10. ELECTRICITY (§ 15*)-LIABILITY FOR IN

JURIES.

Where an electric light company, using a line of poles owned by a city, was granted permission to replace old poles with new ones, if, as claimed, a new pole erected by it was not in lieu of an old one, this did not affect the rights of the employés of a telephone company, also using the city's poles, to go upon such new pole, where it was intended to serve the purposes of the old one.

[Ed. Note. For other cases, see Electricity, Cent. Dig. § 8; Dec. Dig. § 15.*]

Graves, Bond, and Faris, JJ., dissenting.

In Banc.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Thaddeus G. Hill against the Union Electric Light & Power Company From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff brought this suit in the circuit court of the city of St. Louis against the defendant to recover the sum of $35,000 damages for personal injuries sustained by him through the alleged negligence of the company. A trial was had before the court and a jury which resulted in a verdict for the plaintiff for $22,500. In proper time a motion for a new trial was filed, and among other reasons assigned therefor was that the verdict was excessive. After due consideration the court announced that if the plaintiff would remit $4,500 of the verdict the motion would be sustained. In response to that announcement counsel for plaintiff entered a remittitur of $4,500, and thereupon the court overruled the motion for a new trial, and entered judgment for the plaintiff for $18,000. In proper time and in due form defendant appealed the cause to this court. There being no question raised as to the sufficiency of the pleadings, they will be put aside with the remark that they were sufficient to present the questions involved in this appeal.

these poles, but they are referred to in various places as a large number, and in one place counsel for defendants state facts which show that there were at least 24 of them and also a large telephone cable. The Union Company's wires were used for lighting purposes, and carried about 2,300 volts, and those of the Bell and Kinloch companies were for telephone purposes, and each carried about 50 volts. Those of the city, as previously stated, were strung above and are of no consequence in this case. That on and for years prior to the date of the injury complained of, said poles and wires had been

in constant use by the respective parties for had the ordinary iron step or handholds the purposes mentioned. All of the poles (iron spikes) driven into them from opposite sides, some 21⁄2 feet apart, extending upward. That these steps or handholds were to enable persons to ascend and descend the poles whenever the necessity of the business required. The agents, servants, and employés of the city and those of the three companies named had equal rights to use the poles for the purposes mentioned. That on or about February 15, 1907, the defendant applied to the city for permission to remove old and unsuitable poles along the line mentioned, and to substitute new ones in lieu thereof. In compliance to that application the city issued the following permits (formal parts omitted):

No. 1.

"Gentlemen: In reply to your favor of the 15th inst., permission is hereby granted to replace city's poles with 40-foot poles located on the north side of Loughborough avenue, first pole west of Michigan avenue to the first pole and the first six poles west of Idaho avenue, west of Virginia avenue, and the first pole east under the following conditions:

"Space to be reserved for use of city's wires. companies other than the city that are now "Same space to be reserved for wire using occupying space on said poles.

"The old poles to be taken down and hauled to city pole yards, Kingshighway and Eager road, free of expense to the city."

No. 2.

"Gentlemen: In reply to your favor of the 15th inst., permission is hereby granted to replace city's poles with 40-foot poles located on the north side of Loughborough avenue, first pole east and first six poles west of Idaho avenue, under the following conditions:

"Same space to be reserved for use of city's wires.

"Same space to be reserved for wire using companies other than the city that are now occupying space on said poles.

The plaintiff's evidence tended to show: That the city of St. Louis owned a line of poles erected along the north side of Loughborough avenue extending westward from Colorado street. The primary purpose of these poles was to support wires serving the fire department and telephone system of the city; but prior to the date of the alleged injury the city properly authorized the Bell Telephone Company, the defendant, the Union Electric Light & Power Company, and the Kinloch Telephone Company to construct and maintain cross-arms on said poles and to string and maintain their respective wires thereon. The wires of the city were the top ones, then came those of the Bell Telephone Company, then those of the Union, and lastly those of the Kinloch. Those of the former were strung on the south side, and those of the latter were on the north side thereof. That in pursuance to the authority granted The record does not definitely show how by said permits the defendant had from time many wires all told there were strung upon to time removed old and unsuitable poles For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

"The old poles to be taken down and hauled to city's pole yard, Kingshighway and Eager road, free of expense to the city.

