author: FOX, J.

text:
    CATHERINE ECKHARD v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,
    October 25, 1905.
    1. NEGLIGENCE: Right to Recover. Where negligence is shown on the part of a street railway in the operation of its cars, and injury results therefrom to a pedestrian, the plaintiff is entitled to recover damages unless the injured party was guilty of contributory negligence.
    2. -: Contributory Negligence: Burden. Tfye burden is upon the defendant to establish such contributory negligence as will defeat recovery.
    3. -: -: When Matter for Jury. When the facts bearing on the issue of contributory negligence are disputed, or when they are undisputed but admit of different constructions and inferences, the issue must be left to the jury.
    4. -: Presumption of Ordinary Care: Looking and Listening. The law indulges the presumption that a pedestrian in approaching a street-car crossing was in the exercise of ordinary care and prudence.
    5. -: -: -: Demurrer to Plaintiff’s Case. The petition charged that the car was running in excess of ten miles an hour and that the, motorman failed to keep a vigilant watch for persons on the track; and plaintiff offered evidence tending to show that the car was running twenty or thirty miles an hour on a down grade, and two ordinances, one fixing the maximum speed of street cars at ten miles an hour, and the other making it the duty of motormen to keep a vigilant watch for pedestrians on the track or approaching near it and in ease of danger to stop the car in the shortest time and space possible; and, also, evidence showing that the deceased stopped at the west side of the crossing until a north-bound car passed, and when it had done so he tried to cross, but was struck by the southbound car just as he was leaving the track, and killed. Held, that these facts tend to prove that the car was being carelessly and negligently operated in violation of an express ordinance, and, when taken in connection with the presumption which the law indulges that deceased was exercising ordinary care and prudence in approaching the car, justified the court in refusing defendant’s demurrer to the evidence at the close of plaintiff’s case; and, that said demurrer could not be sustained on the ground that there was no evidence showing that plaintiff did not look and listen for the approaching car. •
    6.' -: -: Demurrer at Close of Whole Case. A case having been made out by plaintiff entitling her to go to the jury at the close of her evidence, the court should not sustain a demurrer to the evidence at the close of the whole case on the ground that deceased did not look and listen for the ear as he approached the track or was not otherwise in the exercise of ordinary care, unless all the facts developed at the trial, upon a fair and reasonable consideration of them, point irresistibly to the one conclusion that he was guilty of contributory negligence in approaching the track.
    7. -: Speed of Car; Presumption: Contributory Negligence. A pedestrian about to cross a street railway track has the right to presume that an approaching car is not being run in excess of the maximum rate permitted by the city ordinance. And it there was sufficient time for him to have crossed the track in safety had the car been run at the prescribed rate, he was not guilty of contributory negligence if he acted upon that presumption and was injured before he got across.
    8. -: Presumption that Pedestrian Will Stop. If the conduct and actions of a party approaching a street railway track would lead a mortorman of ordinary prudence to conclude that such party is going upon the track in front of the car, the right of the motorman to act upon the presumption that the person will stop before going on the track, ceases.
    9. INSTRUCTION: Emphasizing Parts of Testimony. Instructions which undertake to make prominent certain parts of the testimony and directing the jury to specially consider them in reaching their conclusions in relation to- the ultimate facts to be found, are not favored.
    Appeal from St. Louis City Circuit Court. — Hon. D. D. Fisherf Judge.
    AFFIRMED.

      Geo. W. Easley with Boyle, Priest é Lehmcmn for appellant.
    The court below erred in not giving the instruction asked by defendant at the close of the plaintiff’s evidence in chief, directing a verdict for the defendant. It sufficiently appeared from the evidence offered on behalf of plaintiff that the only negligence shown against the defendant was excessive speed and the failure to ring the bell. It was and is an indisputable fact that if the plaintiff’s husband had either looked or listened, he could have seen and heard the approaching car in time to have avoided the injury. So that there was a clear case of contributory negligence shown on the part of the plaintiff’s husband, without which the accident conld not have happened. Where such is the case, and the facts are undisputed as to the conduct of the respective parties, the negligence of the defendant as to the excessive speed and failure to sound the bell may be conceded, and the conduct of the plaintiff’s husband must bar any recovery. The law seems now well established in this State that where one, by the exercise of care, can avoid the negligence of another, failure to exercise care prevents a recovery. Ries v. Railroad, 179 Mo. 7; Moore v. Railroad, 176 Mo. 528; Zumault v. Railroad, 175 Mo. 288; Warner v. Railroad, 178 Mo. 133.

      Bassieur & Buder and John W. Benstein for respondent.
    (1) The court properly refused the instruction asked by defendant at the close of plaintiff’s case. In the absence of direct evidence to the contrary, or rebutting circumstances, the law presumes that the deceased exercised ordinary care at the time of the accident. The question of contributory negligence is one for the jury. Petty v. Railroad, 88 Mo. 320; Crumpley v. Railroad, Ill Mo. 158; Jennings v. Railroad, 112 Mo. 268; Schlereth v. Railroad, 115 Mo. 87,- Hutchinson v. Railroad, 161 Mo. 246; Weller v. Railroad, 164 Mo. 198; Riska v. Railroad, 180 Mo. 168; Reed v. Railroad, 80 S. W. 919. (2) “In an action against a street railway for negligent death at a crossing, where the evidence conclusively showed defendant’s negligence in running its car at an unlawful rate of speed, the plaintiff was entitled to recover, unless it was shown by a preponderance of the evidence that deceased was guilty of contributory negligence in failing to look and listen for the car before entering on defendant’s tracks.” Petty v. Railroad, 88 Mo. 320; Crumpley v. Railroad, 111 Mo. 158; Schlereth v. Railroad, 115 Mo. 87; Hutchinson v. Railroad, 161 Mo. 246; Weller v. Railroad, 164 Mo. 180; Riska v. Railroad, 180 Mo. 168; Reed v. Railroad, 80 S. W. 919.
   FOX, J.

