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not plaintiff's duty but was assumed by de- , ten at the ground, and many of the cross-arms fendant, then ordinary care meant such care

on their poles used to support wires and and caution, in view of all the facts and circumstances, as an ordinarily prudent person would transformers were also defective and had to use in ascertaining obvious defects. Held that, be replaced with new cross-arms. Defendif the evidence justified the refused instruction, ants had ordered all of their Horneberger its refusal was harmless, as defendant's theory transformers replaced with General Elecof the case was properly presented by the other trics. The latter is described as being a lar. instructions.

[Ed. Note.-For other cases, see Trial, Cent. ger transformer than the Horneberger. The Dig. 88 651-659; Dec. Dig. 8 260.*]

sizes and weights of these transformers are 10. DAMAGES (8 132*)–EXCESSIVENESS-PER- not stated in the evidence or pleadings, and SONAL INJURIES.

while some originals and models were introPlaintiff, an electric light lineman, 29 years duced, and the trial court and jury may have old, experienced in handling and repairing elec- obtained a correct knowledge of their respectrical appliances and doing signal work on railroads, earning $65 a month and having earned tive sizes, it is somewhat difficult for us to as high as $85 a month, fell 21 feet from an do so from the printed record. electric light pole upon a brick sidewalk. A

The immediate cause of plaintiff's fall was bone was broken in one of his elbows, which the decayed condition of part of a cross-arm had never been removed and the muscles were torn loose from the bone, rendering that arm upon which he was installing a new transuseless, and the evidence was conflicting as to former. He testifies that, after the old transwhether the elbow could be so treated that he former had been lowered to the ground and could again use the arm. One of his ears was injured internally, so as to destroy his hearing the new transformer raised and hung upon through that ear, and this loss of hearing ren- the cross-arm, it was his duty to connect, dered him unfit for signal work on railroads. paint, and solder several wires, in which The muscles on one side of his body, were with work it was necessary for him to go both ered and atrophied, giving him a lopsided appearance. His general health declined, and his below and above the transformer. That, on weight was reduced from 152 to 121 pounds. account of the position of numerous wires, His pain, which continued for two weeks, was he was compelled to unfasten his belt from so great as to render him temporarily insane. the pole and climb over the transformer; in Held, that a verdict for $9,000 was not exces, doing so he could not secure a hold upon the sive.

[Ed. Note.-For other cases, see Damages, pole with his hands, but was compelled to Cent. Dig. $$ 372–385, 396; Dec. Dig. § 132.*Í sustain himself by taking hold of the crossAppeal from Circuit Court, Pettis County : There is no dispute about the fact that the

arm to which the transformer was hanging. Hopkins B. Shain, Judge. Action by Frank W. Rutledge against E. been sound where it was fastened to the

cross-arm appeared sound, and may have W. Swinney and another, receivers of the Sedalia Light & Traction Company. From pole, but a short distance from the pole it

was only sound about a fourth of an inch a judgment for plaintiff, defendants appeal.

deep, and the interior was so rotten that it Affirmed. See, also, 170 Mo. App. 265, 156 S. W. 478. weight, or such of his weight as he placed

crumbled or sluffed off under plaintiff's Plaintiff sues for injuries sustained while upon it with his hand. working for defendants as a lineman. De Plaintiff testified: That he was performfendants are receivers of the Sedalia Light| ing a “rush job,” commenced about 3 p. m. & Traction Company.

That he was instructed by the foreman to This is the second appeal in this case. On complete the job so as not to interrupt the the first trial plaintiff obtained a judgment service to some nine customers who obtained of $5,000, which was reversed by the Kansas lights through this particular transformer. City Court of Appeals on account of errone. According to plaintiff's evidence, it required ous instructions. 170 Mo. App. loc. cit. 265, about three hours to take down an old trans156 S. W. 478. Upon a second trial plaintiff former and replace it with a new one; many bad judgment for $9,000, from which defend- wires having to be connected, soldered, and ants appeal to this court.