"Permission has been granted to the Bell west of Michigan avenue and the first pole Telephone Company to replace the first pole west of Virginia avenue on the north side of Loughborough avenue.'

over the wires of the Kinloch Company, the fuses thereof are instantly burned or blown out, immediately indicating the presence of a dangerous current.) That, having thus ascertained that no deadly current was passing over the wires he was investigating, plaintiff proceeded along the line of wires in search of the trouble, and upon coming to the new pole mentioned he discovered the trouble. It con

of the Kinloch Company with one of those of the Bell Company, at a point some eight or ten inches from said new pole. In order to correct the trouble the plaintiff ascended the pole in the usual manner, and while engaged in disentangling the wires he received the injuries complained of. The manner of the injury is best told in plaintiff's own language, which is substantially as follows:

"Q. When you went down on that line, tell the jury what you did first. A. I went to the did and what this is. cable box first. Q. Tell the jury what you A. That is the terminal of the cable and the wires were distributed from that terminal out to the line wires, aerial wires, and then they run to the telephones, and I go to that cable head-we have fuses, both carbon and metal fuses, and I go over and see that the line is not grounded or that the fuses are not open-been opened by heavy current or a high voltage passing through that wire. I went to that box and found both fuses in good condition and no grounding of the carbon fuses, and I started to trace that line. From that head I got the cable path. The pairs are numbered; circuit 4, and I trace those wires over that I get them from the wire chief for that line lead until I come to Colorado and Loughborough, and then as I was looking up, I took in the whole situation and saw the wires there and everything looked all right to me, except the wire I was working on, which was what we call 'crossed up' with a Bell circuit also, and I climbed that pole and got in position on the pole standing on the steps with one foot, and felt around with the knee and the other one, and as I reached for the wire with my hand I reached for the step on the other side to keep my balance-the wires were out to the north side of the pole-and I reached for the south side, and at that time I received a shock, made me unconscious, and I don't know-I didn't come to until I was in the patrol wagon being hauled away from the spot. Q. Did you touch when you were on that pole? A. I touchtouch any other wire or what wires did you

along the street mentioned, and had erected new ones in lieu thereof; all parties retaining the same space upon the new ones that they occupied upon the old, as well as the same rights to use them as they did the old ones. That during the removal of the old poles and the installation of the new, the business or service of all of said parties was continued as though no change had been going on, save and except the incidental insisted of an entanglement of one of the wires terference thereto necessitated by the substitution. That the new poles, as the old, were used by the agents, servants, and employés of all of said parties in constructing, inspecting, and repairing their respective systems of wires. That a short time prior to July 12, 1907, the date when plaintiff was injured, the defendant removed one of the old poles, which was located at a point about 200 feet west of Colorado street, on said Loughborough avenue, and had erected a new pole in its stead, with the footsteps or handholds driven therein, but none of the wires of any of the parties had at that time been attached to the pole. In fact, if I correctly understand the record, the cross-arms upon which the wires are strung had not been installed; at any rate, none of the wires had been attached to that pole, either directly or indirectly, yet it had been erected with the handholds in place, and extended upward among the wires of the city and those of the various companies mentioned. That on the night of July 11, 1907, there was a wind and rain storm in the city of St. Louis; the velocity of the wind being about 30 miles an hour and the rainfall was about seven-tenths of one inch, not an unusual storm. In fact, the United States Signal Service records introduced in evidence showed that some 10 or 12 days prior thereto the wind traveled at the rate of about 50 miles an hour, and that the rainfall was about 11/10 of an inch in depth. That on the 12th of July, 1907, the plaintiff, an employé of the Kinloch Company, in the capacity of a "trouble man," that is, one who is so well skilled in his business that he is selected as one of a force of several to investigate and find any and all defects and troubles that ex-ed the Kinloch wires. Q. Did you touch any ist along the lines of the company which interfere with or destroy the service of the company, and to repair the same when discovered, was sent out to find the trouble with the company's service on Loughborough avenue, west of Colorado street. After resorting to the proper tests he located the trouble at the new pole previously mentioned, and after so doing he examined the cable box erected by the Kinloch Company a few blocks from the point of trouble, by which he discovered the character of the trouble, that is, that it was a slight, and not a heavy or dangerous, is one gain than another? What is the discurrent of electricity that was passing from tance between them? A. 14 to 16 inches. Q. some other wire to the one he was directed to How much higher were the light wires than investigate. (By the way, the cable box men- the Kinloch wires of this line between these A. 14 or 16 inches apart at the tioned, or "terminal junction" as some of the two poles? bottom. Q. In answer to Mr. Drabelle you witnesses term it, is so constructed that when said the Kinloch wire was about 10 inches ever a heavy or dangerous current passes | north of the new pole you were on. Where was

