Choka v. Railway, Light Heat & Power Co.

"Q. Did you see Mr. Choka come in contact with any wire? A. No, sir."

Conditions.

I. It will be noticed from the photograph in the statement set out, that there were a number of wires in and about the corner of this building. Deceased was a tinner, and wanted to take down a part of the guttering shown in the picture. On this pole were three wires, wrapped around the knobs, to which there were dead ends. It is admitted that by ten minutes work these dead ends could have been insulated with rubber and made safe. This comes from an employee of defendant. It is also admitted that, although they were what are called dead ends, yet they were live ends if not insulated. Then there were wires from which the insulation had worn off. There was a sharp contest as to whether or not the deceased placed his ladder in the safest place to do the work which he was called upon to do. Suffice to say that plaintiff had evidence to show that he was an experienced and careful man, and that his ladder was placed in the safest place. From other evidence contrary inferences might be drawn. From one witness (the helper of the deceased) it appears that as he reached over to the gutter with one hand (which would be in the neighborhood of the uninsulated wires) he placed his other hand upon the upper cross-arms of the pole (near where the dead ends were wrapped around the knobs) and smoke immediately appeared in one of the fuse boxes shown in the picture. The burn appeared upon the arm and not on the legs, or upon either of them. Upon the appearance of the smoke the deceased was seen to fall backward and when taken down was dead, or practically so. There were no untoward conditions of the weather. There were these non-insulations as above mentioned. The foregoing are some of the outstanding facts. Others will be noted, if required under the points made.

II. The assignment of errors cover (1) the failure to give certain peremptory instructions, (2) the

Choka v. Railway, Light Heat & Power Co.

giving of instruction one for plaintiff, (3) the admission of incompetent and prejudicial evidence for plaintiff, and (4) admitting certain alleged opinion evidence.

The demurrer to the evidence was in three forms. The first instruction in nature of a demurrer took the usual form. The 2nd and 3rd read:

"2. The court instructs you that the deceased, William Choka, had no right to go upon defendant's pole or cross-arms, or among defendant's wires thereon, in the manner disclosed by the evidence, and you must find your verdict in favor of defendants.

"3. The court instructs you that the law did not require the defendant to anticipate that the deceased, William Choka, or any other person, might climb upon defendant's electric-light pole described in evidence or the cross-arms attached thereto, and that such person might come in contact with defendant's wires, whether insulated or uninsulated, and under such circumstances no duty rested upon the defendant to have its wires so insulated as to prevent injury to anyone who might go upon defendant's pole or the cross-arms attached thereto, under the circumstances described in evidence."

The latter two require some additional details of the facts. The picture in our statement shows the tall pole near the corner of the building. This is the northwest corner of the building. To the north of this building (which was owned by the Excello Feed Milling Company) was being built some addition to another building owned by the same company. Between these buildings was a railway track for the use of this mill. The railway car (standing east and west) is upon the track, and such a car was there at the time of the accident. To the south of the tall pole is a shorter one, and each pole is attached to the building by a cross-arm. The particular structure there was for the purpose of furnishing electric power for the mill. Part of the wires were for the building shown in the picture and part for the building to the north. Permission was obtained from the mill company, by defendant, for the erection and at

Choka v. Railway, Light Heat & Power Co.

taching of these poles to its building. The purpose, however, was to place the defendant in situation to furnish electric power to the mill company at the very best advantage. Deceased Choka and his helper were employees of a contracting firm, but had been sent over to the mill to do some work for the mill company. Deceased was an experienced tinner. As suggested above it is first contended that he did not select the safest place in which to do the work, but there is evidence both ways (but mostly for plaintiff) upon that question, and the verdict of the jury closes that matter. This verdict leaves the ladder from which plaintiff was about to do his work in the safest place for the purpose. Other question urged go to the right of deceased to be there at all, and his contributory negligence from another angle.