painted and other appliances changed. That, The plaintiff sustained his alleged injuries after arriving at the pole, they had less than by falling 21 feet from an electric light pole two hours to complete the job; the lights beupon a brick sidewalk. The nature of his ing needed about 4:30 on that short Februinjuries will be noted in connection with our ary day. Plaintiff further testified: That conclusions.

this pole stood in a leaning position, but that The plaintiff, on the afternoon of Febru- it was not his duty to inspect poles or crossary 8, 1912, was directed to assist defend- arms, and that Mr. Bergfelder, defendants' ants' foreman, Gus Bergfelder, and two other foreman, had recently been going over de. employés in removing a Horneberger trans- fendants' lighting system, inspecting the former from a pole and replacing same with cross-arms with a hammer and chisel. That , a larger transformer, known as a General | by this method he detected many cross-arms Electric.

which were decayed, and caused plaintiff and The lighting plant for which defendants other employés to replace such defective were receivers had been constructed several cross-arms with new ones. That he was told years. Some of their poles had become rot- not to inspect, and was not furnished with

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexea

cross-arm

tools suitable for that purpose. That the David F. Webster, defendants' superintendonly proper tools for inspecting cross-arms ent, testified that he never gave any orders were a hand axe or bammer and chisel. to his linemen about inspecting, but it was That while the foreman kept a hammer and the custom for each lineman to do his own chisels locked in a box at defendants' office inspecting of cross-arms, which could readily with which he inspected cross-arms, in direct- be done with a pair of plyers, connectors, and ing what tools and appliances should be tak- a screw-driver, which tools every lineman en to the place where plaintiff was injured, was required to furnish and carry with him. said foreman omitted the hammer and chisel. Witness said that he had never climbed any Plaintiff further testified: That in the poles, and seldom knew when cross-arms morning of the day he was injured he assist were defective, except when the linemen reed defendants' foreman in taking down a ported them to him; and never instructed Horneberger transformer and hanging a any of the employés to climb poles to inspect larger one in its place in another part of the cross-arms, and only supposed cross-arms city. That, before making that change, de- were repaired when they became so badly. fendants' foreman climbed the pole and in- out of order that the defects could be seen spected, with hammer and chisel, the cross- from the ground. Witness gave it as his arm upon which the new transformer was to opinion that the new

near the be hung. Plaintiff also testified: That be- top of the pole where plaintiff received his cause he had been told not to inspect, be- injuries was placed there about two weeks cause no tools suitable for that purpose were before the injury occurred. Mr. Webster alfurnished or taken to the place of the acci- so stated that he appointed Mr. Bergfelder dent, and because the pole where he under-foreman of defendants' lighting plant, but took to hang the transformer contained a could not remember if this was before or new cross-arm near the top thereof, he sup- after plaintiff was injured. posed defendants' foreman had recently inspected that pole and the cross-arms there stated that he was not foreman for defend

Gus Bergfelder, testifying for defendants, on, and consequently did not undertake any ants at the time plaintiff was injured; was inspection except with his eyes. That he looked and saw that the cross-arm, upon being the oldest in the employ of defendants,

simply a lineman, the same as plaintiff ; but, which the new transformer was to be hung, the orders were given to him by superintendappeared to be sound. There were four cross- ent Webster, and he (Bergfelder) looked after arms on the pole; the transformer was hung on the second one from the bottom. Plaintiff seeing that the work was performed. Mr.

Bergfelder further testified: That he had further testified that, when he suggested how

never climbed any poles for the purpose of a certain kind of work should be done to secure the safety of employés, defendants' fore inspecting cross-arms with hammer and chis

el. That it was the custom for each lineman man said:

to inspect cross-arms as he needed to use "When you fellows are authorized to inspect or authorized to direct work, then we will do them, which could readily be done by tapping the way you want it done;

until then them with plyers, connectors, or a you will do what you are told to do."

