Smith v. St. Joseph Railway, Light, Heat & Power Co.

*477 WHITE, J. The plaintiff sued for damages on account of the death of her husband, William E. Smith. Smith was employed by the St. Joseph Railway, Light, Heat & Power Company, called in the record the Railway Company, and was killed, plaintiff says, while standing on a guy wire attached to one of the Railway Company’s poles. The guy wire was owned by the Western Dairy & Ice Cream -Company, called in the record the Dairy Company. It ran from said pole to the Dairy Company’s smokestack, and had been installed by the Bichler Manufacturing Company, called in the record the Bichler Company. The guy wire was not insulated; plaintiff alleged and offered evidence to prove that while standing on that guy wire, in the service of the Railway Company, the plaintiff came in contact with a high voltage wire, the property of the Railway Company, hanging near the pole; that the guy wire furnished a ground so as to carry the current through Smith’s body. The Dlairy Company operated its plant in a building fronting east on Fifth Street, St. Joseph. Along the south side of the building ran Charles Street, and in the rear, on the west, was an alley. The engine room of the Dairy Company, a one-story brick building at the rear, extended to the alley. In the alley, at the southwest corner of the engine room, the Railway Company maintained a tall electric light pole, with cross-arms *478 towards the top, on which were carried many electric wires. Extending- np, on the south side of this pole, next to Charles Street, were a number of spikes for use of linemen of the Railway Company in going- up and down the pole. About fifteen feet north of the tall pole was a shorter pole set in the alley. These poles were very close to the rear wall of the Dairy Company’s engine room. They sustained a platform between them near the level of the top of the engine room. On this platform were three transformers, belonging- to the Railway Company, described by the witnesses as each about three feet in diameter and, from the pictures in the record, they appear to have been about that height. About three feet above the transformers was a double cross-beam extending from pole to pole and bolted at each end to the pole. About five and one-half or six feet above that cross-beam, and about eight feet above the transformers, was another beam extending from pole to pole. Upon this upper cross-beam were two wooden fuse boxes over the north and middle transformer. There was no wooden fuse box over the south transformer, the one next the tall pole, although it appears from the evidence there had been one at some time. High voltage wires came through the fuse boxes and descended into the transformers below; the south fuse box being-absent, one such wire came down from the primary direct. Attached to the pole at the southwest corner of the engine room, and nearly on a level with the top of the transformers, about two or three feet below the double cross-beam, was a guy wire, which from that point slanted upward in a northeasterly direction, to the smokestack of the Dairy Company in the engine room. How far the smokestack was from the pole is not stated. This wire was not insulated, and its maintenance in that position, it is charged by the plaintiff, was the proximate cause of her husband’s death. Another guy wire attached to the same pole and at the same place, almost touching the Dairy Company’s guy wire, extended eastward along *479 Charles Street to another pole maintained by the Railway Company at the corner of Fifth and Charles streets. This latter guy wire was insulated by what is called a current-breaker, or a strainer-insulator, a contrivance made of porcelain, a non-conductor of electricity. From the picture it seems to be a sort of porcelain block through which the end of one wire is looped to extend in one direction and the end of another wire is looped to extend in the opposite direction, in such way that the wires do not come in contact at that point, so that the circuit is completely broken. There was evidence tending’ to show that this contrivance cost only eighteen cents, and could be easily used on the Dairy Company’s guy wire. Several such strainer-insulators appear to have been upon some wires, presumably guy wires, attached higher up to the tall pole. Employees of the Railway Company testified that they were always used by that company on guy wires so as to prevent a grounding and conducting of the current from any high voltag’e wire they might chance to touch or make connection with. July 31, 1922, the north fuse box, farthest from the tall pole, took fire. The fire department and the trouble man of the Railway Company came, and for a time were unable to extinguish it. Mr. F. R. Murphy, assistant superintendent - of the defendant Railway Company, in charge of the men who were vainly attempting to put the fire out, pulled out the middle fuse on the top cross-arm, thus deadening the middle primary wire. He then cut the primary wire entering the south transformer nearest the tall pole. This appeared to be necessary in order that they might put out the fire. All electric connection being then broken the fire was readily extinguished. After the fire was out Mr. Murphy proceeded to