author: LAMM, P. J.

text:
    BERTHA MAY FULWIDER and EVA MYRTLE FULWIDER et al., Minors, by HOMER HALL, Curator, Appellants, v. TRENTON GAS, LIGHT & POWER COMPANY, THOMAS F. FULKERSON and JAMES B. CARNES.
    Division One,
    February 25, 1909.
    1. PLEADING: Misjoinder of Parties: Demurrer or Answer. If facts showing a misjoinder of parties plaintiff or defendant do not appear on the face of the petition, so the objection can be raised as an issue at law by demurrer, they are well pleaded by answer. But an answer cannot be made to swap places with a demurrer. By answering over, defendants waive the misjoinder of parties defendant, if the issue can be raised by demurrer.
    2. -: -: Tortfeasors. Tortfeasors arfe liable jointly and severally. Every one doing the negligent injury may be sued. And a petition charging that defendants negligently caused the injury does not wrongfully join parties defendant. Nor is it necessary to plead evidential facts showing how defendants were united in their joint venture, whether by contract, partnership, or by some implication of the law.
    3. NEGLIGENCE: Death of Husband: Suit by Minors: Presumption None by Wife: Negative Averment. A peremptory instruction at the close of the entire case to find for defendants cannot be sustained on the ground that plaintiffs did not prove a negative averment contained in their petition that the wife of deceased did not sue within six months after his death. The widow during the first six months after the death of her husband may appropriate to herself the statutory action to recover damages for his negligent killing, and if she does not sue his minor children may do so during the next six months; and absent a plea in abatement to the minors’ suit that another suit was pending, and absent proof one way or the other, no presumption can be indulged that the widow had appropriated the action. Besides, the averment that the widow had not sued is a negative one, and the means of disproving it is peculiarly within defendants’ knowledge and' power, and unless they disprove it the averment will be taken as true.
    4. -: -: -: -: -: General Denial. Whether or not defendants’ general denial put the minor plaintiffs on their proof of their averment that the widow failed to sue, is discussed in the opinion, but the question is reserved, because its decision is not necessary to a decision of the case.

      5. -; -; -; -: -: Not Raised Below: Mandatory Instruction: Appellate Practice. Where the record merely shows that defendants asked and received a mandatory instruction in the nature of a demurrer, the minor plaintiffs cannot he heard on appeal to argue that the point that there was no proof that the widow had not sued for the death of her husband within six months was not raised below and therefore cannot be raised on appeal. If on the whole record the instruction was properly given for any reason, the ruling will be upheld. The rule of appellate practice in such case is that reasons assigned on the record, or existing and not assigned, are immaterial on appeal.
    6. -: Recovery: Responsive to Petition: Inexperience: Hidden Dangers. Where plaintiffs rested their case by their petition on one theory, they cannot recover on a different theory, or have reversed the court’s ruling directing peremptorily a verdict for defendants. Where they do not allege in their petition that their father was inexperienced as an engineer, or that there were hidden dangers connected with the 'stopping of defendants’ engine “off center,” or that it was his duty to stop it off center, or that there was a peculiar way to stop the engine off center, and peculiar and unknown dangers incident to that, they cannot recover on the theory that he was inexperienced and that it was defendants’ duty to warn him of the peculiar danger to attempt to stop the engine with a steel rod in an unusual way. Especially should this be the ruling where the evidence shows that he was an experienced engineer, and there was nothing singular or peculiar in the described plan in use in stopping the engine.
    7. -: -: -: Unsafe Place: Facts Not Pleaded. The petition charged that- the engine house floor was unsafe in being rough and uneven “with boards and timbers nailed across,” and dangerously unsafe because “covered with grease,” whereby deceased engineer was caused to stumble and slip, etc., and none of these allegations were proved. Held, that plaintiffs cannot on appeal, in the face of a peremptory instruction given for defendants, substitute for these allegations evidence of a hole in the floor and an unsafe narrow foot plank, or be permitted to recover because there was near the engine a long and wide hole, over which was laid a board from six to twelve inches wide, and that because of the hole deceased could not stand in the proper place to insert the steel rod in the engine’s wrist plate.
    8. -: Fencing Engine: Use of Steel Rod in Stopping Engine. There was no testimony tending to show that the engineer slipped or stumbled upon the rough, uneven and greasy " floor, and thereby fell or was thrown against the exposed and unguarded belts and gearing of any machine, as alleged in the petition, and which charge is the gist of the cause of action. 'To the contrary, the proof shows that he shut off the steam to close down the engine, and without adjusting the eccentric rod with a block, and without awaiting the slowing down of the fly wheel, voluntarily took a dangerous position in the line of the stroke of the engine and tried to manipulate the wrist plate with a steel rod in order to stop the engine off center. In doing so, he received somewhere on his person, from the steel rod, the full force of the engine, and was hurled towards the dynamo, and killed. Held, even though it be allowed that defendants should have fenced their dangerous machinery, yet failure to fence was not the proximate cause' of his death, but his negligent placing himself in a perilous position and his negligent manipulation of the engine.
    9. -: Absence of Light. Unless the insufficient light was a causal feature in deceased’s death, or if the light was insufficient, means were at hand when the electric light ceased, by the shutting down of the dynamo, to light the gas, no recovery can be allowed on that theory.
    Appeal from Grundy Circuit Court. — No». G. W. Wanamaker, Judge.
    Affirmed.