driver, which tools each lineman carried. George Green, a witness for plaintiff, stat- Witness further stated: That the new crossed that he worked for defendants under Mr. arm near the top of the pole where plaintiff Bergfelder, the foreman, for several months, was injured was placed there in September, quitting the job December 23, 1911, prior to 1911. That after plaintiff's injury witness plaintiff's injury on February 8, 1912. Mr. climbed the pole and, within a few minutes, Green stated: That foreman Bergfelder completed the installation of the new transwent about over defendants' electric light former, standing on the transformer while system almost every day, inspecting cross- he did that work. That he thought an hour arms with hammer and chisel, and inspecting was sufficient time to take down a Hornepoles at the ground with a steel bar. That berger and install a new transformer. he ordered poles and cross-arms removed There is not much conflict in the evidence whenever he found by such inspections they as to what tools a lineman was required to were defective or rotten. That, when sug- supply and carry with him-a pair of plyers, gestions were made by the linemen about connectors, and a screw-driver, or a knife how they thought work ought to be done, the with a stub or broken blade; the knife foreman would inform them that they must being used in stripping wires and unscrewing "do what they were told to do." Witness fixtures on transformers. stated that it was customary for the foreman Lucian Brewington, who had worked for to inspect poles and cross-arms before send defendants, and who was introduced by them ing linemen to repair them. The defendants' as a witness, testified that he knew of no cusattorneys did not cross-examine this witness. tom of inspection on defendants' plant. Said

C. G. Green also testified for plaintiff that witness further testified that striking a cross-, he frequently saw defendants' foreman Berg- arm with a pair of plyers or connectors would felder going over town inspecting poles, not ordinarily afford much information as to wires, and cross-arms, and making notes in whether it was sound. He usually inspected

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driving his screw-driver into them with a necessary and intended that linemen should hammer, if he had the hammer. When a go upon the cross-arms in performing their cross-arm looked sound, he ordinarily went work. The defendants, having neglected to ahead and used it without inspection.

either demur or move to make the petition Frank Leach, an electrician and lineman of more definite, cannot, under the facts in this large experience, stated that cross-arms could case, be heard to complain after verdict. not be satisfactorily inspected with plyers Sexton v. Metropolitan Street Ry.,. 245 Mo. or connectors. If a cross-arm was dry and 254, loc. cit. 262, 263, 149 S. W. 21, and hollow, that fact might be detected by tap- Parker v. United Railways, 154 Mo. App. ping it with plyers, but if the inside of the 126, 133 S. W. 137.

cross-arm was simply rotten and full of mois- The answer of defendants is a general de

ture, and wires were strung upon it, its un- nial and a general plea of contributory negsoundness could not be detected by tapping it ligence. with a light instrument. In such cases the [2] There is a recital in the petition that proper inspection could only be made with the pins in the cross-arms were defective, but a hand axe or with a hammer and chisel. that part of the petition should be treated

Such additional facts as may be necessary as surplusage. The evidence shows that to a full understanding of the case will be plaintiff did not touch the pins until the given with our conclusions.

cross-årm itself crumbled and gave way. Geo. F. Longan, of Sedalia, and Seddon & He then caught hold of two of the pins in Holland, of St. Louis, for appellants. Mont- the cross-arm to avoid falling, but those gomery & Montgomery and Charles E. Yeater, pins broke or pulled out. It was the decayed all of Sedalia, for respondent.

condition of the cross-arm, not the pins,

which caused plaintiff to fall. I. Petition.

The case of Roberts v. Missouri & Kansas BROWN, J. (after stating the facts as

Telephone Co., 166 Mo. 370, 66 S. W. 155, is above). [1] The first point relied upon by de- not “on all fours" with the case at bar, as defendants for reversal is that the plaintiff's plaintiff was not relying upon some one else

fendants assert. In the Roberts Case the petition is insufficient in that it does not to inspect. He seems to have had the time, charge that the cross-arm which crumbled or sluffed off under plaintiff's hand, causing tools, and opportunity to inspect, but neglecthis fall and consequent injuries, was de ed to do so. It further appears that Roberts signed or intended to support the weight of bad actual knowledge that the cross-arm a lineman. The petition contains the fol- upon which he stepped was defective, belowing averments:

cause he saw that one of the pins was de"And plaintiff apers that it was the duty cayed and had broken. Yet, notwithstanding of the defendants, through their officers, agents, that knowledge, without fastening his belt and foremen, to exercise ordinary care in in- to the pole, he stepped out on the cross-arm specting their poles, cross-arms, pins, and wires; two feet from the pole. and other places where their workmen would have occasion to work, so as to ascertain wheth