other wire? A. No, sir. Q. When you first approached the pole, what did you do when you first came up there at that point? A. I was looking up toward the wires, and found my trouble there and found that the Kinloch wires were crossed with the wires but they looked all right. I didn't notice anything wrong— anything particularly wrong. Q. Did you see anything of any wire on any step? A. No, sir; I didn't notice anything of that kind. Q. How high in the air were those wires of your company? A. I should say 20 or 25 feet. Q. Does that affect the way you answer as to how these wires were strung between these poles? A. No; the Kinloch was the bottom and the Q. How much higher light wire was the next.

10. ELECTRICITY (§ 15*)—LIABILITY FOR IN

JURIES.

Where an electric light company, using a line of poles owned by a city, was granted permission to replace old poles with new ones, if, as claimed, a new pole erected by it was not in lieu of an old one, this did not affect the rights of the employés of a telephone company, also using the city's poles, to go upon such new pole, where it was intended to serve the purposes of the old one.

[Ed. Note.-For other cases, see Electricity, Cent. Dig. § 8; Dec. Dig. § 15.*]

Graves, Bond, and Faris, JJ., dissenting.
In Banc. Appeal from St. Louis Circuit
Court; Eugene McQuillin, Judge.

Action by Thaddeus G. Hill against the

Union Electric Light & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff brought this suit in the circuit court of the city of St. Louis against the defendant to recover the sum of $35,000 damages for personal injuries sustained by him through the alleged negligence of the company. A trial was had before the court and a jury which resulted in a verdict for the plaintiff for $22,500. In proper time a motion for a new trial was filed, and among other reasons assigned therefor was that the verdict was excessive. After due consideration the court announced that if the plaintiff would remit $4,500 of the verdict the motion would be sustained. In response to that announcement counsel for plaintiff entered a remittitur of $4,500, and thereupon the court overruled the motion for a new

trial, and entered judgment for the plaintiff for $18,000. In proper time and in due form defendant appealed the cause to this court. There being no question raised as to the sufficiency of the pleadings, they will be put aside with the remark that they were suflicient to present the questions involved in this appeal.

these poles, but they are referred to in va
rious places as a large number, and in one
place counsel for defendants state facts

which show that there were at least 24 of
them and also a large telephone cable. The
Union Company's wires were used for light-
ing purposes, and carried about 2,300 volts,
and those of the Bell and Kinloch companies
were for telephone purposes, and each car-
ried about 50 volts. Those of the city, as
previously stated, were strung above and are
of no consequence in this case. That on and
for years prior to the date of the injury
complained of, said poles and wires had been
in constant use by the respective parties for

the purposes mentioned. All of the poles
had the ordinary iron step or handholds
(iron spikes) driven into them from opposite
sides, some 22 feet apart, extending up-
ward. That these steps or handholds were
to enable persons to ascend and descend the
poles whenever the necessity of the business
required. The agents, servants, and em-
ployés of the city and those of the three
companies named had equal rights to use
the poles for the purposes mentioned. That
on or about February 15, 1907, the defend-
ant applied to the city for permission to
remove old and unsuitable poles along the
line mentioned, and to substitute new ones
in lieu thereof. In compliance to that ap-
plication the city issued the following per-
mits (formal parts omitted):

No. 1.