      Geo. A. Adams and Hall & Hall for appellants.
    (1) It was the duty of defendants to construct guards around the belts and other machinery to protect their employees while operating the same, and their failure to do so rendered them liable for the damages resulting from such neglect and failure. R. S. 1899, sec. 6433; Colliott v. Am. Mfg. Co., 71 Mo. App. 170 ; Blair v. Heibel, 103 Mo. App. 633; Stafford v. Adams, 113 Mo. App. 721; Morgan v. Hinge Mfg. Co., 120 Mo. App. 590; Millsap v. Beggs, 122 Mo. App. 6; Lore v. Am. Mfg. Co., 160 Mo. 621; Henderson v. Kansas City, 177 Mo. 492. “The purpose of the statute is to provide for the safety of the employees in a mode which the common law does not.” Colliott v. Am. Mfg. Co., 71 Mo. Ápp. 171; Blair v. Heibel, 103 Mo. App. 634; Millsap v. Beggs, 122 Mo. App. 10. (2) Defendants were also guilty of negligence in leaving the floor out and a hole between the engine and the belt where deceased had to stand while stopping the engine, and with nothing but a narrow six-inch board to stand on. It was the duty of defendants to furnish deceased a reasonably safe place to work. Pugler v. Bothe, 43 Mo. App. 44; Zellars v. Missouri Water & Light Co., 92 Mo. App. 117; Parsons v. Pack. Co., 96 Mo. App. 382; Carter v. Baldwin, 107 Mo. App. 228; Dayharsh v. Railroad, 103 Mo. 570; Herdler v. Stove & Range Co., 136 Mo. 15; Doyle v. Trust Co., 140 Mo. 18; Minnier v. Railroad, 167 Mo. 112; Smith v. Peninsular Car Works (60 Mich. 501), 1 Am. St. Rep. 542. (3) Deceased in entering the employ of defendants did not assume the risk incident to the defendants’ failure to construct guards to protect their employees from the danger from the exposed machinery; he did not assume the risk of defendants’ negligence. Pauck v. Beef & Provision Co., 159 Mo. 477; Stafford v. Adams, 113 Mo. App. 717. (4) While the evidence is that deceased ran an engine in a mill, and fired a railroad engine, and that the engine he was running at the time, the machinery and surroundings were all open and obvious to Mm, the undisputed evidence is that he had never run, and had no experience whatever in running, an electric light plant such as that, and there is no evidence that he was instructed how to run, start or stop this engine, or had ever seen it started or stopped. He was wholly inexperienced in the particular duty engaged in at the time of Ms death. The law made it the duty of defendants to warn him of the danger in stopping the engine too soon after the steam had been shut off and without the use of the block. Their failure to do so was actionable negligence. Nairn v. Nat. Bis. Co., 120’ Mo. App. 147; Nicholds v. Plate Glass Co., 126 Mo. 64; Dean v. Woodenware Works, 106 Mo. App. 180. (5) The burden was upon defendants to prove that deceased was guilty of contributory negligence. Buesching v. Gaslight Co.. 73 Mo. 219; Parsons v. Railroad, 94 Mo. App. 293; Mitchell v. City of Clinton, 93 Mo. 158; Bluedorn v. Railroad, 108 Mo. 448. (6.) The question of the negligence of deceased under all the circumstances was a question for the jury as the triers of the facts, and not a matter of law for the court.” Hamilton v. Mining Co., 108 Mo. 376; Henderson v. Kansas City, 177 Mo. 493; Montgomery v. Railroad, 181 Mo. 477; Nicholds v. Plate Glass Co., 126 Mo. 65; Kane v. Railroad, 100 111. App. 181; Hoher v. W. P. Nelson Co., 101 111. App. 336.
    . E. M. Harber, ,A. G. Knight, II. G. Smith and E. B. Sheets for respondents.
    (1) The court properly sustained defendants’ demurrer to. the evidence. Although plaintiffs allege in their petition that Mary Alice Fulwider, the mother of plaintiffs, had failed to institute her action for the death of her deceased husband in the time provided by law, they wholly failed to prove such allegation, in that no evidence whatever concerning this essential fact was adduced, and, hence, the jurisdiction of the trial court was defeated. Barker v. Railroad, 91 Mo. 86; McIntosh v. Railroad, 103 Mo. 131; Sparks v. Railroad, 31 Mo. App. 114; Packard v. Railroad, 181 Mo. 421; Poor v. Watson, 92 Mo. App. 89; McNamara v. Slavens, 76 Mo. 329; Hamilton v. Railroad, 39 Kan. 56; Case v. Cordell Zinc & Lead Mining Co., 103 Mo. App. 478. (2) In considering the question of contributory negligence the fact that deceased had been working only a shprt time before receiving his injuries is immaterial. Smith v. Box Co., 193 Mo. 734; Millsap v. Beggs, 122 Mo.. App. 7. (3) The evidence failed to show that defendants did not furnish deceased a reasonably safe place to work. Witness Hannan testified that when deceased applied the rocker bar he was standing on a perfectly solid floor of lumber and that it was comparatively a new floor. However, if deceased had been standing on a narrow six-inch board, as asserted in appellant’s statement and brief, he would be held to have assumed the risk under the rule announced in Fugler v. Boothe, 117 Mo. 475. (4) On accepting employment a servant assumes all the ordinary and usual risks and perils incident thereto, whether it be dangerous or otherwise. Haviland v. Railroad, 172 Mo. 106; Beasley v. Transfer Co., 148 Mo. 413; Bradley v. Railroad, 138 Mo. 293; Winkler v. Basket Co., 137 Mo. 394; Smith v. Hammond Packing Co., Ill Mo. App. 13; Depuy v. Railroad, 110 Mo. App-. 110; Nash v. Dowling, 93 Mo. App. 156; Halliburton v. Railroad, 58 Mo. App. 27; Roberts' v. Tel. Co., 166 Mo. 370. It is not negligence for a master to set his servant to a piece of work where such servant is of sufficient age and intelligence to appreciate the risk which is both patent and incident to the particular work. Evans v. Mfg. Co., 5 Misc. (N. Y.) 330, 25 N. Y. Supp. 509. If the servant has a general knowledge of defects sufficient to charge-him with knowledge of danger, he assumes the risk although he may not know of the particular defects which cause the injury. 26- Cyc. 1202. The servant need not have absolute knowledge of the risks, if they are such that an ordinarily prudent man under the circumstances could by reasonable diligence have discovered them. Clark v. Railroad, 179 Mo. 66; Lucey v. Hannibal Oil Co., 129 Mo. 32; Steinhauser v. Spraul, 127 Mo. 541; Gibson v. Railroad, 46 Mo. 163; Beymer v. Hammond Packing Co., 106 Mo. App. 726; Harrington v. Railroad, 104 Mo. App. 663; Beckman v. Anheuser-Busch Brewing Assn., 98 Mo. App; 555; Cothron v. Cudahy Packing Co., 98 Mo. App. 343; Franklin v. Railroad, 97 Mo. App. 473'.
   LAMM, P. J.

Suing for the wrongful death of their father and putting in their evidence in that behalf, an adverse verdict was coerced by an instruction in the nature of a demurrer at the close of their case, and plaintiffs appeal.

The petition counts on two theories. One is that defendant corporation, Fulkerson and Carnes were running and operating an electric light, gas and power plant in the city of Trenton and used in their said business certain dangerous machinery, consisting of engines, belts, drums, shaftings, gearing, etc., which machinery was negligently left unfenced, whereby J. E. Fulwider, father of plaintiffs and an employee of defendants, was killed. That is to say, by the first theory of the case a duty was raised to fence dangerous machinery by statute and that there was an actionable breach of this duty, resulting in Mr. Fulwider’s death. The other theory is that defendants owed a common law duty to Mr. Fulwider to furnish him a reasonably safe place in which to work and breached such duty, in that they (to quote from the petition) “failed and neglected to furnish their said employees a reasonably safe and suitable place in which to work, and carelessly and negligently suffered and permitted the floors in the building in which said machinery and other appliances above mentioned were situated and where their said employees while engaged in running and operating the same had to work, to become rough and uneven with boards and timbers nailed across and over the same and permitted the same to become and remain covered with grease and to become and remain unsafe, and failed and neglected, carelessly and negligently, to furnish sufficient lights so as to enable their said employees to perform their said work with reasonable safety.”

