicate that plaintiff bad any reason to antici
There is nothing in the evidence to 230, 39 Am. Rep. 503. The court said:
pate that these gates might be open.” “Taking it for granted, then, that Buesching
This rule was also applied in Russell v. fell into the opening, or, what is tantamount thereto, that there is testimony from which City of Co mbia, 74 Mo. 480, 41 Am. Rep. that fact could be found, the next question is, 325. See, also, Langan v. Railway Co., 72 is there evidence on which a jury should be No. 392. permitted to find that at the time of his fall the deceased was in the exercise of ordinary
The record in this case presents a much care? The argument of defendants' counsel is stronger case for the respondent than do any that if the deceased saw this entrance, he was of the cases cited. Here the respondent was negligent in not avoiding it. If he did not see where he had the right to be; he examined the it, he was negligent in not looking, as it was in plain view and well known to him, and had cable box and found the Kinloch wires, the been for years before."
ones he was inspecting, were free from conThe court, further along in the opinion (73 tact with any high-voltage wires; he observed Mo. loc. cit. 232, 39 Am. Rep. 503) said:
the poles and wires of all the companies in a “The argument for the defendants, then, with general way, but noticed no defect of any the element of previous knowledge eliminated, kind; he did not know of the contact between stands thus: As the opening was not con- the appellant's wire and the handhold; he cealed, but was obvious to the sight, the de: had no notice of appellant's negligence in failceased was guilty of negligence if he did not see it, and if he did see it, he was guilty of ing to secure its wires to the cross-arms on negligence in not avoiding it. These proposi- the new pole; he had no intimation of dantions stated abstract
, which must, if true, obtain in all cases, and ger lurking about him, and had no special ocnot in this case only, for the circumstances casion for being on the outlook for same, and under which Buesching failed to see the cellar- that appellant's wires were not properly inway, or seeing it, failed to avoid it, are not sulated for the purpose they were being used, shown by the testimony. These propositions, which was known by it, but unknown to the then, if they are true, and mean anything as applied to this case, that Buesching respondent. These facts are practically unshould, no matter what the circumstances sur disputed, but whether they are or not is wholrounding him at the time, have seen the hole ly immaterial, because the jury found them into which he fell, and, seeing it, should, no matter how great the difficulty of so dóing, to be true upon an abundance of evidence, have avoided it. If such be the law, it is quite which for the purpose of the demurrer in this plain that there never could be a recovery for case is the same as though they were undisan injury occasioned by an obvious defect in puted. So under the authorities previously a highway. But such is not the law. The law is that the deceased was guilty of negligence cited, as well as those to be presently menif he did not see it, provided he would have tioned, I am fully satisfied that the evidence seen it by exercising ordinary care.”
made a prima facie case for the jury, and Crawford v. Stockyards Co., 215 Mo. 394, that the trial court properly refused the de114 S. W. 1057, was a suit for personal in- murrer to the evidence and the peremptory juries suffered by the plaintiff while on some instruction asked by counsel for appellant. cattle cars that came in contact with open See Geismann v. Missouri-Edison Electric Co., gates extending out over the platform at the 173 Mo. 654, 73 S. W. 654; Ryan v. Railroad, stockyards. It was urged that a recovery 190 Mo. 621, 89 S. W. 865, 2 L. R. A. (N. S.) could not be had because of plaintiff's con- 777; Young v. Waters-Pierce Oil Co., 185 Mo. tributory negligence, which consisted in the 635, 84 S. W. 929; Downs v. Telephone Co.,
161 Mo. App. 274, 143 S. W. 889; Campbell v. that the same carelessness of the appellant Union Rys. Co., 174 U. S. 718, 19 Sup. ct that caused its wire to sag and rest upon 873, 43 L. Ed. 1147; Kile v. Light & Power the iron handhold of the new pole also causCo., 149 Mo. App. 354, 130 S. W. 89; Brauned the trouble with the Kinloch wires that v. Buffalo Electric Co., 200 N. Y. 484, 94 N. respondent was sent out to locate and repair, E. 206, 34 L. R. A. (N. S.) 1089, 140 Am. St. namely, the removal of the old pole and the Rep. 645, 21 Ann. Cas. 370.
appellant's negligence in not connecting its II. The next assignment presented for a and the wires of the city and the other com. reversal of the judgment of the circuit court panies mentioned to the new pole inserted by is stated by counsel for appellant in the fol. it. Is it any wonder that those 25 or more lowing language:
wires, left swinging and dangling on a “Defendant was not bound to foresee that an stormy night, should become entangled with experienced lineman and trouble man would use this new barren pole. not for the purpose of one another and come in contact with the stringing or maintaining or repairing wires pole erected in their midst without crossupon it, not for the use of any space reserved arms, stays, or barriers of any kind to hold on it for his employer, but purely as a matter wires in place? I think not; and to hold of convenience for the purpose of reaching that under the evidence preserved in this away from it to untangle some of his company's nearby wires."
record the jury was not warranted in so I have not quoted the last clause of this finding, which evidently they did, would be assignment for the reason that it goes to to accuse them of being deficient in that the question of contributory negligence, intellectual quality which enables men to which was fully considered in paragraph 1 of draw correct conclusions from known causes. this opinion, and no good purpose would or They found, and correctly so, that this whole could flow from a restatement of the propo- trouble to both the wires of the appellant sition or to rediscuss the same.
and those of the Kinloch, as well as the inThis contention of counsel for appellant jury of the respondent, was caused by the shows how completely they misapprehend the inexcusable and gross negligence of the appurposes for which the original poles were pellant. This contention of appellant is unerected by the city, the rights regarding them tenable, and should be and is overruled. by the respective companies using them, as
III. The third error assigned for a re 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
“(a) It bases plaintiff's right to use the new the relative duties they owed each other and which he used it, on the right of his company
pole for the purpose of mere convenience, for their employés on that account. As previ- to use space on the old poles for other purously ruled, each and all of the parties us- poses; that is, for stringing and maintaining ing the poles had equal rights to the use sential issue in the case.
its wires. (b) It omits all reference to an es
Plaintiff charged spethereof for all of the purposes mentioned in cific negligence, to wit, that defendant's wire, their respective licenses, which, of course, in a dangerous condition, was allowed to be included the right to place in position cross- and remain on the iron step from the date of arms and the stringing of wires thereon, and day of the accident. The instruction permits
the erection of the pole to July 12, 1907, the to use the poles for the purpose of repairing a verdict for the plaintiff if the jury should the cross-arms and wires and for all other find merely that the wire was in contact with purposes that were or might become neces. The instruction authorized a verdict for plain
the step at the moment of the accident. (c) sary to keep them in proper operation. tiff if the jury believed that the insulation on These same rights and duties attached to the defendant's wire was inadequate and insuffinew poles; and when the appellant acted un- of negligence in the petition is that the wire
cient for any cause; whereas the specific charge der its license to remove an old pole, and
was dangerous because it had been, by long insert a new one, the same rights and duties use, neglect, and by the force of the wind and of the respective parties attached to them weather, permitted to become decayed, worn, that related to the old ones. With these ob
and disintegrated, so as to expose said deadly
current in said wire and permit the same to servations in mind, it should be remembered escape to the said iron step or handhold in said that not only was appellant's wire detached pole,' etc. 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 de those 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