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tricity to the wires, and that by reason , and not that the public should exercise that thereof the same escaped therefrom and in care for the benefit of the person so engaged. jured the respondent, and that while there The public has no knowledge or control of a was practically no evidence introduced tend business of that character, and but few ining to show that the insulation was old or dividuals have any knowledge of the dangers decayed, yet all the evidence introduced by incident thereto, and no individual has any both parties shows conclusively that the power or authority to control the business insulation was wholly insufficient for the or to regulate or lessen the degree of danger purposes for which it was being used, which incident to its operation. Under those facts was the ultimate fact in issue, regardless of it would be highly unjust and oppressive to the cause. The appellant not only conceded all should the law impose that high degree of its insufficiency, but its superintendent tes- care upon the public, and by that indirect tified that there was no insulation known method relieve or lessen the duty of the apby which such wires could be perfectly insu- pellant, and all other persons and comlated. So as previously stated, it is wholly panies similarly situated, which they owe immaterial from what source the insuffi- to the public. Every person in every walk ciency arose, under the state of the pleading, of life must exercise ordinary care for his provided appellant was not misled thereby. own safety, and every person and cori ration The question presented by the pleadings was, engaged in an extrahazardous and dangerous Was the insulation sufficient to protect the business must exercise a corresponding high respondent from injury? The respondent degree of care to protect the public from charged that it was not, and the appellant all dangers incident thereto. This is eleanswered that it was. The cause of the mentary, and is the recognized law the world insufficiency was wholly immaterial, since the

The trial court modified said instrucevidence for both parties conclusively shows tion numbered 3, and told the jury that rethat fact was true, and that of appellant spondent was required to exercise ordinary went one step further and tended to show care for his own safety while performing that no such insulation was known or could his duties for the Kinloch Company at the be manufactured. There is no merit in any

time he was injured. We are therefore clearof these objections, and they are disallowed. ly of the opinion that the instruction as asked [6] IV. It is next insisted by counsel for modified and gave the same in the modified

was erroneous, and that the court properly appellant that the trial court erred in refusing instruction numbered 3, asked by them, form. There is no merit in this insistence.

[7] V. The correctness of the instruction on and giving it in a modified form. The instruction as asked declared the law to be the measure of damages is challenged for the

reason thus stated : that because the appellant was engaged in a highly dangerous and extrahazardous busi- tion No. 11 on the measure of damage. The

“The court erred in giving plaintiff's instrucness, and that on that account the law impos- petition alleged plaintiff's earning capacity at ed upon it the duty to exercise a very high $100 per month, and averred that he had lost degree of care to make its wires, etc., reason

and would continue to lose this amount monthly.

The instruction in no wise limited the jury in ably safe to those who, in the performance any award they might choose to make plaintiff of their duties, might be brought in contact on this account for such loss." with them. The theory of counsel is that There is no merit in this contention. The because the law imposed this high degree of petition somewhat minutely stated the varicare upon the appellant, it should also impose ous elements of damages sustained, but did a correspondingly high degree of care upon not undertake to state the amount of each, the respondent to look out for his own safe- but after this enumeration the petition statty when working about or being in the vicin- ed generally that respondent was damaged ity of its wires. There is absolutely no in the sum of $35,000, and prayed judgment merit in this insistence. It was the appel- therefor. Good pleading requires the injured lant that was engaged in the extrahazardous party to state his earning capacity, etc., but business, and not the respondent. The latter the law does not require the pleader to ask had nothing more to do with the former's a separate finding on each element of the business than a member of this court has; damage; and there is no more reason for he was not even an employé of the appellant. requiring a separate assessment on the loss It might just as well be said that because a of earnings than there is for a separate ascommon carrier of passengers is required to sessment upon each and all of the other exercise this high degree of care, therefore elements stated. This contention is wholly the passenger must also exercise the same without merit. high degree of care. There is no reason or [8] VI. It is lastly insisted that the verdict sound policy involved in such a contention. is excessive. The verdict was for $22,500, but The theory of the law is that when a person the court required the appellant to enter a engages in any hazardous business, and remittitur of $1,500, reducing the verdict to especially one for private gain, he must use $18,000, and then rendered judgment therethat degree of care which is commensurate on. There is no question but what this is a with the high degree of duty the law im- large judgment, much above the average; poses upon him to protect the public from but it should be borne in mind the injuries the great dangers incident to that business, sustained in this case are also far above the

