State Ex Rel. Missouri Public Utilities Co. v. Cox

The opinion of the Springfield Court of Appeals is reported as Book v. Missouri Public Utilities Co., 242 S.W. 433. Suit for negligently permitting electricity to escape from wires, causing the death of Fred H. Book. In the court below, verdict and judgment for plaintiff administratrix for $5000. Judgment affirmed. Relator asks us to quash the record of the Court of Appeals for that its opinion disregards the latest rulings of this court. Relator maintains, among other contentions, that the opinion of the Court of Appeals contravenes the last previous rulings of this court, on the subject, found in Hays v. Hogan, 273 Mo. l.c. 25, 200 S.W. 292; Hamilton v. Railroad, 250 Mo. l.c. 722, 157 S.W. 622; Swearingen v. Railroad, 221 Mo. l.c. 659, 120 S.W. 773; State v. Lackland, 136 Mo. l.c. 33, and Yarnell v. Railroad,113 Mo. 579, for that plaintiff's recovery depends on combined presumptions. In the Yarnell Case, Yarnell was found dead at the end of the depot platform, having been decapitated, it would seem, by the cars. The court found the record utterly barren of any testimony showing or tending to show how or in what way Yarnell came to his unfortunate death. The court was asked to presume that Yarnell was in the exercise of due care, and defendant was negligent. Held: "Not allowable to build one presumption on another, and thus make a cause of action." In the Lackland Case, defendant was charged with stealing hogs. Ford never saw the hogs which defendant sold and no witness identified them as Ford's hogs. *Page 431 The jury were asked to erect presumptions of guilt and ownership. Held, that "one presumption cannot stand as a postulate and the other as an inference therefrom." In the Swearingen Case, the deceased was last seen on the engine. In order to reach a car from which plaintiff contended deceased was knocked, by striking an iron post at the side of the track, while standing on a ladder examining a hot box, deceased would have had to walk over about ten cars. There was no evidence that the car was equipped with a side ladder, that deceased was struck by the post or how he met his death. Held, that it was sought to recover by building one presumption on another. In the Hamilton Case, the body of deceased was found on the morning after two trains had traversed the track he was last seen to be walking on. Hence, it is legitimately inferable that he was struck by the train, but it was not legitimately inferable from any fact proven that he was seen or seeable on the track in a position of peril and at a distance sufficient to permit the stoppage of the train. Held, that it would be resting a second inference on a first inference. In Hays v. Hogan, the father maintained and gave his son the use of an automobile whenever requested. Without obtaining consent, the son, on his own pleasure bent, in the use of it injured a public highway traveler. The court refused to build inferences that the son was the agent of his father and that the agent was acting within the scope of his authority. In reviewing, by certiorari, the opinion of the Court of Appeals, we may only inspect the evidentiary facts found therein to ascertain if its ruling conflicts with the latest rulings of this court on the subject. [State ex rel. v. Reynolds,272 Mo. 588, l.c. 596; Ex parte Dick v. Ellison, 287 Mo. 139.] The plaintiff pleaded general negligence, relying on the doctrine res ipsa loquitur. The Court of Appeals held the doctrine applicable to the facts. The facts as related by it demonstrates: There were no eye witnesses to the tragedy. Deceased was found *Page 432 dead prostrate on the ground, his feet about eighteen inches north of the north line of the stockade, and about twenty inches east of the west line, and immediately under the nearest high-tensioned wire. If he had been standing, his head would have been five and one-half to six feet from said wire. The stockade, about thirteen feet square, was inclosed by a picket fence about seven feet high, with no entrance. It housed transformers, which sat on the ground, to which, on poles, high-tensioned electric wires, twenty feet high and fastened to insulators, brought 23,000 volts, and when reduced to 2,300 volts by the transformers, were used to operate the farm pump. The Court of Appeals found that all proper precaution had been taken in isolating the high-tensioned wires, and that the wires leading from the transformers to the pump used were carried at a reasonably safe disance above head. There was a burn in the palm of deceased's right hand, caused, it may be inferred, by a detached wire, some three or four feet long, found on the ground near his extended hand; and a burn on his foot or big toe, from which it may be deduced that electricity caused his death. Defendant owned and controlled the electric force in proximity to which deceased was found. I. Leading from one of defendant's poles between two high-powered electric wires and anchored in the ground was a guy wire about nine feet from which the dead body of deceased was found. The opinion of the Court of Appeals states that: "The only explanation as to how he came in contact with it (the electricity) that can be thought of is that it escaped down this guy wire, or that plaintiff's husband