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 corporation 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 This is eleall dangers incident thereto. answered that it was. The cause of the mentary, and is the recognized law the world over. The trial court modified said instrucinsufficiency was wholly immaterial, since the evidence for both parties conclusively shows that fact was true, and that of appellant went one step further and tended to show that no such insulation was known or could

be manufactured. There is no merit in any of these objections, and they are disallowed. [6] IV. It is next insisted by counsel for appellant that the trial court erred in refusing instruction numbered 3, asked by them, and giving it in a modified form. The instruction as asked declared the law to be that because the appellant was engaged in a highly dangerous and extrahazardous business, and that on that account the law imposed upon it the duty to exercise a very high degree of care to make its wires, etc., reasonably safe to those who, in the performance of their duties, might be brought in contact with them. The theory of counsel is that because the law imposed this high degree of care upon the appellant, it should also impose a correspondingly high degree of care upon the respondent to look out for his own safety when working about or being in the vicinity of its wires. There is absolutely no merit in this insistence. It was the appellant that was engaged in the extrahazardous business, and not the respondent. The latter had nothing more to do with the former's business than a member of this court has; he was not even an employé of the appellant. It might just as well be said that because a common carrier of passengers is required to exercise this high degree of care, therefore the passenger must also exercise the same high degree of care. There is no reason or sound policy involved in such a contention. The theory of the law is that when a person engages in any hazardous business, and especially one for private gain, he must use that degree of care which is commensurate with the high degree of duty the law imposes upon him to protect the public from the great dangers incident to that business,

tion numbered 3, and told the jury that respondent was required to exercise ordinary care for his own safety while performing his duties for the Kinloch Company at the ly of the opinion that the instruction as asked time he was injured. We are therefore clearwas erroneous, and that the court properly modified and gave the same in the modified form. There is no merit in this insistence.

[7] V. The correctness of the instruction on the measure of damages is challenged for the

reason thus stated:

tion No. 11 on the measure of damage. The "The court erred in giving plaintiff's instrucpetition alleged plaintiff's earning capacity at $100 per month, and averred that he had lost and would continue to lose this amount monthly. The instruction in no wise limited the jury in any award they might choose to make plaintiff on this account for such loss."

There is no merit in this contention. The petition somewhat minutely stated the various elements of damages sustained, but did not undertake to state the amount of each, but after this enumeration the petition stated generally that respondent was damaged in the sum of $35,000, and prayed judgment therefor. Good pleading requires the injured party to state his earning capacity, etc., but the law does not require the pleader to ask a separate finding on each element of the damage; and there is no more reason for requiring a separate assessment on the loss of earnings than there is for a separate assessment upon each and all of the other elements stated. This contention is wholly without merit.

[8] VI. It is lastly insisted that the verdict is excessive. The verdict was for $22,500, but the court required the appellant to enter a remittitur of $4,500, reducing the verdict to $18,000, and then rendered judgment thereon. There is no question but what this is a large judgment, much above the average; but it should be borne in mind the injuries sustained in this case are also far above the

before starting to climb-one on the pole while climbing. The question, then, splits in twain and becomes two, to wit: First, was plaintiff while on the ground guilty of contributory negligence as a matter of law, in not using ordinary care to see (or in not seeing) the contact of the sagging high-voltage wire with the iron spike he must use as a handhold or step toward the top of a pole, say, 40 feet high? Second, or was he so guilty in not seeing such contact while climbing the pole?

As to the first, to say that ordinary care (as a matter of law) requires a man on the ground to see the contact of a high-voltage wire with an iron spike at the top of a pole 40 feet high, will not do. That would be extraordinary, not ordinary, care. Many men might have many minds on whether he could or should. Hence, the question was for the jury on that phase of it. Especially so, as he had no warning of trouble in general or of trouble of that kind, but was warned and had found the trouble he was looking for, to wit, two harmless wires entangled or crossed.

average injuries involved in the ordinary, places to look and see one on the ground, lawsuit. This is not a case where the proverbial invisible weak back, stiff joints, loss of manhood, injury to some vital organ, etc., was presented to a jury for determination; but it is a case where the terrific force of 2,300 volts of electricity poured through the body of respondent for several minutes, and left its visible and undoubtable evidence of the frightful effect upon respondent. Both hands were practically burned off, besides he received other severe injuries, and the physical pain and mental anguish suffered by him is beyond description, and the suffering he will have to endure in the future is equally apparent. Respondent was 20-odd years of age, earning about $100 per month prior to his injury, and since then about $35 to $40, and his life expectancy was 35% years. The net loss in his wages up to this date has been about $4,000, and should he live his allotted time, 35 years, his loss in that regard will have amounted to more than $20,000, a sum in excess of the amount of the judgment. Should we add to this his disfigurement, physical pain, and mental anguish suffered and to be suffered by him, it would be much larger, since, however, he has expressed a willingness to accept $18,000, it 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. I know of but two cases where the injuries received were more frightful than were those sustained by the respondent in this case. Those cases are Clark v. Ry. Co., 234 Mo. 396, 137 S. W. 583, and Corby v. Telephone Co., 231 Mo. 417, 132 S. W. 712. While the injuries in those cases were greater than those received by respondent, yet the judgments therein were proportionately larger.

For these reasons I believe that the judgment of the circuit court should be affirmed.