average injuries involved in the ordinary, places to look and see-one on the ground, lawsuit. This is not a case where the prover-before starting to climb—one on the pole bial invisible weak back, stiff joints, loss of while climbing. The question, then, splits in manhood, injury to some vital organ, etc., twain and becomes two, to wit: First, was was presented to a jury for determination; plaintiff while on the ground guilty of conbut it is a case where the terrific force of tributory negligence as a matter of law, in not 2,300 volts of electricity poured through the using ordinary care to see (or in not seeing) body of respondent for several minutes, and the contact of the sagging high-voltage wire left its visible and undoubtable evidence of with the iron spike he must use as a handthe frightful effect upon respondent. Both hold or step toward the top of a pole, say, 40 hands were practically burned off, besides feet high? Second, or was he so guilty in not he received other severe injuries, and the seeing such contact while climbing the pole? physical pain and mental anguish sufferea As to the first, to say that ordinary care by him is beyond description, and the suffer- | (as a matter of law) requires a man on the ing he will have to endure in the future is ground to see the contact of a high-voltage equally appa rent. Respondent was 20-odd wire with an iron spike at the top of a pole years of age, earning about $100 per month 40 feet high, will not do. That would be exprior to his injury, and since then about traordinary, not ordinary, care. Many men $35 to $40, and his life expectancy was 3513 might have many minds on whether he could years. The net loss in his wages up to this or should. Hence, the question was for the date has been about $4,000, and should he jury on that phase of it. Especially so, as he live his allotted time, 35 years, his loss in had no warning of trouble in general or of that regard will have amounted to more than trouble of that kind, but was warned and had $20,000, a sum in excess of the amount of found the trouble he was looking for, to wit, the judgment. Should we add to this his dis- two harmless wires entangled or crossed. figurement, physical pain, and mental anguish As to the second, the situation is even more suffered and to be suffered by him, it would favorable to plaintiff. No court should say, be much larger, since, however, he has ex- I think, that a man climbing a pole and uspressed a willingness to accept $18,000, it ing ordinary care is bound (as a matter of seems to me that the appellant has no sub- law) to see the contact of that wire with a stantial reason to complain along that line. spike on the other side of the pole. To say

I know of but two cases where the injuries so means that a climbing man must look up received were more frightful than were those the pole, down the pole, and around the pole sustained by the respondent in this case. at every instant of time. Now a man being Those cases are Clark v. Ry. Co., 234 Mo. a sitter or walker, is not a natural pole climb396, 137 S. W. 583, and Corby v. Telephone er, and at ease in climbing like a squirrel or Co., 231 Mo. 417, 132 S. W. 712. While the monkey. Contra, a man climbing a pole has injuries in those cases were greater than troubles incident to the fact that he belongs those received by respondent, yet the judg- to the genus homo, sapiens, and his native ments therein were proportionately larger. home is on the ground, i. e., he has troubles

For these reasons I believe that the judg- of his own to look out for. Any one who ever ment of the circuit court should be aflirmed. climbed a tree knows that his feet, legs,

arms, hands, body, all demand and divide his LAMM, C. J., and WALKER and BROWN, attention. So the danger of falling not only JJ., concur; BROWN, J., in result and LAMM, makes some fear natural, but makes a call C. J., in an opinion, in which WOODSON, on his mind. To say plaintiff must look BROWN and WALKER, JJ., concur, and around the pole every time he reaches round GRAVES, J., dissents in a separate opinion, it to grasp a spike on the other side (to see if in which FARIS, J., concurs; BOND, J., lightning won't strike him when he touches dissents in separate opinion.

it) is to demand an unusual thing—an extraor

dinary care, it seems to me. Naturally, LAMM, C. J. (concurring). My vote is to then, my conclusion is, it was for the jury to concur because: The following propositions

speak the final word. The jury did, and I

rest content. gather head and must be admitted on this record: First, defendant was negligent; second, plaintiff had the right, nay, was invited

WOODSON, BROWN, and WALKER, JJ., to climb the pole; third (stripped of specu- concur in these views. lative embroidery), on last analysis the turning question is: Was plaintiff guilty of con GRAVES, J. (dissenting). I cannot contributory negligence as a matter of law? The cur with my learned Brother in the affirmrule is: If there can be no two ways about it ance of this judgment. I think the plaintiff's among reasonable persons of average intelli- own negligence bars his action. His very gence but that he was, then the question was duties (those of a "trouble man" among wires) for the court, but if there can be different required of him alertness. He was advised views entertained by reasonable persons of of the situation. He knew that there had average intelligence then the question was for been a windstorm and wires were apt to be the jury.