[3, 4] In the case at bar there was nother such places were ordinarily safe for said ing in the outside appearance of either the workmen thereat engaged in their said work, cross-arm or pins to indicate decay or hidbut that the defendants wholly failed to dis

den defects. charge such duty of inspection so incumbent up

It is true that Roberts, like on them with reference to the said pole situate the plaintiff here, released his belt from the as aforesaid at the intersection of said Ver- pole, but plaintiff states that he had to do so mont avenue and Second street in the city of in order to shift his position and climb over Sedalia. And plaintiff says that the cross-arms the transformer and numerous wires. The upon said pole and the pins sunk therein were defective, unsafe, and dangerous, and that the defendants do not assert that plaintiff was defendants

knew, or, in the exercise of ordinary guilty of any negligence in removing nis care and diligence, should have known, of such belt from the pole. It was apparently necesdefective, unsafe, and dangerous condition, and should have remedied the same by the necessary sary to do so. The case of Corby v. Mo. & repairs so as to make the same safe for work- Kansas Tel. Co., 231 Mo. 417, 132 S. W. 712, men engaged in the work of defendants there while not won all fours" with this case, furon; and plaintiff also says that the plaintiff nishes strong support for respondent's conhad no knowledge whatever of the defective, unsafe, and dangerous condition of said pole,

tention. cross-arms, and pins."

The size of the particular cross-arm which While this petition does not categorically crumbled under plaintiff's hand is not given, aver that the cross-arm in question was in- except through a model which is not before us, tended to support plaintiff's weight while but it does appear that said cross-arm was he was hanging the transformer, it alleges strong enough at the pole to hold up the that fact with sufficient clearness to notify old transformer and also the new one, and, defendants that the rotten condition of the if it appeared to be sound, it was perfectly cross-arm was the cause of plaintiff's injury. natural for plaintiff to suppose that it would It recites that it was the duty of defendants sustain his weight a few inches from the pole to inspect their cross-arms and make the where he took hold of it. same safe for employés to work thereon. This The putting up of a larger transformer recital is equivalent to averring that it was caused greater pressure upon the cross-arm

arm.

was

than it had theretofore borne, and only a , exercise of ordinary care at that time and rereasonable degree of prudence on the part ceived damages as the result thereof." of Mr. Bergfelder, the foreman, would have [7,8] Plaintiff testified that he was requircaused him to inspect the cross-arm care-ed to perform a rush job and not furnished fully, or to have furnished plaintiff with tools with which he could have detected the suitable tools and instructed him to inspect decayed and unsafe condition of the crossit before installing the larger transformer.

Consequently there was substantial Cases may arise where a lineman would evidence that he did not have “the opportube guilty of contributory negligence in plac- nity, time, and meads” to discover the condiing his weight upon a cross-arm without tion of said cross-arm, as recited in the in. first fastening his belt to the pole, but this struction under consideration. The weight is not one of them.

to be given plaintiff's evidence is an issue

which was foreclosed by the verdict of the II. Evidence,

jury. Dutcher v. Railroad, 241 Mo. 137, loc. [6] Counsel for defendants make a strenu- cit. 168, 145 S. W. 63. The giving of this inous effort to convince us that the jury should struction did not constitute error. have believed their witnesses and disbelieved

The ninth instruction given at the request those who testified for plaintiff, including of plaintiff is much like instruction No. 2, the plaintiff himself. There are cases where and reads as follows: the testimony of witnesses is so utterly at lieve from the evidence that the plaintiff was

