Grzeskoviak Ex Rel. Grzeskoviak v. Union Electric Light & Power Co. , 299 Mo. 116 ( 1923 )

This is an appeal from an order granting a new trial after judgment for appellant in his action for damages for injuries resulting from burns he suffered when a wire charged with electricity fell upon him in the yard adjoining the house in which he was living with his parents.

The second amended petition, upon which the case was tried, alleged, among other things, that respondent maintained upon poles in the alley back of the Grzeskoviak residence wires "charged with a heavy voltage of electricity" and that this current rendered these "wires extremely dangerous unless properly and securely insulated so as to prevent the escape of electricity from them;" that the Kinloch Telephone Company maintained the line of poles in the alley upon which the mentioned wires of respondent were maintained and also maintained telephone wires upon the same poles in such close proximity to respondent's wires that there was "danger at all times that the current of electricity" upon respondent's wires "would escape from its wires and come in contact with the telephone wires of said telephone company;" that one of the telephone wires extended from the poles in the alley in the rear of the residence of appellant's father across the lot on which that residence was situated; that this telephone wire was so placed and maintained "that it was likely to fall and conduct a dangerous current of electricity from the defendant's said electric wires into the yard and upon the grounds of the premises so occupied by the plaintiff's father and his family;" that on and long prior to October 27, 1918, all these facts were "well known to the defendant, or by the exercise of ordinary care on its part would have been known to it long prior to said date, and that by reason of said facts and circumstances above set forth, it was necessary for the defendant, in order to avoid injury to persons likely to come in contact with said Kinloch Telephone Company's telephone wire, to keep the defendant's said electric wires at all times safely and securely insulated so as to prevent the escape of electricity therefrom;" that "neglecting its duty in said behalf, the defendant, on the 27th day of October, 1918, and long prior thereto, negligently failed to keep its said wires insulated with proper and safe insulating material, and, as a result of the negligence of the defendant in neglecting and failing so to keep said wires insulated, a strong and dangerous current of electricity escaped from its said wires, on said 27th day of October, 1918, and into the telephone wire of said Kinloch Telephone Company, above mentioned, and that on said day said telephone wire fell and came in contact with . . . the plaintiff, who was in the back yard of the premises occupied by his father and family, . . . causing a strong current of electricity to pass from said wire into the plaintiff's body, . . . and inflicting upon him" injuries which are particularly described. The prayer is for $50,000.

The evidence tends to show that respondent maintained in the alley back of 4943 Thurston Avenue, appellant's father's place of residence, three low-tension wires attached to insulators upon a cross-arm fastened to a Kinloch telephone pole; that these wires led out from a transformer attached to a pole about one hundred feet north. Into this transformer ran one of respondent's high-tension wires which carried a current with a voltage of about 2300. The function of the transformer was to "step down" the high-tension current to a voltage of 110 and pass it into the low-tension wires which served the homes along the line with electric current. The transformer had theretofore been observed to be leaking. The telephone poles which carried the low-tension wires also carried telephone wires. A guy wire ran from a point eight or ten feet high on the pole back of No. 4943 to the cross-arm on the pole upon which the transformer was attached or suspended. The transformer and the electric wires were a part of respondent's system. From a bracket on the pole in the alley back of 4943 two Kinloch telephone wires led across the corner of the yard in which No. 4943 stood to a house on the adjoining lot to the south. They were attached to a bracket on the residence. During the night of October 26-27, there had been a rain fall of nearly one inch. The poles and ground were wet. There was a high wind which had blown during the night and was blowing about fifty miles per hour at the time appellant was hurt. The evidence tends to show that winds of the sort were not unusual in the sense that they had not occurred before or were not to be expected on occasions. A little after noon appellant and several other persons were in the yard at 4943, and the evidence tends to show that one of the telephone wires across the corner of the yard parted and that part, the end of which was still attached to the pole in the alley, fell upon appellant and he was thereby shocked and burned. The jury returned a verdict of $28,500. The trial court ruled upon the motion for new trial as follows:

"I am of the opinion that I committed error in giving instruction numbered 1, at the request of plaintiff, for the following reasons: The second amended petition, on which the case went to trial and was tried, held the defendant to the exercise of ordinary care only, and for that reason Instruction No. 1 enlarges the issues made by the pleadings, and is, therefore, erroneous. I am also of the opinion that the court committed error in refusing to give to the jury Instruction No. 5 offered by defendant. In view of the foregoing, it will not be necessary to discuss the question whether or not the verdict was excessive. I am of the opinion that the verdict was somewhat excessive, but if that had been the only ground urged by the defendant for a new trial, that could have been cured by ordering plaintiff to enter a remittitur. For the foregoing reasons defendant's motion for a new trial will be sustained."