misplaced. In fact this was one of the Now, plaintiff had two points of view—two "troubles" in the line of his work. He knew

that the line of poles was occupied by more received the shock which caused the injuries than one company. He knew that wires of sued for. the defendant carried a deadly current. He There was not a particle of proof to susknew that by wind or otherwise such wires | tain the allegation of defective insulation of might become displaced. When he reached the wires of the defendant prior to the accithis pole in question he knew, or might have dent. The pole had been erected for about known by the exercise of reasonable care, a month, and was not, as yet, supplied with that the wires had not been strung thereon, cross-arms for the support of the wires, although the pole stood up in the midst of which were to be placed thereon when the them. He knew that there were iron hand-old pole, some distance off, should be reholds or steps thereon, because he was using moved. There is no evidence whatever, of them. He knew that the deadly ladened wire any right given to the other company, of of the defendant ran by that pole, and that which plaintiff was the employé, to use the it had not been fixed to a cross-arm so as to pole in question until it should be equipped keep it in place. His experience taught him with cross-arms in order to support the that if a wire of high voltage was in contact | wires it was intended to bear, nor that dewith the iron steps, and his hand was placed fendant could reasonably foresee the inciupon the iron step, he might be burned. The dents culminating in the injury to plaintiff, steps and the wires were there in plain open who at the time of the accident was a trouble view. To look was to see them. The plain man sent out to discover and remedy some physical facts cannot be wiped out by eva- mishap to the lines of the Kinloch Company, sive testimony. Kelsay v. Mo. Pac. Ry., 129 which was his employer. This utter dearth Mo. loc. cit. 376, 30 S. W. 339. Had plaintiff of evidence to show any negligence on the looked as he proceeded up this pole, this part, of defendant is the only reason why I case would not be here; he would not have am constrained in the present state of the been injured. When the evidence from all law to dissent to the opinion adopted by the sides, as here, discloses a situation of physi- majority of the court affirming a judgment cal facts, we must measure care or want of obtained by plaintiff. But I am not willing care by those facts. We cannot blind our to concede that the right to recover for an eyes to them and admeasure rights. The con- injury suffered in hazardous industry, should dition of this pole was in plain view. As

any longer be predicable only upon proof of plaintiff went up the pole, had he looked at negligence on the part of the owner. I each step before touching it, the trouble think that stage in the evolution of the law would have been averted. The pole stood has now been passed, and that the adminisamong these wires, and this he knew. The tration of justice should no longer be obsteps were there, and the slightest care upon structed by the outworn legal concept, which his part as he approached the wires in his as- refuses all compensation for injuries caused cent would have discovered the contact of by work necessary to social betterment except the wire and the iron step. Under the ad- upon proof of causative negligence on the mitted and undisputed facts the negligence part of the employer. of the plaintiff bars his action, and the trial The multitude and mischief of cases like court should have so said. The judgment the present demonstrate, in my opinion, the should be simply reversed.

imperative need in our positive law of an en

actment embodying the principle of workingFARIS, J., concurs in these views. men's compensation. Bailey, Per. Inj., vol.

2, 88 858, 859. The economic and social reaBOND, J. (dissenting). The negligence al- sons demanding such a làw are universal leged in the petition was that the injury among the civilized nations of the world, occasioned to plaintiff by climbing a bare where industrialism has reached a developpole containing only spikes for footholds, ment and expansion undreamed of in the which had been erected by defendant pre-past. The moral life, comfort, and well-being paratory to its future use for supporting its of humanity to-day, not to mention its luxown wires and those of other companies uries, require the employment for utilitarian when cross-arms should have been attached purposes of the great bulk of the human race. thereto, was caused by the fact that defend Society demands the product of the labor of ant negligently permitted its defective in the men so employed. This imposes a corsulated wire to remain in that condition from relative duty upon it to provide compensation the time the pole was erected until the 12th for injuries caused by the perilous employday of July, whereby plaintiff, who was an ment it enacts of them as the wage of life employé of another company, and was as- and sustenance, and furnishes the moral cending the pole in order to reach and re- and economic reason for charging such emlease some of the wires which had been ployments with the payment of indemnity for crossed by other wires, and in so doing, and | injuries sustained by the men engaged in while reaching for the crossed wire with one them. The duty to see this done rests upon hand and feeling around the role with his the lawmaking bodies of the state and naknee to keep his balance, he placed his tion. The failure to exert that power is foot on one of the spikes on which the de- dereliction of sovereign duty on the part of fendant's said wire was then resting, and the state which, in its capacity as the refr