"The court instructs the jury that if they bevariance with the admitted or known physi- sent up the pole in question by defendants' forecal facts as to justify casting such evidence man under circumstances that deprived him of aside (Stafford v. Adams, 113 Mo. App. 717, the means and opportunity of inspecting the 88 S. W. 1130); but this is not a case of that that the foreman, in ordering him to the top

cross-arm for latent defects, and if they believe kind. James Green, who corroborates plain- to do a rush job, knew that plaintiff had neitiff most fully as to defendants' custom in ther the means nor time for a comprehensive inregard to inspections, and consequently conspection, and that plaintiff's fall was due to a

latent or hidden defect in the second cross-arm tradicted the evidence of defendants' wit- from the bottom, then the plaintiff had a right nesses Bergfelder and Webster, made a to presume from such orders and action of the very straightforward statement, and was foreman that the pole and its attachments had not even cross-examined by defendants' at- been recently inspected and found to be in

good condition, and that the cross-arm torneys. So far as the evidence is concern- reasonably safe for the use the foreman must ed, we will say that defendants' demurrer have anticipated he would make of it." thereto was wholly frivolous, and, if there The two instructions above quoted furwas no point in the case except the alleged nish a fair outline of plaintiff's theory of the insufficiency of the evidence, we would feel it case. our duty to affirm the judgment, with 10 per

IV. Refused Instruction. cent. damages, as provided by section 2084,

[9] The court refused the following inR. S. 1909.

struction requested by defendant: III. Plaintiff's Instructions.

"The court instructs the jury that if you_be

lieve and find from the evidence that on Feb[6] We will next consider the issues aris-ruary 8, 1912, and for some time prior thereto, ing on the giving and refusal of instructions. lineman, and that, under the system of work

plaintiff was in the employ of defendant as a A most earnest complaint is made against adopted by defendant for linemen, it was the plaintiff's instruction No. 2, which reads as duty of plaintiff, before he climbed a pole or follows:

rested his weight upon a cross-arm, to make a

careful inspection to ascertain whether such “The court instructs the jury that if they pole or cross-arm was sufficient to sustain his believe from the evidence that on the 8th day weight before placing his weight thereon, then of February, 1912, the plaintiff, Frank W. Rut- and in that case the plaintiff is not entitled to ledge, was engaged in the line of his duty as a recover, and you will find your verdict for the lineman for the defendants, and in the perform- defendant." ance of such duty was engaged in the work of replacing a small transformer with a larger

It is very doubtful if there was sufficient transformer to meet increased service on de- evidence upon which to base this instruction. fendants' pole at the northwest corner of Sec- The defendants' superintendent, Mr. Webster, ond and Vermont streets in the city of Sedalia, and was engaged in said work with other work: stated that he gave ho orders to his linemen men under the 'supervision and control of de- about inspecting. From Mr. Webster's evifendants' foreman and subject to his orders and dence it seems that he thought it unnecessary control, and if you believe from the evidence to inspect or take down cross-arms until their that the second bottom cross-arm on said pole and the pins on the north end thereof were in unsafe condition became so obvious that it a defective and unsafe condition for linemen could be observed from the ground. He seems working thereon, and that at said time such to have regarded inspections as a matter of condition of the same was known, or by the little moment. Mr. Bergfelder, the foreman, exercise of ordinary care could have been known, by the defendants, and if you believe testified that it was the custom among dethat, from the nature and character of the fendants' employés for each lineman to inwork, the plaintiff did not have the opportunity, spect cross-arms before going upon them; yet time, or means to discover the condition of said Mr. Bergfelder gave no instance of this cuscross-arm, then your verdict must be for the plaintiff, provided you further find and believe tom being observed, and admitted that, with

was

transformer while it was hanging on the nary care,' as used in these instructions, and as very cross-arm, a part of which had crum- applied to plaintiff's duty of inspection, is meant bled in plaintiff's hand, causing him to fall. all the facts and circumstances in evidence, in

such care and caution, taking into consideration Notwithstanding Mr. Bergfelder knew this cluding the elements of nieans and time for cross-arm was badly decayed, he seems to making such inspection, as an ordinarily pruhave depended upon it to hold up both him-dent person would use under the same or simself and the transformer.

ilar circumstances in ascertaining obvious de

fects.Lucian Brewington, another witness intro

After a careful review of the instructions duced by defendants, stated that, when a given and refused, we find that the law was cross-arm looked sound, he ordinarily went upon it without further inspection. It is dif- correctly presented to the jury, and that de

fendants have no just cause of complaint on ficult to see how a system or custom of in

that score. Richardson v. Railroad, 223 Mo. spection could come into existence or be adopted which was not prescribed by any Mo. loc. cit. 718, 104 S. W. 109.