LAMM, C. J., and WALKER and BROWN, JJ., concur; BROWN, J., in result and LAMM, C. J., in an opinion, in which WOODSON, BROWN and WALKER, JJ., concur, and GRAVES, J., dissents in a separate opinion, in which FARIS, J., concurs; BOND, J., dissents in separate opinion.

LAMM, C. J. (concurring). My vote is to concur because: The following propositions gather head and must be admitted on this record: First, defendant was negligent; second, plaintiff had the right, nay, was invited to climb the pole; third (stripped of speculative embroidery), on last analysis the turning question is: Was plaintiff guilty of contributory negligence as a matter of law? The rule is: If there can be no two ways about it among reasonable persons of average intelligence but that he was, then the question was for the court, but if there can be different views entertained by reasonable persons of average intelligence then the question was for the jury.

As to the second, the situation is even more favorable to plaintiff. No court should say, I think, that a man climbing a pole and using ordinary care is bound (as a matter of

spike on the other side of the pole. To say so means that a climbing man must look up the pole, down the pole, and around the pole at every instant of time. Now a man being a sitter or walker, is not a natural pole climber, and at ease in climbing like a squirrel or monkey. Contra, a man climbing a pole has troubles incident to the fact that he belongs to the genus homo, sapiens, and his native home is on the ground, i. e., he has troubles of his own to look out for. Any one who ever climbed a tree knows that his feet, legs, arms, hands, body, all demand and divide his attention. So the danger of falling not only makes some fear natural, but makes a call on his mind. To say plaintiff must look around the pole every time he reaches round it to grasp a spike on the other side (to see if lightning won't strike him when he touches it) is to demand an unusual thing-an extraordinary care, it seems to me. Naturally, then, my conclusion is, it was for the jury to speak the final word. The jury did, and I rest content.

WOODSON, BROWN, and WALKER, JJ., concur in these views.

GRAVES, J. (dissenting). I cannot concur with my learned Brother in the affirmance of this judgment. I think the plaintiff's own negligence bars his action. His very duties (those of a "trouble man" among wires) required of him alertness. He was advised of the situation. He knew that there had been a windstorm and wires were apt to be 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

received the shock which caused the injuries sued for.

dent. The pole had been erected for about a month, and was not, as yet, supplied with cross-arms for the support of the wires, which were to be placed thereon when the old pole, some distance off, should be removed. There is no evidence whatever, of any right given to the other company, of which plaintiff was the employé, to use the pole in question until it should be equipped with cross-arms in order to support the wires it was intended to bear, nor that defendant could reasonably foresee the incidents culminating in the injury to plaintiff, who at the time of the accident was a trouble man sent out to discover and remedy some mishap to the lines of the Kinloch Company, which was his employer. This utter dearth of evidence to show any negligence on the part of defendant is the only reason why I am constrained in the present state of the law to dissent to the opinion adopted by the majority of the court affirming a judgment obtained by plaintiff. But I am not willing to concede that the right to recover for an

that the line of poles was occupied by more than one company. He knew that wires of 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 known by the exercise of reasonable care, that the wires had not been strung thereon, although the pole stood up in the midst of them. He knew that there were iron handholds or steps thereon, because he was using them. He knew that the deadly ladened wire of the defendant ran by that pole, and that it had not been fixed to a cross-arm so as to keep it in place. His experience taught him that if a wire of high voltage was in contact with the iron steps, and his hand was placed upon the iron step, he might be burned. The steps and the wires were there in plain open view. To look was to see them. The plain physical facts cannot be wiped out by evasive testimony. Kelsay v. Mo. Pac. Ry., 129 Mo. loc. cit. 376, 30 S. W. 339. Had plaintiff looked as he proceeded up this pole, this case would not be here; he would not have been injured. When the evidence from all sides, as here, discloses a situation of physical facts, we must measure care or want of care by those facts. We cannot blind our eyes to them and admeasure rights. The còn-injury suffered in hazardous industry, should dition of this pole was in plain view. As plaintiff went up the pole, had he looked at each step before touching it, the trouble would have been averted. The pole stood among these wires, and this he knew. The steps were there, and the slightest care upon his part as he approached the wires in his ascent would have discovered the contact of the wire and the iron step. Under the admitted and undisputed facts the negligence of the plaintiff bars his action, and the trial court should have so said. The judgment should be simply reversed.

FARIS, J., concurs in these views.

any longer be predicable only upon proof of negligence on the part of the owner. I think that stage in the evolution of the law has now been passed, and that the administration of justice should no longer be obstructed by the outworn legal concept, which refuses all compensation for injuries caused by work necessary to social betterment except upon proof of causative negligence on the part of the employer.

The multitude and mischief of cases like the present demonstrate, in my opinion, the imperative need in our positive law of an enactment embodying the principle of workingmen's compensation. Bailey, Per. Inj., vol. 2, §§ 858, 859. The economic and social reaBOND, J. (dissenting). The negligence al- sons demanding such a law 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 pole 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 rep

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 no case where the question has been raised which holds that negligence must be charged and proven in addition to the fact that a public nuisance caused the injury, and I dare say none such exists. And upon principle and justice no person should be permitted to maintain a public nuisance and then say that he is not liable for the injuries which naturally flow therefrom. This principle of law is so well and universally recognized, it would be a useless waste of time and labor to cite authorities in support thereof.