resentative of organized society, is intrusted y just to the employer, as well as the employé, with governmental power of regulation com- and have been sanctioned by the Supreme mensurate with the purpose for which it Court of that state. State ex rel. Davisexists. It is the absolute duty of the state, Smith Co. v. Clausen, 65 Wash. 156, 117 Pac. in virtue of its inherent power of police and 1101, 37 L. R. A. (N. S.) 466. Its general of internal regulation of the affairs of the features have been enacted in ten other people, to cause its statutory or positive law states of the Middle West including Illinois, to walk hand in hand with the principles Wisconsin, Michigan, and others. of social justice as they are evolved by the The state of Missouri should make similar growth and progress of civilized life. Such provisions for compensation for workingmen enactments can be made so as not to violate engaged in dangerous employments within any restriction imposed upon the lawmaking its borders. It can safely do so under the power by the state or federal Constitution. power intrusted to it by the Constitution Eleven states of the Union, and many of the and for the object and purpose proclaimed in most enlightened nations of the world, have its Bill of Rights. Const. Mo. art. 2, $ 4. incorporated the feature of workingmen's By taking this step it would accomplish a compensation as part and parcel of their mu- great act of duty and social justice, of nicipal law. This should be universally done which it has been said by the President of in the states of this Union, whose vast indus- the United States in his recent message to trialism, so far outstepping that of any oth Congress : er nation, creates a correspondingly greater “Social justice comes first. Law is the ma. reason for such legislation. There need be no chinery for its realization, and is vital only as it apprehension of failure on the part of the expresses and embodies it.” Message to Concourts to enforce these salutary laws if gress, December 2, 1913. they are framed with justice, fairness, and

No publicist has stated more clearly, comwisdom, and are properly guarded against pletely, and concretely, nor with more pith greater injuries to others than the mischief and power, the basic principle and true end they design to remedy. While the decisions of all laws devised for the well-being of orof the courts represent the fixed forms of ganized society. When that ideal is realized concentrated public opinion, yet they must society will pay the toll of injuries necesadapt themselves to any essential change of sarily inflicted to accomplish its needs, for the conditions upon which they rest, and each industry will add the expense of its they do meet and must reflect the stable liability to the reasonable profit earned in forms of economic and social science acquired its workings, and thus the burden will be in the progress of public thought. Borgnis shifted upon the community, where it should v. Falk Co., 147 Wis. 327, 133 N. W. 209, 37 rightfully rest. The particular employer L. R. A. (N. S.) 489; In re Opinion of Judges, cannot then complain that he has been mulct209 Mass. 607, 96 N. E. 308; Employers' Lib. ed for damages which were not caused by his Cases, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. negligence, for not he, but the public, will Ed. 327, 38 L. R. A. (N. S.) 44.

pay the price of the comforts and well-being While the Workingmen's Compensation Act accruing to it from the conduct of the needwas declared unconstitutional by the Courts

ed industry. of Appeals of New York, that conclusion was

While I dissent to the opinion in this case reached under the rigid rules applicable to because, in the absence of any proof of the state of the law as then expounded in negligence on its part no liability could be the rulings of the courts. But social purpose incurred by defendant under the law of the then moving, and never resting, has passed land, I have felt it my duty in so doing to beyond the stage of public opinion upon which point out to the people of this state and the ruling of that court was based, and an

their Legislature the duty resting upon other Legislature has enacted a new law them to amend that law so that the dangerfor the relief of workingmen. It does not ous occupation demanded by society shall be follow that the courts would now feel them charged with compensation for injuries causselves bound to apply to this new act, which ed by them, totally irrespective of their neglicrystalizes modern thought, the rulings which gent operation. were applicable to the simpler and earlier so. cial conditions from which they were de

On Motion for a Rehearing. duced.

WOODSON, J. The principal reason asIn the state of Washington, the Legislature signed by counsel for a rehearing is that the has enacted a just and wise scheme of pro- judge who wrote the majority opinion in the viding for its people whose living depends case misconceived the evidence regarding the upon the development of its industrialism. removal of an old pole and the substitution In a general way that scheme is a great of the new one mentioned in the evidence, as advance beyond the crude provisions contain-authorized by the permits set out in the stateed in the English Act of 1897. The Washing- ment of the case. It is contended in this moton statute has ramifications covering every tion that the record does not show that an old branch of industry. Its practical enforce- pole was removed, or that a new one was inment is lodged in the hands of an administra- serted instead thereof, but that the new pole tive board, its workings have been fair and was erected at a different place, some 30 feet

from where any of the old poles had then or statement to be understood to say that there formerly stood, and that none of the wires of are not many cases wherein both negligence the various parties mentioned had been at- and the nuisance were charged and proven, tached to the new pole.