As said this particular pole and wire construction was made and had for the purpose of furnishing electric power (and perhaps light) to the milling company. It was by the consent of the milling company and for the mutual convenience and profit of both. The cross-arm upon which deceased placed his ladder was attached to the mill company building, as was the other cross-arm upon the shorter pole. The wires were placed in and around the mill company's building and upon its property. Defendant, when it placed those poles, cross-arms, and wire constructions, was bound to anticipate that at some time work would have to be done upon and around that building, and in the neighborbood of these wires, poles and cross-arms. The very cross-arm upon which the ladder was placed was attached to the building as well as the pole. Its use by workmen must have been anticipated. [Geisman v. Missouri-Edison Electric Co., 173 Mo. 654; Young v. Waters-Pierce Oil Co., 185 Mo. 634; Hill v. Union E. L. & P. Co., 260 Mo. 43; Von Trebra v. Gas Light Co., 209 Mo. 648; Ratliff v. Mexico Power Co., 203 S. W. 232.]

It is not a situation wherein the doctrine of a trespasser can be invoked, and those cases need not be considered. Deceased had the right to be in and around the .

Choka v. Railway, Light Heat & Power Co.

building in the performance of his work, and defendant was obligated to anticipate that workmen at some time would be there. Thus arises the duty upon the part of defendant to use the highest degree of care to prevent injury to anticipated workers having the right to be in and around its wires. The very nature of the situation demonstrates that the defendant should have reasonably anticipated workers, such as deceased, to be there, and as said, the deceased was not upon the pole, but resting his ladder upon the cross-arm, which was common both to the pole and the building upon which he was working.

There is nothing to show that deceased knew of the failure of defendant to properly insulate its wires, or the dead ends thereof. The positive evidence of defendant's witnesses is that high voltage wires could be insulated, so as to insure safety.

The foregoing answers the suggestions contained in defendant's instructions 2 and 3 in the nature of demurrers. All demurrers were properly overruled.

III. The next assignment is lodged against instuction number 1 given for the plaintiff. This instruction is excessively long, and uselessly so, but it is as plain a statement of the law as could be found in an instruction of such useless length. Learned counsel for appellant urge that its very length is confusing, and this I have condemned in two or three dissents. In one the dissent was solely on the ground that the verbosity and length of the instruction was misleading to the jury. Suffice it to say my objections fell as water upon the duck's back, and such kind of instruction was approved, or tacitly approved. I had one concurrence in the person of DAVID E. BLAIR, J. The instruction was much like the one here, except it was longer and more complicated. [Wolfe v. Payne, 294 Mo. 1. c. 189.] In this case I said:

"I dissented in Division for the reason that the principal instruction for the plaintiff was of such length that no average jury could carry the thought supposed to be in the instruction. I think that there are substan303 Mo. Sup.-10.

Choka v. Railway, Light Heat & Power Co.

tial errors in this instruction, leaving out of consideration its length. However, its length has been sufficiently condemned by this court, and I go no further. I doubt whether or not there is liability, but this I will not discuss, as the length of this instruction condemns the trial nisi. [Williams v. Ransom, 234 Mo. 1. c. 66; Stid v. Railroad, 236 Mo. 398; Crowl v. American Linseed Oil Co., 255 Mo. 331; Andrew v. Linebaugh, 260 Mo. 651; Heman v. Hartman, 189 Mo. 20; Sidway v. Live Stock Co., 163 Mo. 376.]

"Think of five printed pages for an instruction in an ordinary damage suit! It shocks the experience of both bench and bar. No jury can carry the real thread of such an instruction, if it can be said that it has a thread. For this reason, if not for others, I dissent."

Five of my brothers, in Wolfe's Case, said such an instruction was all right, and bowing to the majority rule, I must say that the instruction here, so far as length and the things that grow out of its length are concerned, is all right. I sent Wolfe's Case to Banc, and see no reason to send this to that court, in view of the opinion in Wolfe's Case.

There are one or two additional objections to the instruction, but they are without substance. If the length of it did not confuse the jury, the other matters would not mislead or harm them. We are forced to rule the instruction to be well enough, although I am (personally) not wrapped up in such a ruling. The instruction meets the ruling of this court, however, and at that I let it go.

We have examined the objections as to evidence, and find them without substance. The judgment must be affirmed, and it is so ordered. All concur.