325, 123 S. W. 22; Cytron v. Transit Co., 205 rule of defendants, and seldom, if ever, practiced by any of its employés. From the evi

VI. Judgment Not Excessive. dence it is certain that the decayed condition of the cross-arm which caused plaintiff's fall dence regarding the extent of plaintiff's in

[10] There is not much conflict in the evicould not have been discovered from the

juries. Prior to his fall he was a strong man ground, and a strong preponderance of the

29 years of age, with large experience in evidence tends to prove that its defects could not have been ascertained without the aid of and doing signal work on railroads. He was

handling and repairing electrical appliances, a hammer and chisel or hand axe.

earning $65 per month, and had earned as V. Instructions Sufficient.

high as $85 per month. By his fall a bone

was broken in one of his elbows, which bone Yet if it be conceded that instruction No. has never been removed. The muscles in his 3, requested by defendants, should have been arm were torn loose from the bone, so as to given, we think its refusal was harmless, be- render that arm useless. One of his ears cause defendants' theory of the case

was so injured internally that he lost the properly presented to the jury by other in

power to hear through same. The muscles structions. Instruction No. 7, given at the of the left side of his body are withered and request of defendants, reads as follows:

atrophied, giving him a lopsided appearance. "The court instructs the jury that, even His general health has declined, and his though you believe and find from the evidence that linemen frequently placed their weight on weight reduced from 152 to 121 pounds. The cross-arms, yet it was the duty of plaintiff, be pains which his injuries produced were so fore placing his weight, or part thereof, on the great that, within a few hours after his fall, cross-arm in question, to exercise ordinary care his reason was temporarily dethroned. His to ascertain whether it was adequate to bear such weight. And the court instructs the jury pains continued for two weeks. if you believe and find from the evidence that Two physicians testified for defendants plaintiff failed to exercise such care, and that that they believed the loose bone in plainhad he done so he would have discovered that tiff's elbow could be so treated by an operathe cross-arm in question was too weak to sustain his weight, or part of it, then and in that tion that plaintiff could again use the arm, case the plaintiff is not entitled to recover, but they admitted that an operation upon a and you will find your verdict for the defend- joint was more difficult than upon other parts ant."

of the body, and their evidence was not reThis instruction was supplemented by one assuring. Plaintiff's physician testified that given by the court of its own motion, which nothing could be done for his arm, and that reads as follows:

his days of pole-climbing were over. The "The court instructs the jury that if they find loss of hearing in one of his ears renders and believe from the evidence, under all the in- bim unfit for signal work on railroads. Upstructions, that it was the duty of plaintiff, when working upon and about cross-arms upon on this evidence we hold that the judgment poles, to make bis own inspection, in order that is not excessive. he might ascertain any and all defects that might render the cross-arms unsafe to him,

VII. Foreman, whether said defects were obvious or hidden, then the court instructs the jury that the

The evidence of defendants' witness Bergterm ordinary care,' as baving application to felder tends to prove that he was not fore. this duty of inspection, means such care and man for defendants at the time plaintiff was caution, considering all the facts and circumstances in evidence, including the elements of injured. Bergfelder says that he gave ormeans and time for making a comprehensive ders and superintended defendants' work, inspection, as an ordinarily prudent person, up- "but was not duly appointed foreman." Deon whom this duty of inspection devolved, fendants seem to have abandoned their. thewould use under the same or similar circumstances. On the other hand, if the jury find ory that plaintiff's injury was caused through and believe from the evidence that the duty of the negligence of a fellow servant. inspection for hidden or latent defects in the After a most careful review of all the evicross-arms upon poles upon which plaintiff dence and authorities cited by defendants' worked was not the duty of plaintiff, but that said duty was assumed by defendants, then the counsel, we are convinced that the judgment court instructs the jury that by the term 'ordi- should be affirmed; and it is so ordered.

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