The petition further charges as follows:

“Plaintiffs further state that on said 27th day of January, 1904, their said father, J. E. Fulwider, was in the employ of the defendants assisting in running, operating and working about said plant and establishment and the said shafting, belts, gearing, drums, engines and other machinery and appliances therein, and that while he was so engaged and employed .in the discharge and performance of his duties, and without fault or negligence on his part, hut by reason of the said failure and neglect of the defendants to safely and securely guard and protect the said engines, belts, shafting, drums and other machinery and appliances as aforesaid, and by reason of the said failure and neglect of the said defendants to furnish their said deceased employees a reasonably safe and suitable place in which to work and sufficient lamps and lights to enable him to see in doing his said work, the said J. E. Fulwider was unable to see so as to discharge his said duties in safety and slipped or stumbled upon said rough, uneven and greasy boards and floor and thereby and by reason thereof and by reason of the said failure and neglect of defendants to properly guard, enclose and protect said machinery, engines, belts, shafting, gearing, drums and appliances as aforesaid, he fell or was thrown against and onto ■one of the said exposed and unguarded belts and gearing of said plant and establishment and was dragged or drawn into the said machinery, wheels, drums and gearing of said plant and establishment and ivas thereby crushed, mangled and killed

Two- answers were filed, one by the corporation and the other by the individual defendants.- These answers make an issue on the appointment of Homer Hall as curator of the minor plaintiffs and allege that the probate court making it had no jurisdiction to do so. These features are not germane to any error assigned, and may be laid on the shelf. A plea of contributory negligence is common' to both answers. There is, too, a common averment of assumption of risks and a general denial.

The answer of the individual defendants is more than a general plea of contributory negligence. It specifies a bundle of acts which in the aggregate go to make up the alleged negligence of decedent, vis.:

Defendants further say that the death of said J,. E. Fulwider was caused and occasioned by his own negligence and carelessness in the manner -as they are informed and believe and aver the facts to be, when he undertook to perform certain duties of the Trenton Gras, Light and Power Company in that he wrongfully and negligently undertook to stop the engine, in use by defendant Gras, Light and Power Company, and of which, as well as the other machinery and appliances, he had charge, management and control, by the use of a certain iron ro.d and'physical exertion and efforts upon his part and by placing himself in an improper and unnecessary position, without stopping said engine by the use of certain throttle valve and appliance made, intended and provided for that purpose, and without'after applying said throttle valve and appIE anees so made, intended and provided for the stopping thereof, waiting, as common prudence and proper regard for his own safety would and did require he should, for said engine to stop1 of its own momentum and volition, and that except for the reckless, negligent and careless acts and conduct of deceased, which contributed directly and in fact caused his death, he would have received no injury resulting in his death or otherwise.”

The answer of the individual defendants further pleads a misjoinder of parties defendant. It complains that the petition does not aver that there was a partnership between the corporate defendant and Carnes and Fulkerson in carrying on the business of manufacturing and selling gas, light and power. It complains that there is no allegation showing a joint operation of the plant or joint liability of defendants.

The case was heard as if a reply was filed, though we find none in the record.

Any facts material to a determination of questions raised on appeal will appear in the opinion.

I. If facts showing a misjoinder of parties plaintiff or defendant do not appear on the face of a petition so the objection can be raised as an issue at law by demurrer as provided by statute (R. S. 1899, sec. 598), they are well pleaded by answer. In this case the individual defendants plead no facts in their answer showing a misjoinder of parties defendant, but by frugal short-cut in procedure they cut around a demurrer and raise a demurrable issue by answer. If an answer can swap places with a demurrer, then the ancient and honorable office of the latter is vacated by one stroke once for all. If we tolerate that view then the plea of demurrer becomes a vermiform appendix (to speak metaphorically) in the body of the law, fit only for the present fashionable use of being cut out as with a surgeon’s knife, and all the learning on that score is reduced to dust and ashes. We must adhere to established rules or we will have chaos instead of order in administering law.

Defendants insist there was a misjoinder of parties defendant and that the peremptory instruction may be sustained on that theory. On this head, we hold, first, that they did not properly raise the question below; second, that they waived it by answer; and, third, that the petition is sufficient in the particulars assailed. This latter, mainly because tortfeasors are liable jointly or severally. I may sue one or all of those doing me a negligent injury. The ultimate fact I must plead is that defendants negligently injured me in this, that or the other way. In this case the petition alleges “the defendants were running, managing, operating and controlling” the gas, electric and power plant and the “engines, boilers, belts, drums, shaftings, gearings,” etc.; that defendants owed a duty to decedent, setting it forth; and that ‘ ‘ defendants ” carelessly and negligently failed and neglected to do their duty in protecting their dangerous machinery, and negligently failed to furnish a safe field of operations for their employee. The petition charges that decedent was in the employ of ‘ ‘ defendants ’ ’ and was killed through their negligence. In fine, it is a good petition. It was not necessary to plead evidential facts showing how defendants were united in their joint venture, whether by contract, partnership, or by some implication of the law. Not only was the petition good, but the proofs tended to east liability on all the defendants, if any liability existed at all for the death of Fulwider. Hence, the peremptory instruction cannot be sustained on the insufficiency of the petition (or failure of proof) in that regard, and the point is ruled against defendants.

II. Counsel argue that the case was properly taken from the jury because the proofs did not show that the widow of Mr. Fulwider had not brought suit within the six months allowed her under the statute. As to this: Plaintiffs allege in their petition that she did not sue within that time. The suit is shown to have been brought within one day of the running of the one-year Statute of Limitations. The proof shows there was a widow and that plaintiffs were the only minor children of decedent at his death. The widow was on the stand as a witness. She was examined in chief by defendants’ counsel. She was not asked whether she had sued or not and the record is otherwise dark.

On such record, we observe: there is no plea in abatement in the answer based on the theory that another suit was pending for the death of Mr. Fulwider. Now, the statute creates the cause of action for wrongful death. It nominates the persons to sue and appoints the time. During the first six months the right to appropriate it rests in the widow, during the next six months in the minor children. That the defense of the pendency of another suit wherein the widow has appropriated the canse of action is matter of abatement to a subsequent suit by the children is beyond question. In this condition of things two views spring from the good sense of the thing. One is that, absent proof one way or the other (as here) there would be no presumption indulged that the widow had appropriated the cause of action. If she had not appropriated it, clearly plaintiffs may appropriate it if they sue within the time allowed them by statute, as they did in this case. In that view defendants’ point is wholly in the air and there is nothing to ground it on. Another view is that a presumption might arise that there was no case pending by the wido.w. To illustrate: If the widow had in fact sued to recover the statutory damages to herself, defendants (pinched by such shoe) would know that fact better than the minors or their curator. It might be an affirmative fact and, hence, the burden of proving it might rest naturally on those naturally and best knowing it. If, armed with that information, they fail to plead so advantageous a thing to them as the pendeney of the widow’s suit, and thus put their best foot foremost, would not a reasonable inference arise that no such suit was pending?