Instruction numbered 1, to which the court referred, informed the jury that if they found certain facts "then the plaintiff is entitled to recover, unless you find from the greater weight of the evidence that said defendant could not have prevented the escape of said electric current by the exercise of the highest degree of care of a very prudent person engaged in the business of transmitting electric current under the circumstances."

Instruction 5, which the respondent offered and the court refused, deals with the question of notice to respondent of defective conditions, if any.

The evidence tended to show that the shock rendered appellant unconscious. From this state he recovered about the time a physician, who had been promptly summoned, arrived at the home. Appellant was found to be suffering from a severe shock. His heart was thereby rendered weak, for the time, and he had several bad burns. He ultimately lost about one-half of the second and third fingers of the left hand. There were burns on the palm and back of the left hand and on the left wrist. This hand had not developed equally with the right hand since the injury and its usefulness was very considerably impaired by weakness, the loss of parts of two fingers and the interference of scar tissue with the movement of the portion of the hand which remained. Appellant's hands were examined and compared before the court and jury. The burns on the abdomen, back and leg were severe, but had healed and were no longer painful. Appellant was in the hospital three or four days and was confined to his bed at his home only a few days. He was unable to leave the house for a considerable time. The burns were acutely painful for two or three weeks after the injury and had to be dressed for two or three months. The shock rendered him nervous for a time, and the evidence tends to show he was still somewhat so at the time of the trial. The burn on the boy's side was about the size of the palm of the hand; that on the abdomen was about two inches square; and that on the leg was "probably an inch and a half." The scar tissue will interfere with the nutrition of the left hand and it will never become as strong as the other hand. It "cannot be built up." The hand is not useless, however. Appellant's general health has not been affected, according to his physician. He was not disfigured otherwise than stated.

Several questions raised are based upon the state of the pleadings and the use of particular words in the instructions and upon testimony ambiguous in its nature, i.e. like the testimony, unexplained, of appellant that he noticed the transformer was "leaking." Since the case must go back on an affirmance of the order for any reason, there is no need to discuss those questions which easily can be eliminated on a retrial.

The trial court did not put its order on the ground that the verdict was excessive. Ordinarily this would put the burden upon respondent, if it relied upon the excessiveness of the verdict to sustain the order, to show that excessiveness despite the trial court's finding against it. That is because the trial court, with the witnesses before him, has found against the claim that the verdict is excessive. In this case the trial court found as a fact that the verdict was excessive. In examining the claim of respondent that the verdict is excessive, this finding of the court is to be taken as true unless the evidence shows the contrary at least clearly enough to make out an abuse of discretion. It is apparent that no such showing is made by the evidence in this case. This court is in no position to weigh the evidence on this point and overturn the finding made by a trial court which had the injured person before it. Neither can this court, were this the only valid ground for new trial, order a remittitur here, according to a recent decision of Court in Banc. [Gaty v. United Rys.,286 Mo. 503.] In any event, the judgment on an appeal from an order granting a new trial in an action at law must either order the reinstatement of the verdict and judgment thereon, or must affirm the trial court's order and remand for the new trial which has been granted.

In the circumstances, we are of the opinion that the question of excessiveness of the verdict requires an affirmance and remandment, and also of the opinion that the other questions, since a new trial is granted, can be, in the main, eliminated. The contention that the evidence is not sufficient to take the case to the jury could be decided, in the circumstances, solely on the assumption that the evidence is to be the same on the next trial. This assumption we are not required to make. The point will be left open. The order is affirmed and the case remanded. All concur.