"Gentlemen: In reply to your favor of the place city's poles with 40-foot poles located on 15th inst., permission is hereby granted to rethe north side of Loughborough avenue, first pole west of Michigan avenue to the first pole and the first six poles west of Idaho avenue, west of Virginia avenue, and the first pole east under the following conditions:

"Space to be reserved for use of city's wires. companies other than the city that are now "Same space to be reserved for wire using occupying space on said poles.

"The old poles to be taken down and hauled to city pole yards, Kingshighway and Eager road, free of expense to the city."

No. 2.

"Gentlemen: In reply to your favor of the 15th inst., permission is hereby granted to replace city's poles with 40-foot poles located on the north side of Loughborough avenue, first pole east and first six poles west of Idaho avenue, under the following conditions:

"Same space to be reserved for use of city's wires.

"Same space to be reserved for wire using companies other than the city that are now occupying space on said poles.

The plaintiff's evidence tended to show: That the city of St. Louis owned a line of poles erected along the north side of Loughborough avenue extending westward from Colorado street. The primary purpose of these poles was to support wires serving the fire department and telephone system of the city; but prior to the date of the alleged injury the city properly authorized the Bell Telephone Company, the defendant, the Union Electric Light & Power Company, and the Kinloch Telephone Company to construct and maintain cross-arms on said poles and to string and maintain their respective wires thereon. The wires of the city were the top ones, then came those of the Bell Telephone Company, then those of the Union, and lastly those of the Kinloch. Those of the former were strung on the south side, and those of the latter were on the north side thereof. That in pursuance to the authority granted The record does not definitely show how by said permits the defendant had from time many wires all told there were strung upon to time removed old and unsuitable poles For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

"The old poles to be taken down and hauled to city's pole yard, Kingshighway and Eager road, free of expense to the city.

"Permission has been granted to the Bell west of Michigan avenue and the first pole Telephone Company to replace the first pole west of Virginia avenue on the north side of Loughborough avenue."

over the wires of the Kinloch Company, the fuses thereof are instantly burned or blown out, immediately indicating the presence of a dangerous current.) That, having thus ascertained that no deadly current was passing over the wires he was investigating, plaintiff proceeded along the line of wires in search of the trouble, and upon coming to the new pole mentioned he discovered the trouble. It consisted of an entanglement of one of the wires of the Kinloch Company with one of those of the Bell Company, at a point some eight or ten inches from said new pole. In order to correct the trouble the plaintiff ascended the pole in the usual manner, and while engaged in disentangling the wires he received the injuries complained of. The manner of the injury is best told in plaintiff's own language, which is substantially as follows:

"Q. When you went down on that line, tell the jury what you did first. A. I went to the did and what this is. cable box first. Q. Tell the jury what you A. That is the terminal of the cable and the wires were distributed from that terminal out to the line wires, aerial wires, and then they run to the telephones, and I go and metal fuses, and I go over and see that to that cable head-we have fuses, both carbon the line is not grounded or that the fuses are not open-been opened by heavy current or a high voltage passing through that wire. I went tion and no grounding of the carbon fuses, and to that box and found both fuses in good condiI started to trace that line. From that head I got the cable path. The pairs are numbered; I get them from the wire chief for that line circuit 4, and I trace those wires over that lead until I come to Colorado and Loughborough, and then as I was looking up, I took in the whole situation and saw the wires there and everything looked all right to me, except the wire I was working on, which was what we call 'crossed up' with a Bell circuit also, and I climbed that pole and got in position on the pole standing on the steps with one foot, and felt around with the knee and the other one, and as I reached for the wire with my hand I reached for the step on the other side to keep my balance-the wires were out to the north side of the pole-and I reached for the south side, and at that time I received a shock, made me unconscious, and I don't know-I didn't come to until I was in the patrol wagon being hauled away from the spot. Q. Did you touch any other wire or what wires did you touch when you were on that pole? A. I touch