But there is still another view fatal to defendants’ contention. The negative averment that the widow had not sued may be conceded necessary to the statement of a perfect cause of action. [See authorities cited by defendants’ counsel.] But being negative and the facts relating to the existence of a prior suit being peculiarly within the power and knowledge of defendants, in such case the establishment of the negative allegation is not an essential element in plaintiffs’ case. For where the subject-matter of a negative averment lies peculiarly within the knowledge of the other party the averment is taken as true, unless disproved by that party. The general rule is well put by our Brother Graves in Swinhart v. Railroad, 207 Mo. 1. c. 434, as follows: “From them all,” said he (referring to the authorities in review) “it is deduced that generally the burden is upon the plaintiff to make out his case. That if in the statement of his case, negative averments are required, and the proof of such negative averments is not peculiarly within the knowledge and power of the defendant, then plaintiff must affirmatively establish such negative averments, but if, on the other hand, the proof of such negative averments lies peculiarly within the knowledge or power of the defendant, then such negative averments will be taken as true unless the defendant speaks and disproves them. Of course, if the knowledge and power to produce the evidence is possessed equally, the plaintiff must make the proof.”

We think the peremptory instruction, for the reasons set forth, could not be sustained on the ground of failure of proof of the negative averment

Plaintiffs’ counsel argue that no such point was raised or passed on below and hence it cannot arise here. The difficulty with that contention is that there is nothing in the record to show what points were made below or positions taken relating to giving the instruction doing the mischief. The record merely shows that defendants asked and received a mandatory instruction in the nature of a demurrer. Dealing with that condition of things, the settled rule of appellate practice is applicable to the effect that reasons assigned on the record, or existing and hot assigned, are immaterial on appeal. So long as an instruction is properly given for any reason, as a sound conclusion of law arising on the whole record, it is well enough.

It is further argued by plaintiffs ’ counsel that the question now up, at bottom, on analysis, goes to the mere capacity to sue. They contend such is a statutory ground of special demurrer, if the defect is disclosed on the face of the petition. If not so disclosed, they say it must he struck at by a special plea in the answer or it will be waived. They rely on the doctrine of eases like Baxter v. Railroad, 198 Mo. 1, and cases cited, and Gross v. Watts, 206 Mo. 373. Those cases hold that in the absence of a special plea in the answer in the nature of abatement, plaintiffs are not required to prove an averment of their petition relating to an appointment of a next friend, a guardian, a curator, or an administrator. Treating the pendency of another suit as subject-matter of abatement, it is my individual view that a general denial did not put plaintiffs on their proof of their averment that the widow failed to sue, and that the point is governed by the reasoning of the Baxter case, supra. But such holding is not necessary to a decision of the case, and the question is reserved. We prefer to let our opinion rest on the grounds heretofore stated.

III. Great stress is laid by plaintiffs’ counsel on the contention that it was bad to give the demurrer because the law raises a duty on the part of the master to warn inexperienced servants, placed in charge of intricate and dangerous machinery, of lurking danger, and instruct them how to safely manipulate such machinery. They say this record discloses that decedent was a man inexperienced in running the dangerous and intricate machines used in the manufacture of electricity. Not only so, but they say that the proof shows (and this may be conceded to them) that to stop the powerful Corliss engine used by plaintiffs “off center,” so that it might be started by turning steam into the cylinder without getting it off center by the úse of manual power, it was necessary to use a stout steel rod which was to be inserted in a contrivance called a “wrist plate” after another contrivance called an “eccentric rod” had been adjusted by the use of a block provided for that purpose, and after the steam had been turned off and the great flywheel of the engine had run down from eighty-five revolutions per minute to twenty or twenty-five revolutions. It seems that one way to stop the engine is to cut off the steam and let it stop itself, but that if the motion of the flywheel is allowed to take its own course in dying out, the engine may stop “on center” (i. e., on its dead points), and that by turning off the steam and after the motion is reduced, as said, if the eccentric rod is adjusted by the use of the block aforesaid, and the steel rod is inserted in the wrist plate, the annoyance of stopping on center is overcome by the manipulation of the engineer. They say that the record shows (and this, too, may be conceded to them) that in undertaking to stop the engine off center at five o’clock a. m. on January 29, 1904, by turning off the steam and inserting the steel rod in the wrist plate while the flywheel was revolving rapidly at sixty revolutions per minute and without the use of the block to adjust the eccentric rod, decedent, ignorant of the danger, received the full force of . the power of the engine through the steel rod that he had inserted in the wrist plate, and was hurled to his death, and (they argue) that plaintiffs should recover because of the inexperience of their father in -running such machinery and because defendants failed to instruct him in the use of the block in adjusting the eccentric rod and failed to warn him of the danger incident to stopping the engine when the flywheel was revolving rapidly.

Learned counsel make a showing of marked industry in citing authorities sustaining their abstract proposition of law. But the trouble in this regard is manifest as well as manifold. At the very door of their contention, they are met with the controlling proposition that they do not allege in their petition that their father was an inexperienced engineer. They do not allege there were hidden dangers -connected with the stopping of defendants’ engine off center, nor do they allege that their father’s duty was to stop it off center. They make no allegation to the effect that there was a peculiar way to stop this engine off center and peculiar and unknown dangers incident to that way. So, their petition is as dumb as an oyster on any issue relating to the. duty to instruct their father, or a breach of that duty. To the contrary, they rested their case on their pleading on an entirely different theory and they may not now, with insight sharpened by misfortune, mend their hold on appeal and convict the trial court of error on such mended hold. If plaintiffs desired to recover on the grounds of inexperience, or hidden danger, of the necessity of warning, or instructions and the negligent failure to warn and instruct, they should have raised those issues by appropriate averments in their petition. [Potter v. Knox Co. Lumber Co., 146 Ind. 114; 13 Ency. Pl. and Pr., pp. 900-901.]

Moreover,' the testimony does not show that decedent was an inexperienced engineer. To the contrary, it tends to show that he was experienced. It seems that he came from Nebraska shortly before to take charge of defendants ’ plant as its engineer. Presumably, from the common run of business affairs, he held himself out as capable of doing that very thing. From plaintiffs’ own witnesses it appears there was nothing singular or peculiar in the described plan in use in stopping defendants’ engine. So,-while there is no proof that decedent received instructions, or warning, there is none that he wanted any or held himself out as needing any. Nor is there any evidence that defendants knew of his ignorance. This is not the case of a servant, known by his master to be inexperienced, and who is assigned to a dangerous duty by his master — a duty known by the master to be dangerous but not known by the servant to be dangerous. Hence, cases of that character do not aid plaintiffs’ case.

The point is disallowed.

IV. Stress is laid by plaintiffs’ counsel upon the fact that in the engine room at the spot that decedent would best and naturally stand (in comparative safety), parallel with and not in line with the stroke of the engine, to insert the steel rod in the wrist plate, there was a large hole in the floor. We gather some repairs were under way. The hole was two. feet deep and quite long and wide and over it was laid a board or plank. One witness said the board was six inches broad and one inch thick, and 'another that it was twelve inches broad and two inches thick. On this score, we are asked to hold that this hole was negligently left in the floor, that the board was an unsafe place to.stand since it only partly covered the hole, that decedent, to avoid the danger of the hole he knew, to exist, planted himself to one side and in line with the stroke of the engine, and thus was killed. But no such complaint was made of the floor in the petition. It is there alleged that the floor was unsafe in being rough and uneven “with boards and timbers nailed across” and dangerously unsafe because “covered with grease,” whereby decedent was caused to stumble and slip, etc. None of the allegations in this petition in this regard were proved and plaintiffs may not be allowed on appeal to substitute a hole and an unsafe, narrow foot plank over it, in the evidence, for the rough, uneven and greasy floor of the petition. They specified the negligence complained of and, having identified it by earmark and notified defendants of the character of the case they were called on to meet, they may not argue their case on demurrer on review on a different state of facts. Otherwise, they would be allowed to sue on one cause of action and recover on another, contrary to the justice of the thing and in violation of all precedent.