purposely and voluntarily and negligently, if you please, reached through the picket fence pen, and touched the high-powered wire with the wire which was found near his hand after his death." The Court of Appeals finds some substantial evidence, they say, that he touched the guy wire, and that the guy wire was charged with electricity. They base their findings on the major premise that where there is no testimony whatever showing the conduct of the deceased at *Page 433 the time of the injury, the law presumes that he conducted himself with due care. We submit to the presumption as correct. [Buesching v. St. Louis Gaslight Co., 73 Mo. 219, l.c. 233.] But we must also presume that defendant was in the exercise of due care. As is said in the Yarnell Case, 113 Mo. l.c. 579, the one presumption rebuts and neutralizes the other, like the conjunction of an acid and alkali. The Court of Appeals say there is evidence in this case, which they say they have quoted, which shows that the guy wire maintained by it and in close proximity to which plaintiff's husband was found dead, was shown to have been so placed as to have permitted its electricity to escape through such guy wire and thus become dangerous to those who might be passing around or near it. The only evidence that approximates that from which they say they quote is that the guy wire was so loose and slack that it could be pushed in either direction in contact with the two high-tensioned wires, or could be blown to contact with them by the wind; and that after the deceased died, a horse, while grazing, was seen to walk under this guy wire and receive a shock. Loath as we are to differ with the learned court, we do not think that the above testimony rises to the dignity of evidence. There is no testimony that the guy wire actually came in contact with one of the two high-tensioned wires, or that it was blown to contact. The circumstances and conditions under which the horse received the shock were not shown. Without evidence that the conditions were the same, we may not assume that they were. In order to assume that the guy wire was charged with electricity at the time of the death of deceased, it is necessary to infer that it was pushed to contact with the two high-tensioned wires or blown to such contact by the wind. Interpreting the evidence in the case at bar, we have no circumstantial fact in evidence, from which to draw the conclusion, that the guy wire, at the time of the demise, was charged with electricity. To hold defendant *Page 434 guilty of negligence, we must also presume that deceased was in the exercise of due care, that he touched the guy wire and that the guy wire was pushed or blown to contact with the two high-tensioned wires. While these presumptions are vital to plaintiff's recovery, still they may not be used to hold defendant responsible, for they are merely presumptions builded together. There is no evidence in the record, positive or circumstantial, that the things, just above mentioned, happened. We have held in many cases that a presumption may not be based on a presumption so as to permit a recovery. As the doctrine of res ipsa loquitur lies on the foundation of negligence, there must be some fact from which negligence may arise. As was said in Pointer v. Mountain Ry. Const. Co.,269 Mo. 104, 189 S.W. 805: "The mere fact that the plaintiff was injured is not of itself evidence of defendant's negligence. Nor will the mere fact of injury without other facts authorize the application of the rule of presumptive negligence as such rule is recognized by the doctrine res ipsa loquitur. Before the rule res ipsaloquitur can be invoked there must be shown facts, other than of the mere fact of injury to plaintiff, from which the negligence of defendant can be reasonably inferred." That the deceased was found dead, killed by electricity, is not sufficient to charge defendant with negligence. It may be that deceased touched the guy wire, but that it was not charged with electricity. If he touched it, and it was not so charged, defendant is not liable. So far as the evidence makes manifest, defendant may not be charged with negligence relative to the seven-foot fence enclosing the transformers or the wires within, or relative to the high-tensioned wires, immediately and about eleven and one-half or twelve feet above the place where deceased was found, and which it was possible for deceased to have touched with the detached wire. The record fails to reveal the particular thing that electrocuted deceased. Who knows? We may speculate that deceased touched the guy wire and that it was alive, but no tangible evidence is produced from which we may, by logical or *Page 435 sound reasoning, reach a conclusion, that he both came in contact with the guy wire and that it was charged. To hold otherwise, it would be necessary to contravene and disregard a well settled and sound rule of law. As the evidence demonstrates that defendant's liability was builded on presumptions or inferences, dependent on other presumptions or inferences, and was therefore founded on mere conjecture, the opinion of the Springfield Court of Appeals contravenes the decisions of this court heretofore mentioned, and the record and judgment of that court is quashed. Higbee, C., concurs; Railey, C., not sitting.