reconnect the north wire. While Murphy was thus engaered William Smith arrived at the scene for the purpose of assisting in repairing the damage done. The south primary wire had been cut as stated, so that the end hung down to about four feet above the guy wire, and the end was two or three feet above the south trans *480 former and apparently within a few inches of the tall pole. It was insulated, but the cut end was exposed. Smith climbed the pole, and got on the roof of the engine room. He then stepped upon the' Dairy Company’s guy wire, put his knee upon the double cross-beam and was in the act of raising himself up when the hanging primary wire containing1 2300 volts struck him on the shoulder. Pie pitched head foremost upon the top of the engine room and died immediately. Experts and others on the same day attempted to ascertain how he received the shock. Plaintiff introduced evidence to show that excepting the Dairy Company’s guy wire there was no ground which could have made the circuit complete when the hanging wire struck him. ' The other guy wire attached to the same place upon which he probably would have to stand at the same time was insulated with strainer-insulators. A ground wire ran down the tall pole connected towards the top with the lightning arresters. It had been cut loose at the top. It could, not have carried the current, because it was insulated. Evidence for the plaintiff further tended to show that the transformers were not “hot,” that is, not charged, with electricity; so the men, working at the time there, who had their hands on them, testified. No other wire or object which could conduct electricity at that point furnished a ground by which the current from the primary wire could have been carried through Smith’s body except the Dairy Company’s guy wire. Further it was shown that the guy wire was attached to the Dairy Company’s smokestack which was planted in such way as to afford a perfect ground, so that the circuit was complete when Smith had his foot on the guy wire and the hanging wire struck him. The evidence o'f physicians who examined him showed that the current probably entered his body at the right elbow and came out in the toe of the right foot. His shoe and sock were exhibited to indicate that. While leather is a non-conductor, Smith’s shoe sole contained tacks which could conduct the current to the wire on which he stood. *481 The defendants introduced evidence tending to show that the transformers were charged at the time; that Smith was not standing, on the guy wire when the current struck him, but on the south transformer. At the close of the plaintiff’s evidence and again at the close of all the evidence, each of the defendants presented a demurrer, all of which were overruled. The plaintiff seeks to recover against the Dairy Company for maintaining an uninsulated guy wire which formed a perfect ground when it knew, or had reason to know, that employees of the Railway Company were often obliged to go up and down the pole for the purpose of making repairs, and were likely, at any time while on or near the guy wire, to come into contact with the live wires. Plaintiff seeks to recover against the Bichler Company because that company erected the smokestack and placed the uninsulated guy wire for the Dairy Company upon the pole, when it knew the pole would be so used, being well acquainted with the dangers of electricity, and knowing the effect of installing a guy ware without insulation in that position. The plaintiff seeks to hold the Railway Company for permitting the Dairy Company to maintain the guy wire in the condition mentioned. There was1 evidence tending to show that the Dairy Company’s guy wire was placed on the pole without the knowledge or consent of the Railway Company. Oil this evidence the jury returned a verdict for the plaintiff against all three of the,defendants for ten thousand dollars; all the defendants have appealed, and the case is here by two numbers on such appeals. I. It is first claimed that the demurrer to the evidence ought to have been sustained because there is no proof that Smith was on the guy wire when he came in contact with a high voltage wire. One Arch White, who was near and saw Smith fall, testified that Smith was partly on the tall pole and partly on the cross-beam, two or three feet above the guy wire; he had his foot on the guy wire and raised the other foot to get on the cross-beam when the *482 wire struck Mm in the shoulder. A written statement made by White was offered in evidence by the defendants, in which he said that Mr. Smith stepped on the guy wire and, after he stepped on it, was starting to pull himself up, when the wire Mt him. On cross-examination Mr. White stated he didn’t know whether Smith still had Ms foot on the guy wire when the primary wire struck him; at that instant he was looking at Mr. Murphy. It was for the jury to say whether, under the circumstances, he had stepped off. Other witnesses who saw Smith fall were not certain about what he stood on or just when the primary wire struck him, but all of the witnesses placed him at the point where White described him to be in ascending the pole. Suppose we say there was no positive evidence of any witness who saw it that Smith actually had his foot on