Y. There was not an iota of testimony tending to show that decedent slipped or stumbled upon the rough, uneven and greasy boards, and thereby fell or was thrown against the exposed and unguarded belts and gearing of any machine, as alleged in the petition, and which charge is the gist of the cause of action. To the contrary, the proof shows as already indicated. Decedent shut off the steam to close down the engine, and, without adjusting the eccentric rod with a block, and without awaiting the slowing down of the flywheel, he voluntarily took a dangerous position in the line of the stroke of the engine and tried to manipulate the wrist plate with the steel rod in order to stop the engine off center. In doing so he received somewhere on his person, from the steel rod, the full force of the engine and was hurled towards the dynamo. Whether he hit it first or the belt is uncertain, but in one way or the other he was finally dragged by the belt into the flywheel pit. He was found there dead and the steel rod with him. Whether he was killed by striking the dynamo or belt and by being crushed by the wheels into the pit, or was killed outright by a blow from the steel rod and his lifeless body hurled into the machinery and dragged into the pit, nobody knows. Plaintiffs put on a witness who saw decedent at the time and stood close by him. He described the accident in detail, as we have in a nutshell. He testified that decedent neither spoke nor made a sound after he received the force of the blow from the rod. For some reason (not explained), there was no attempt to show the character of his wounds or what instrumentality caused his death, and it would be a mere idle guess to say whether he was mauled and broken in the machinery, or killed outright by a blow from the steel rod. On such facts, if we should allow to plaintiffs that defendants should have fenced their dangerous machinery, yet before liability is cast on defendants it is uniformly held that it must appear that the failure to fence was the proximate cause of the injury. [Huss v. Bakery Co., 210 Mo. 44.] Unless the specified negligence is a causing factor leading up to the injury, no action lies. On the proof furnished, we cannot so hold. To our minds the testimony tends' to show that this unfortunate man came to his death because he negligently placed himself in a perilous position and negligently manipulated his engine.

VI. It was alleged in the petition as a ground of negligence that no light was furnished. But it appears that a torch was used by decedent and there is no suggestion that the torch light was not sufficient. It must be held on the case made that the mere absence of any other light was not a causal incident in the matter.

Not only so, but when he turned off the steam in the engine he should have known the electric lights would give out. They did give out, for the dynamo and the “exciter” ceased, or were unable, to generate enough electricity to furnish light. For such emergency gas jets were provided by defendants. Defendants ’ plant manufactured gas and it was ready at hand. When the engine room was not lighted by electricity, means were at hand to light it by gas made at the plant. This was obvious to anyone. So, too, it was obvious that all necessary to do was to connect the gas and light it. There is no substance in the allegation relating to the absence of light. Under the proof, plainly the light had nothing to do with the disaster, and if it had aught to do with it decedent, having control of the machinery, the appliances and the whole plant, should have lit the gas.

There was point blank testimony furnished by plaintiffs that decedent took an unusual and dangerous position — one obviously dangerous — in stopping bis engine off center. By that act be caused bis death. Under such circumstances no manufacturing plant Could be carried on if its business was burdened with liability for the deaths of employees resulting from their own unhappy inadvertences.

Let the judgment be affirmed.

All concur except Woodson, J.} not sitting.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    LOUIS STRACK and ROSA STRACK v. MISSOURI and KANSAS TELEPHONE COMPANY and METROPOLITAN STREET RAILWAY COMPANY, Appellants.
    Division One,
    February 25, 1909.
    1. NEGLIGENCE: Stringing Wires: Regulation: By Contract. City authorities may require a telephone company to which it grants the privilege of erecting poles in a public street, to allow other concerns to string its public utility wires on the poles, and, that which a concern may be required to do it may do by contract.
    2. -: -•: Public Convenience: Discontinued. The stringing of wires in a public street, even for telephone purposes, is liable to cause some inconvenience or possible danger, and it is allowed only on the theory that it contributes to the public convenience; and so, when the public use of the wire has been discontinued there is no excuse for permitting it to remain, and to the extent that it is perceptibly an inconvenience or danger the maintaining of it is negligence.
    3. -: -: Consequences. The liability of a telephone company for negligence from a wire which a private company has strung along its poles and which is no longer used, is to be measured by the consequences that could reasonably have been anticipated to follow from the negligent act of permitting it to remain on the poles after its public use was discontinued.
    4. -: -: -: Anticipated Danger: Storm. A brewing company constructed a street railway, and on its trolley poles strung a telephone wire about the size of a knitting needle, parallel with the trolley wire and about fifteen feet from it, and that wire was connected with defendant telephone company. The railway passed into the hands of defendant railway company, and the brewery, having at the first made connections with the defendant telephone company, then ceased to use its small wire, and it was disconnected, but was allowed to remain on the poles. Held, that conceding it was negligence to permit the wire to so remain after its public use had been discontinued, no one could reasonably be expected to anticipate that a violent storm would come and break a piece out of it, throw the pieces across the live uninsulated trolley wire fifteen feet away, leaving one end hanging down so low that a little child passing next morning was touched by it and instantly killed. Until the storm came there was no negligence on the part of either company.
    5. -: Loose Telephone Wire: Notice. The small disused wire was not a part of the telephone system, but having been strung on the railway trolley poles was permitted to remain there after it had ceased to be used, and was disconnected with the telephones. A severe storm between five and six o’clock broke a piece out of the wire, threw the piece across a live trolley wire fifteen feet away, and one end hung down but not low enough to touch passing cars, and the other to the ground near the pole, and the next morning about six o’clock a five-year-old child passing in some way touched the end near the pole, and was killed. A young lady testified that before the* wire broke it did not sag, but that one end of the piece hung down by the pole, and the other blew over the trolley wire and hung down but not to the passing cars. She made no report to the company. Two men testified that they saw a wire that “just sagged down” and telephoned to the office or girl that a wire was “loose” or “down,” and the answer was that it would be attended to. Held, there was no actual notice. The men telephoned what they saw, and that was that the wire sagged, and that indicated no danger, and what the lady saw she did not report.
    6. -: -: -: To Telephone Girl. One witness did not remember what number or whom he called up, and the other said he called up the number he usually called when he wished to make complaints to the telephone company, but whom he reached by that call he did not know. Held, not sufficient to show notice to the company. Notice given to someone without knowing to whom it is given is no evidence that it reached the company for whom intended.
    7. -: -: — : -: To Railroad Company. By the freak of the storm a copper telephone wire of the size of a knitting needle was broken in two places and the piece thrown across a live trolley wire, and one end hung down but not so as to touch passing cars. Held, not to be notice of the situation to the railway company, whose cars passed from the time it happened late in the afternoon until six o’clock next morning, and there was nothing in the facts to require the company to discover it hy inspection, or to authorize the jury to determine that the company knew or hy the exercise of ordinary care might have known the danger, from the other end which hung down to the ground near the trolley pole, to a small child who, passing across the street, was killed by the heavily charged wire.
    Appeal from Jackson Circuit Court. — Hon. John G. Park, Judge.
    Reversed.