but what I do mean to say is that I'know of [9] Conceding, for the sake of the argu- no case where the question has been raised ment only, that said contention is true, which which holds that negligence must be charged as a matter of fact I do not believe froin and proven in addition to the fact that a pubthis record to be true, yet the result must be lic nuisance caused the injury, and I dare the same as announced in the opinion here- say none such exists. And upon principle tofore handed down, for the reasons, first, and justice no person should be permitted to that if the new pole erected was not placed maintain a public nuisance and then say in the place of the old one authorized to be that he is not liable for the injuries which removed by the permits mentioned, then the naturally flow therefrom. This principle of new pole which caused the injury was a pub- law is so well and universally recognized, it lic nuisance (Cartwright v. Liberty Telephone would be a useless waste of time and labor Co., 205 Mo. 126, 103 S. W. 982, 12 L. R. A. to cite authorities in support thereof. (N. S.) 1125, 12 Ann. Cas. 249), which as a mat- [10] The second reason why the motion ter of law would render the defendant liable for a rehearing should be denied is that if for all injuries which would naturally flow the new pole was not erected in lieu of an therefrom, regardless of the question of negli- old one in pursuance to the permits issued by gence on its part. The law will not permit the city to the defendants, how could the a party to say that it is true he constructed plaintiff know that fact? There is no direct and maintained a public nuisance which in evidence bearing upon that point; but, supjured another, and he is not liable in damages pose there was, still the new pole was intendtherefor because the nuisance was constructed to serve the purposes of the old one, and ed and maintained even with the highest de- was subjected to the same uses and burdens gree of care and caution. In such cases the that it was, and the plaintiff had the same question of negligence does not enter into the right to use the new that he had to use the merits of the case, for the simple reason that old. This is self-evident. the establishment and maintenance of a pub- A third ground assigned for a rehearing, lic nuisance is a greater breach of the law which I take to be more facetious than serithan any act of negligence. If that was not ous, is couched in two questions, which will true, then any person could create or main- be presently quoted, regarding what we stattain as many public nuisances as he deemed ed in relation to the insulation of wires. proper, and thereby injure others every day, The questions referred to are as follows: yet escape all liability by saying that he used "Did the court stop to think that defendant the highest degree, or even due care in con- could not put rubber gloves on its wires ? That structing and maintaining them. In other

there is no such insulation for wires, because in

the wind and weather rubber would not last words, the construction and maintenance of at all, and therefore no such insulated wire public nuisances are within and of themselves can be bought?" acts of the most grievous violation of the Answering those questions not in the spirit law, much more so than any ordinary act of in which they were asked, but in a judicial negligence. The author of the former is not spirit, I will for myself state that I did not only liable for all damages that naturally think of the former question, nor do I agree flow therefrom, but he is also subject in to the result indicated by the two questions many cases to a fine and imprisonment there propounded. We proceeded upon the theory for; while in but few cases of negligence is that if a hand could be perfectly insulated one liable criminally therefor.

by rubber gloves, which require great skill This seems to be conceded by all of the au- and considerable cost to manufacture, then thorities without exception, in so far as I can by parity of reasoning a single wire could find. Counsel for relator in the case of be insulated much easier-as much so as one State ex rel. Excelsior Powder Manufactur-finger of a man could be insulated by one ing Co. v. Ellison, 168 S. W. 1174, the opinion rubber finger of the glove, and with no more in which was handed down by court in banc, than a tithe of the cost proportionately. on , 1914, seems to concede this to be And as to the wear suggested by the secthe law, and cites no authority to the con- ond question I naturally supposed a wire intrary, but attempts to escape liability upon sulated and hanging upon the cross-arms of the ground that a railway is not a public high- the poles, though exposed to the wind and way within the meaning of the ordinary public weather, would certainly last as long as a road or highway of the counties and state. rubber glove which is equally exposed to

I have made quite an extensive examina- wind and weather, and also constantly comtion of this question, and I have been unable ing in violent contact with the wires, poles, to find a single authority to the contrary, and cross-arms, tools, and various other instruupon the contrary I have been unable to find mentalities used by the “trouble men” in ada single case of this character where the law justing and making the thousand and one rerequires the plaintiff to go further than to pairs that are necessary to be made upon plead and prove that the injury was caused these great electrical systems of wire overby a public nuisance. I do not mean by this hanging our cities. This is upon the same

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