the guy wire at the moment he was struck. He was at it, had been on it, and was so near that contact with it was easy, and the evidence tends to show there was no other object near, contact with which would furnish ground and complete the circuit. Prom the circumstances the jury would be warranted in finding that he was then in contact with the only wire which would carry the current through his body. • A case was made for the jury. II. The Dairy Company and the Bichler Company claim their demurrers should have been sustained because the erection and maintenance of the guy wire, although uninsulated and dangerous, was. not the proximate cause of the death; that the immediate and proximate cause was the hanging primary wire with which Smith came in contact. Those appellants cite the case of Washburn v. Laclede Gas Light Co., 202 Mo. App. 102, where the opinion by the St. Louis Court of Appeals was approved by Division Two of this court on certification here (284 M;o. 181). The facts in that case are very similar to the facts here, but a close examination of the facts would show reason for distin *483 guishing that case from this. However, a later ruling of this court en banc, in the case of Shafir v. Sieben, 233 S. W. 419, and other oases involving the same incident, are controlling on this point. The Kansas City Court of Appeals also passed upon the same incident, in case of Daneschocky v. Seible, 195 Mo. App. 470. In the Shafir and the Daneschocky cases, the defendant, a building contractor, placed obstructions on the street so that pedestrians were obliged to walk out towards the middle of the street in passing the place, and a number of such pedestrians while passing around the obstructions were struck and killed or injured by an automobile driven by a drunken man. The contractor was held liable. Those cases are consistent with the rulings of this court in a number of cases, such as Buckner v. Stock Yards Co., 221 Mo. 700; Dean v. Railroad, 1991 Mo. 1. c. 411. Judge Ellison in the Daneschocky case cites many authorities and aptly states the doctrine in relation to proximate cause (1. c. 473): “Lawyers from early times, induced by the ordinary meaning of words, and seeming necessity, have been led into the thought that since the word ‘proximate’ means immediate, or next to, the only actionable cause is the cause which actually did the injury; and that any prior cause, no matter how closely related, was a removed cause and therefore not proximate, and therefore not actionable.” Then further (l. c. 474): “When the rule is stated in its full 'breadth, viz., that a separate intervening cause will break the line of causation leading out from the first cause and, in law, absolve the first cause from all responsibility, it is the statement of a mere arbitrary rule, which in practical application would lead to results opposed to sound reason. The rule should always be accompanied by the qualification, ‘that if the intervening act is such as might reasonably have been foreseen or anticipated as the natural or probable result of the original negligence, the original negligence will, notwithstanding such interven *484 mg act, be regarded as the proximate cause of the injury.’ ” And further (page 475): “An intervening cause should not be held to excuse the first cause, unless such intervening cause is one so unusual and so improbable as not to be reasonably foreseen or considered by an ordinarily prudent man. ’ ’ These appellants argue that the Bichler Company in placing the guy wire, and the Dairy Company in maintaining it, and the Railway Company in allowing it to be maintained on its pole, could not possibily have foreseen that a fuse box would take fire and necessitate the cutting of the primary wire. As this court said.in the Buckner case, supra (221 Mo. l. c. 710), the liability does not depend upon whether in the exercise of reasonable diligence the defendant could foresee, or ought to have foreseen the very injury complained of, but he may be held liable for anything which, after the injury is complete, appears to have been the natural and probable consequence of the act or omission. The appellants ask us to apply the rule so as to excuse them because they could not foresee nor anticipate the very situation in all particulars which produced the death of Smith. All the defendants knew, or they are charged with knowledge, that the uninsulated guy wire, attached as it was to the smokestack, afforded a ground so that it would carry a current from any charged wire that might come in contact with it. They also knew that the pole was arranged and equipped with iron spikes, or steps, for men to ascend. They knew, or had reasonable cause to know, that employees of the Railway Company were continually ascending the pole in their duties for the purpose of repairing the many high-power wires carried higher up on the pole, and that it was nothing unusual for those wires to become out of repair, requiring care. They knew that high-power wires descended into the transformers, where the current was modified for use in that part of the city, and that frequent attention to those instruments by *485 the employees of the Railway Company was required. They knew, or should have known, that at any time some contingency might