      Harkless, Grysler & Histed for appellant Missouri and Kansas Telephone Company.
    (1) The court erred in submitting to the jury the issue of actual knowledge by the Telephone Company of the existence of the break in the wire, which issue was wholly unsupported by proof. Wojtylak v. Coal Co., 188 Mo. 260; American Storage Co. v. Railroad,, 120 Mo. App. 410; Chambers v. Railroad, 111 Mo. App. 609; Ward v. Transfer & Storage Co., 119 Mo. App. 83. (2) It appearing in the evidence that the wire was disconnected and therefore carrying no current and that it formed no part of the system of the defendant telephone company, the rules of duty which obtain in the ease of a live wire forming a part of the telephone system do not apply. (3) It appearing that this wire was out of use and remote from contact with the trolley wire and was securely and safely attached to the pole until at least 5:30 o’clock p. m. on the day before, negligence cannot be ascribed to the telephone, company in failing to inspect and provide against the accidental breaking of said wire, by reason of the severe and vehement wind storm and the subsequent connection of the wire with the trolley wire. Fuchs v. St. Louis, 167 Mo. 620; Chandler v. Gas Co., 174 Mo. 329; Beasley v. Transfer Co., 148 Mo. 413. (4) The defendant Telephone Company had a reasonable time after the telephone wire came in contact with the trolley wire within which to remove the same. Lamport v. Laclede Gas & Light Co., 14 Mo. App. 393; Dodge v. Manufacturers Coal & Coke Co., 115 Mo. App. 501; Abbott v. Mining Co., 112 Mo. App>. 5501. (5) The court erred in holding that the jury might determine from the evidence that the wire had remained in a broken condition for such length of time that the defendant telephone company should have known of its condition.

      John H. Lucas, Ben T. Hardin and G. 8. Palmer for appellant Metropolitan Street Railway Company.
    The peremptory instruction in favor of this defendant should have been given. American Brewing Association v. Talbot, 141 Mo. 683; Fuchs v. St. Louis, 167 Mo. 645; Webb’s Pollock on Torts (Enlarged Am. Ed.), 45, 46; Bishop on Non Contract Law, sec. 437; Goodrich v. Railroad, 152 Mo. 222.

      P. E. Hatch and Reed, Yates, Mastín é Harvey for respondent.
    (1) The court committed no error in submitting to the jury the issue of actual knowledge by the Telephone Company of the existence of the break in the wire. Such issue was supported by substantial evidence. Where there is any substantial evidence, however slight, in support of an issue, it is the duty of the court to submit such issue to the jury. McManus v. Railroad, 118 Mo. App. 161; Knapp' v. Hanley, 108 Mo. App. 353; May v. Crawford, 150 Mo, 504; Baird v. Railroad, 146 Mo. 265; Holloway v. Tel. Co., 195 Mo. 265; Cannon v. Gas Co., 145 Mo. 513. (2) It appearing from the evidence that the wire in question, after the telephone which it connected was taken out and no further use remained for the wire, was left hanging on the poles of the Metropolitan Street Railway Company, above and in proximity to tbe trolley wires of the railway company, carrying a heavy current of electricity, and that the wire in question was uninsulated, the defendant Telephone Company would be governed by rules of duty equally as strict as those applying to a live telephone wire not hanging in such dangerous proximity. Tel. and Tel. Co. v. McTyer, 34 So. 1020, 137 Ala. 601; Thompson on Electricity, sec. 78; IT. S. Electric Co. v. Shelton (Tenn.), 14 S. W. 863; Gerandi v. Elect. Imp. Co., 107 Cal. 120; Geismann v. Mo. Edison Light Co., 173 Mo. 654; Gannon v. Laclede Co., 145 Mo. 502. (3) It appearing from the evidence that the wire in question was so hung that an ordinary storm might blow it over the trolley wires, that it was put up in 1900, that there was no earthly use for it on the poles after the telephone to which it led was no longer in use had been taken out; that this wire was seen to be down, somewhere between 4:30 and 5:30 p. m. of the afternoon by several persons; that it was on a much-traveled street; that it blew down and across the trolley wires in a storm that was not extraordinary or unusual; the Telephone Company can certainly be charged with negligence, under all the circumstances in the case. Gannon v. Gas Co., 145 Mo. 535; Dean v. Railroad, 199 Mo. 408; McMahon v. Express Co., 132 Mo. 641; Woods v..Railroad, 188 Mo. 229; Hovarka v. Railroad, 191 Mo. 441; Wencker v. Railroad, 169 Mo. 592. (4) There was no' error committed by the trial court in submitting to jury the question of whether or not the defendant Telephone Company could have, by the exercise of ordinary care, discovered the position and condition of said wire, a sufficient length of time before the injuries, under all the circumstances in the case, and removed said wire. What is a reasonable time depends upon the circumstances of each case. Kloekenbrink v. Railroad, 172 Mo. 678; Hiller v. Town of Canton, 112 Mo. App. 322; Goodman v. Kahoka, 100 Mo. App. 278; Young v. Webb City, 150 Mo. 333; McKissick v. St. Lonis, 154 Mo. 588; Beauvais v. St. Louis, 169 Mo. 500; Carrington v. St. Louis, 89 Mo. 208. (5) The court committed no error in refusing the request of the Telephone Company for a verdict in its favor; on the contrary it would have been a grievous error against plaintiffs if it had granted such a request. Where there is substantial evidence on an issue, that issue must be submitted to the jury. Knapp v. Hanley, 108 Mo. App. 353; McManus v. Railroad, 118 Mo. App. 161; May v. Crawford, 150 Mo. 504; Baird v. Railroad, 146 Mo. 265; Hollweg v. Tel. Co., 195 Mo. 149; Cleary v. Railroad, 108 Mo. App. 433. (6) The appellate court will not pass upon the weight of the evidence in an action at law where there is any substantial evidence to sustain the verdict. McManus v. Railroad, 102 Mo. App. 211; Blanton v. Dold, 109 Mo. 64; State v. Jacobs, 152 Mo. 565; Hovarka v. Railroad, 191 Mo. 452; Nephler v. Woodward, 200 Mo. 179. (7) The demurrer of the Metropolitan Street Railway Company'was properly overruled. Its liability does not depend on its ownership of the wire. Daltry v„ Media Elec. Light Co., 208 Pa. St. 403; Hebert v. Lake Charles Ice & L. Co., Ill La. Ann. 522. Nor was the storm sufficiently unusual to prevent the submission of 'the question of negligence to the jury. Hebert v. Lake Charles, etc., Co., supra.
   VALLIANT, J.