along the street mentioned, and had erected new ones in lieu thereof; all parties retaining the same space upon the new ones that they occupied upon the old, as well as the same rights to use them as they did the old ones. That during the removal of the old poles and the installation of the new, the business or service of all of said parties was continued as though no change had been going on, save and except the incidental interference thereto necessitated by the substitution. That the new poles, as the old, were used by the agents, servants, and employés of all of said parties in constructing, inspecting, and repairing their respective systems of wires. That a short time prior to July 12, 1907, the date when plaintiff was injured, the defendant removed one of the old poles, which was located at a point about 200 feet west of Colorado street, on said Loughborough avenue, and had erected a new pole in its stead, with the footsteps or handholds driven therein, but none of the wires of any of the parties had at that time been attached to the pole. In fact, if I correctly understand the record, the cross-arms upon which the wires are strung had not been installed; at any rate, none of the wires had been attached to that pole, either directly or indirectly, yet it had been erected with the handholds in place, and extended upward among the wires of the city and those of the various companies mentioned. That on the night of July 11, 1907, there was a wind and rain storm in the city of St. Louis; the velocity of the wind being about 30 miles an hour and the rainfall was about seven-tenths of one inch, not an unusual storm. In fact, the United States Signal Service records introduced in evidence showed that some 10 or 12 days prior thereto the wind traveled at the rate of about 50 miles an hour, and that the rainfall was about 11/10 of an inch in depth. That on the 12th of July, 1907, the plaintiff, an employé of the Kinloch Company, in the capacity of a "trouble man," that is, one who is so well skilled in his business that he is selected as one of a force of several to investigate and find any and all defects and troubles that ex-ed the Kinloch wires. Q. Did you touch any ist along the lines of the company which interfere with or destroy the service of the company, and to repair the same when discovered, was sent out to find the trouble with the company's service on Loughborough avenue, west of Colorado street. After resorting to the proper tests he located the trouble at the new pole previously mentioned, and after so doing he examined the cable box erected by the Kinloch Company a few blocks from the point of trouble, by which he discovered the character of the trouble, that is, that it was a slight, and not a heavy or dangerous, current of electricity that was passing from some other wire to the one he was directed to investigate. (By the way, the cable box mentioned, or "terminal junction" as some of the witnesses term it, is so constructed that whenever a heavy or dangerous current passes

other wire? A. No, sir. Q. When you first
approached the pole, what did you do when you
first came up there at that point? A. I was
looking up toward the wires, and found my
trouble there and found that the Kinloch wires
were crossed with the wires but they looked
all right. I didn't notice anything wrong-
anything particularly wrong. Q. Did you see
anything of any wire on any step? A. No, sir;
I didn't notice anything of that kind. Q.
How high in the air were those wires of your
company? A. I should say 20 or 25 feet. Q.
Does that affect the way you answer as to how
these wires were strung between these poles?
A. No; the Kinloch was the bottom and the
Q. How much higher
light wire was the next.
What is the dis-
is one gain than another?
tance between them? A. 14 to 16 inches. Q.
How much higher were the light wires than
the Kinloch wires of this line between these
two poles? A. 14 or 16 inches apart at the
bottom. Q. In answer to Mr. Drabelle you
said the Kinloch wire was about 10 inches
north of the new pole you were on. Where was

the trouble you were talking about? A. Right | partment of the city of St. Louis, and T. J. at the pole I was on. Q. In running that line Keller, an employé of the Kinloch Company, leading up to the pole where you found the testified regarding said custom substantially trouble, did you notice whether any of these particular wires were insulated or not? Could the same as did the plaintiff. you tell? A. Yes, sir. Q. Did they look like