happen to expose some of those high-power wires, and that there was danger of an employee of the company, in the performance of his duty, coming in contact with them while near or touching the guy. wire. In other words, they knew the g*uy wire was dangerous to anyone working about those appliances- who might come in contact with the high-power wire. The demurrers were properly not sustained on that ground. III. The appellants claim that their demurrer to the evidence should have been sustained because Smith was guilty of negligence which contributed to his death. The argument is that the live wire which had been severed was dangling before his eyes, and with the exercise of ordinary care he should have seen it, and should have protected himself from it. There is no evidence that he knew or had reason to know that the guy wire upon which he stepped was not insulated. There is no evidence that he intentionally touched the high-power wire or that he knew it was there. The witness said it ‘ ‘ struck, him. ’ ’ It must have swung against him. There were a great many things to keep his attention in climbing, and there was no evidence to indicate that he failed to use ordinary care. One Edward E. Fields testified that he warned Smith, saying: “Look out Ed, that wire is hot.” But he didn’t know whether Smith heard him or not. Fields also said he didn’t know there was an uninsulated wire there; that he supposed the guy wire had a strainer-insulator on it. Thus Fields, who was one of the foremen on the job, had no knowledge of the danger of contact with that guy wire, and there is nothing to show that Smith knew more about it than he did. Whether Smith’s negligence contributed to his injury was a question for the jury. *486 *485 IV. The Bichler Company assigns error to refusal by the court of an instruction offered by it on the theory *486 that it was an independent contractor in erecting the smokestack and in installing the guy wire. It contends that it performed that work under the direction and according to tle plan of the Dairy Company, and that it is not responsible for the result. Heizer v. Manufacturing Co., 110 Mo. 605, is cited. The evidence does not sustain that contention. The Bidder Company undertook to install the smokestack for the Dairy Company and secure it with necessary guy wires. It knew that a guy wire uninsulated attached to the smokestack would afford a ground, and it knew that in attaching such a wire to the pole it would be in the path of the employees of the Railway Company who would be passing over it in the discharge of their duty in handling dangerous wires. [See Bryson v. Hines, 268 Fed. l. c. 290;; Cedarland v. Thompson, 200 Mo. App. l. c. 625.] The theory of independent contractor did not excuse it. V. The Bidder Company assigns error to the refusal by the court of Instructions O and D, asked by it on the ground that thereby the court refused to submit d‘ues'tion of contributory negligence. The first o‘f these instructions is upon the theory that Smith “with full knowledge of such conditions, permitted his body to come in contact with the end of one of said highly charged wires.” There was no evidence that he “permitted” his body to come in contact with the wire, and the instruction does not require the jury to find any'act of his was negligent. It was properly refused. Instruction D is equally faulty, because it directs a verdict for defendant Bidder Company, if the Railway Company’s negligence contributed to Smith’s injury. The refusal of other instructions asked by appellant is assigned as error, but none of them adequately covers the facts pertinent to the point to which the instructions were directed. *487 VI. The jury returned the following’ verdict : “"We, the jury in the above entitled cause, find for the plaintiff and against all of the defendants, and we assess plaintiff’s damages at $10,000.00, pro-rated as follows: “St. Joseph Railway, Light, Heat & Power Company.............................$6,000.00 “Bichler Manufacturing Company ....... 3,000.00 “Western Dairy & Ice Cream Company .. 1,000.00” Appellants do not complain of that form of the verdict, but they complain of an instruction which the court then gave to the jury as follows: “G-entlemen of the Jury: “The verdict returned by yon is rejected by the court, because it is improper in form in part. The jury have no right to pro-rate any sum you may find for plaintiff among the defendants. The law makes full provision as to the liability of each defendant under a verdict against all of them. All that is necessary for you to do is to carefully follow that form of verdict attached to your instructions and which is suitable to your intentions.” The court could very properly have entered judgment against all the defendants on the verdict as rendered for the full amount of the verdict. Under the instruction which the court then gave, the jury returned the verdict in proper form for the full amount against all the defendants. It has been held by this court that where a jury misunderstands the instructions the court may further instruct them so that they may render verdict in accordance with the law. [State v. McNabb, 267 S. W. 606, and cases cited.] Finding no reversible error in the record the judgment is affirmed. All concur.