Plaintiffs are the father and mother of a five-year-old child that was killed on the 25th day of June, 1904, by coming in contact with a wire highly charged with electricity hanging down from a pole in a public street in Kansas City. This suit is brought under sections 2865 and 2866, Revised Statutes 18991, the petition alleging that the accident occurred because of the negligence of the two defendants.

As indicated by their names respectively, one of the defendants is a telephone company, the other a street railroad company, each maintaining wires in the public, streets charged with electricity. In the wires of the one the electric current is comparatively mild and harmless, being about fifty volts; in those of the other it is necessarily strong and more dangerous, being about five hundred volts.

The street railroad, or that portion of it to which our attention is drawn, is a double track, extending from Guinotte avenue on the south along Montgall avenue north to Nicholson avenue. This road was-was built in 1900 by the Heim Brothers who at that time owned a brewery on Guinotte avenue. The power' house of the railroad was located at the corner of Nicholson and Montgall avenues. The railroad was built, owned and operated by a corporation called the East Side Electric Railway Company, and the brewery by a corporation called the Perd Heim Brewery Company, but they were both really the property of the two Heim Brothers. The Heim Brothers then owning and operating both the brewery and the railroad, contracted with the Telephone Company for telephone connection between the brewery and the power house. This was accomplished by the Telephone Company stringing wires along its own poles from the brewery to Montgall avenue, and thence to the power house along the trolley poles of the railroad company parallel with the trolley wires and installing the telephone in the power house. At that time the brewery company had a private telephone exchange in the office of the brewery, and the installation of the telephones in the power house put it in connection with the brewery office.

The defendant, the Metropolitan Street Railway Company, bought this railroad of the Heim Brothers in July, 1901, and the telephone was continued in use until July, 1903, when it was disconnected and taken out, but the "wires were allowed to remain strung on the trolley poles until this accident occurred, July 25, 1904. These wires were not embraced in the Telephone Company’s system of wires, they were used only to connect the brewery office and the power house, and when the disconnection was made in July, 1903, no use of them was made for any purpose, they were just left where they were and no notice taken of them. They were not insulated, they were naked wires about the size of a knitting needle. These telephone wires were not strung above the trolley wires, in such position that if they should break they would naturally fall down on the trolley wires, but were strung parallel with and about fifteen feet from them.

Late in the afternoon of July 24, 1904, a severe wind storm passed over that part of the city and by its force one of these telephone wires was broken in two places and the broken piece was thrown across the trolley wires. One end of it, as it lay across the trolley wires, hung down, but not far enough to touch a person on the ground; the other end came down to or near the ground and the wire being naked and coming in contact with the trolley wires became hqavily charged with electricity. On the nest morning about sis o’clock the plaintiffs sent their five-year-old child on an errand which led him along Montgall avenue, and a few minutes later the child was found lying dead near the trolley pole, his body in contact with the wire.

So far the facts are undisputed. What dispute there may be relates to the question of notice to the defendants of the dangerous condition of the wire after the storm had broken it and blown it across the trolley wires. "We will consider the evidence on that subject hereinafter. The case was given to the jury on instructions that authorized a verdict against the Telephone Company if they should find that the telephone wire belonged to the Telephone Company and that the Telephone Company knew the condition of the wire at the time of the accident, or if the condition had continued long enough for the Telephone Company, by the exercise of ordinary care, to have discovered it a sufficient length of time before the accident to have removed it.

An instruction authorized a verdict against the railroad company if it knew the condition or by the exercise of ordinary care would have known it a sufficient length of time before the accident to remove the wire.

There was a verdict against both defendants for $5,000 and each defendant took an appeal.

I. There is nothing to indicate negligence on the part of either of the defendants in the matter of the stringing of the telephone wires on the poles of the railroad company or installing the telephonic connection between the brewery and the power house. City authorities often require a corporation to whom it grants the privilege of erecting poles in the street to allow other concerns to string its public utility vires on the poles, and that is not an unusual regulation, and in this particular that which a concern may be required to do it may do by agreement. Nevertheless the stringing of wires in a public street even for telephone purposes is liable to cause some inconvenience or possible danger and it is allowed only on the idea that it contributes to the public convenience. "When, however, the public use of the wire has been discontinued there is no excuse for allowing it to remain, and therefore to the extent that it is perceptibly an inconvenience or danger the maintaining of it is negligence. ' But the liability for such negligence is measured by the consequence that could reasonably be anticipated to follow from the negligent act. The law on this point is well stated in Am. Brewing Association v. Talbot, 141 Mo. 674, 1. c. 683-4. Conceding, therefore, that it was an act of negligence to leave these wires strung on the trolley poles after they had ceased to be used for telephone purposes, the question arises, what injurious consequence could be reasonably anticipated from the act? If before this accident one had gone to the chief of the street department of the city government and complained of these wires and demanded that they be removed, what could he have suggested as the probable or even possible danger he apprehended? Now, that the storm has come and broken a piece out of one of the wires and blown one end of the piece across the trolley wires, the other end falling near the ground heavily charged, by its accidental contact with the trolley wires, with electricity, it is clear that the situation was susceptible of being the means of a possible danger, but who could have anticipated that? If the law were so unreasonable as to hold people liable for the results of their acts however remote from natural sequence they might be, it would convert every one into an insurer against possible consequences of his acts however inoffensive the acts might appear at the time they were committed. We hold therefore that until the storm came and converted the situation into one of danger there was no negligence on the part of either of these defendants, and if there was negligence afterwards it was, as indicated in the instructions, that the defendants knew it or should have known it and failed to remove it after having reasonable opportunity to do so.

II. On the question of the ownership of the wire by the Telephone Company we think there was sufficient evidence to authorize the submission of it to the jury.

But the serious question is, did the Telephone Company have any notice of this condition in time to have removed the wire before the accident?

As already said, these wires were not a part of the Telephone Company’s system of wires, they were disconnected from electric touch and were not in service at all, therefore a break in one of them would not be discovered in the ordinary course of business. The storm occurred late in the afternoon between five and six o’clock after the ordinary working day was over, the accident occurred the next morning about six o’clock.

There is some discrepancy between the plaintiffs’ witnesses as to the exact time when the wire was broken, but neither of them professed to be very exact and the discrepancy in that particular is not very material. There is a discrepancy, however, on another point that is more important. A young lady was the only witness who was looking at the wire when it broke. She was standing on the porch of her house. She testified: “Well, late in the afternoon, about half past five or six, I noticed the wire break. ... I was on the front porch, and the wire broke on the post opposite our house, and one end of it hung down by the pole and the other end the wind blew over the trolley wire, and it hung down. There was room enough for the cars to pass under it.” She said the cars continued to run there all the evening. She was looking at the wires when this one broke, before it broke it was strung from pole to pole and was almost straight, there is always a little sagging between the poles; this wire was in the ordinary shape in that particular.

Another witness was standing at the entrance to Electric Park, he thought it was between four and five o’clock — nearer five; he saw the wire sagging between the poles so low that he judged from where he stood he could almost have touched it with his hand, the sagging was caused by the wind storm, the wire was not broken, he did not see either end, he only saw the sagging and he told a man in his employ to go to the telephone and report it to the Telephone Company, the man walked off in the direction of the telephone; about six o’clock as witness was going home he again noticed the wire, it was in the same condition, and when he got home he called up the telephone number which he understood was the office of the Telephone Company and told the person who answered the call “that their wire was loose across from the entrance of the park and ought to be fixed at once, they said they would attend to it.” The number the witness called up was the one he had frequently called when he had a complaint to make to the office. This witness did not know that the wire was disconnected and not in use.

The man who was ordered by the last witness to go to the telephone and report the condition to the company testified that he was with the last witness when he observed the wire and he saw it at the same time, one end hanging down and curled at the end, that when ordered to go 'to the telephone and report it he went, that he called up a number, he was not sure what, he said: “If I remember — I am not sure— I think I asked for 600, but I don’t remember if I did that or told it straight to the telephone girl. . . . They said, ‘All right.’ ... I told them the telephone wire was down. . . . Q. All you know is you telephoned to somebody and somebody said this thing to you? A. That is all.” After first stating that he saw. the wire, one end hanging down and curled at the end, he stated that the wire was not broken when he saw it, but “just sagged down; that is all I noticed of it.”

Those last two witnesses afford all the evidence there is in the case of notice to the Telephone Company that the wire was down. The testimony of the ■defendant Telephone Company is to the effect that they had no notice of it at all. But we will consider the case on the plaintiffs’ evidence alone on the refusal of the court to give an instruction asked by the Telephone Company at the close of the plaintiffs’ evidence to the effect that plaintiffs were not entitled to recover.

Of these two witnesses the first was the more intelligent and reliable. He did not know that it was a disconnected and disused wire; he saw no break in the wire, he only saw that it sagged. If that i is what he saw and if that is what he reported, then he did not see or report that which the young lady saw and which was the cause of the accident. Assuming that this witness and the young lady were both honest and intelligent, that they knew what they were talking about and were telling the truth, it is impossible to conclude that they both saw and both were attempting to describe the same thing. The young lady said she was looking at the wire, that it was straight from pole to pole, no sagging except the slight sag that is seen in all wires so strung, that she saw it break by the force of the wind, one end of the piece broken out was thrown by the wind over the trolley wires, while the other dropped down close to the pole with the end near the ground; she also said that the end of that part which was thrown over the trolley wires hung down but not low enough to touch the cars that' passed. The other witness said there was no break in the wire, there was only a sagging between the poles, and that is what he reported or attempted to report to the Telephone Company. The other man who said he gave the information straight to the telephone girl, first said that the wire was broken and one part hanging down curled at the end, but afterwards said that he noticed no break at all, it only sagged. These two men were standing together and what one saw the other saw. Neither saw the wire broken with one end across the trolley wires and the other hanging down, and therefore neither reported such fact to the company; the only thing they claim to have reported is what they saw, that is, that the wire was loose or sagging. Suppose the Telephone Company received that notice, what danger did it suggest? They knew what the witness did not know, that is, that it was a dead wire; if it fell by its own weight it would fall to the ground and hurt no one who might come in contact with it, it was fifteen feet west of the west trolley wire and therefore not at all likely in falling to come in contact with it. Can it with any degree' of reason be said that from such notice the Telephone Company could know or suspect the dangerous condition into which by a freak of the storm this wire had been placed? No one pretended to give them notice of s„uch a condition and there was nothing to cause them to apprehend or suspect such a condition.

We are also of the opinion that what was said by the two witnesses concerning their efforts to communicate with the Telephone Company was not sufficient to show that they communicated with the company at all. One of them did not remember what number or whom he called, the other said he called up the number which he usually called when he wished to make complaints to the Telephone Company, but whom he reached by that call'he did not know. It would be mere conjecture on the part of the jury if they should say on such evidence that the defendant had notice of the situation. We are not saying or implying that notice in such case might not be given by telephone, but notice given to some one without knowing to whom it is and no evidence that it reached the person or concern for whom the notice was intended, is no notice at all.

We hold that the instruction asked by the defendant Telephone Company to the effect that the plaintiffs were not entitled to recover should have been given.

III. As to the railroad company there was no attempt to prove that it had any notice of the situation. The only fact from which it is attempted to draw an inference of knowledge is that the cars continued to run there all the while. But there was no evidence on the part of the plaintiffs tending to show that the condition of the wires, as described hy the young lady, was such as to obstruct or hinder the running* of the cars or that it was of consequence sufficient to attract the attention of a motorman or conductor. We are not now talking about a sagging wire not broken, because if there was a sagging wire it has done no harm, no one is here complaining of an injury caused by a wire that sagged, but the complaint is of a broken wire thrown across the trolley wires with both its ends in sight and hanging down. The wire, according to the young lady, did not hang down low enough to touch a car. The cars continued to run there all the evening and owl cars at longer intervals during the night; yet nothing* in the way of a hinderance or obstruction was observed. There was no suggestion that anything was wrong with the trolley wires, therefore there was nothing to call the attention of the railroad people to the situation. On cross-examination of one of defendants’ witnesses the plaintiffs brought out the fact that an obstruction on the trolley wire was liable to throw the trolley off or cause “an arc” or sparks to flash, but no one saw any such manifestation. If we consider what kind of a wire this was, a small copper wire the size of a knitting needle, thrown over the trolley wire, we ought not to require any expert testimony to know that its effect on the trolley as the car passed under it would be almost imperceptible, possibly a little flash and nothing more. No witness testified that a small wire like that thrown over the trolley wire would have caused such an explosion or interruption of the passing of the car when the trolley passed under it as to have attracted attention and if any witness had so testified no one would have believed him. Men have a right to use their common sense in trying law suits as well as in their everyday business.

This breaking of the wire by the wind occurred, according to plaintiffs’ witnesses, late in the afternoon, half past five or six o’clock, the working day was over, there was nothing in the way of an interruption of the railroad traffic to call the railroad people’s attention to the situation, how then can it be said that the railroad company was at fault in not sending inspectors over their line during the night? Conceding that it is their duty to use ordinary care to inspect their lines, yet can we say that the circumstances of this case are such as to raise a question of fact as to whether or not the railroad company used ordinary cafe to inspect its lines? If so then such a question may be submitted to the jury in any case. We. see nothing in the evidence to justify the submission of the question of whether or not the railroad company knew or by the exercise of ordinary care would have known the dangerous condition of these wires. Therefore the instruction asked by the railroad company in the nature of a demurrer to the evidence ought to have been given.

There is another question discussed in the briefs relating to the instruction given at the request of the plaintiffs on the measure of damages, but in view of what we have above said on the merits of the case there is no occasion to consider that question. The judgment is reversed.

All concur.