This is an action by plaintiff, the widow of George P. Eckhard, deceased, to recover from defendant five thousand dollars damages for the negligent killing of her husband, the said George F. Eckhard, at the intersection of South Broadway and Fillmore streets in the city of St. Louis, on the afternoon of December 15, 1901.

The petition alleges the incorporation of defendant ; its operation of a line of street railway along South •Broadway; that South Broadway and Fillmore streets were open public streets in the city of St. Louis; that George F. Eckhard was the lawful husband of plaintiff; that on the 15th day of December, 1901, and within sis. mpnths of the filing of the petition, George F. Eckhard, the husband of plaintiff, was crossing South Broadway at the intersection of Fillmore street, when defendant’s servants in charge of its south-bound car, negligently and carelessly and without using any care to control the movements and speed of said car or slow up or stop said car, caused and suffered said car to run upon said crossing and said street at a violent, excessive and negligent speed, knocking down, running upon and dragging the said George F. Eckhard and causing the death of said George F. Eckhard; that an ordinance then in force required defendant’s motorman and conductors to keep a vigilant watch for persons on foot, either upon defendant’s tracks or moving towards them, and upon the first appearance of danger to stop the car within the shortest time and space possible; that at the time of the killing of said Eckhard these duties on the part of defendant’s servants were neglected; that there was also in force at the time of the accident an ordinance which provided that a ear should not- he run at a greater speed than ten miles per hour, at the place of the accident, and that the car was run at a greater rate of speed than specified in said ordinance, to-wit, twenty miles per hour, and that the violation of said ordinance directly contributed to cause the death of said Eckhard.

The answer was a general denial and also contained a plea of contributory negligence, to-wit: ‘ ‘ That the death of plaintiff’s husband was occasioned by his own carelessness and negligence in passing upon defendant’s track in close proximity to defendant’s moving car, without looking or listening for the approach of said car. ’ ’ To this plea there was interposed a general denial.

The testimony on the part of plaintiff tends to show the following state of facts:

That plaintiff is the widow of George F. Eckhard, deceased. On Sunday, December 15, 1901, deceased, who was a night watchman at the Missouri furnace, left his home at the corner of Michigan avemie and Bates street at about 5:30 o’clock in the afternoon; that he was on his way to the place of his employment and after reaching Broadway proceeded south on the west side until he reached Fillmore street; that while he was crossing Fillmore street on the north crossing he was killed by being struck by the east front end of defendant’s south-bound car just as he was stepping off of the track; that Broadway is a north-and-south street, and Fillmore is an east-and-west street, running to the river, and crossing Broadway at about 6000 south; that the St. Louis Transit Company operates its lines along Broadway at . that point and has a double track, the track for the north-bound cars being on the east side, and the track for south-bound cars being on the west side of Broadway; that there is only one crossing from the west to the east side of Broadway at that point, and that the crossing is on the north side of Fillmore street; that the east-and-west streets north of Fillmore street, in their respective order, beginning with the one nearest Fillmore street, are Ellwood street, Dover street, Caldwell street, Bates street and Fassen street; that there is a grade immediately north of Fillmore street and that from Fassen street to Fillmore street there is a fall of about sixty-seven feet, and that in the first block north of Fillmore street'there is a fall of eleven feet, and in the second block there is a fall of fourteen feet; that the fall- for the two blocks immediately north of Fillmore street is twenty-five feet; that from Fillmore street and Broadway a person could see north about a block and a half or two blocks and that Broadway is straight from that distance and the bend occurs after you pass that distance north of Fillmore street. The speed of the car was estimated by the various witnesses at from ten to twenty-five miles per hour.

The evidence for plaintiff tended to show that deceased stopped on the west side of the north crossing of Fillmore street; that there was a north-bound car on the east track and that after the north-bound car had passed the Fillmore street crossing deceased was still seen at the corner on the west side of the crossing; that the bell of the north-bound car was ringing and that the car Lad-pased over the north crossing before deceased undertook to cross, and that the bell, on the southbound car which struck the deceased, was not ringing as it ap - proached that crossing.

The facts as developed on the part of the defendant were substantially as follows:

Eeuben Staten, a witness for the defendant, testified that he was standing on the corner of Broadway and Fillmore street on the evening of this accident. He says that he was standing between thirty and thirty-five feet south — on the south side of the corner — from the corner, between thirty and thirty-five feet, and while he was there he saw a man undertake to go across the street and a car ran over him; at the time he saw him he did not know who the man was, but ascertained who he was directly afterwards. This witness says in answer to a question, that the car was run on the plaintiff ’s husband when he stepped in the track; that he came from the west side of the street; that a mail car was coming north and there was a passenger car going south, and it looked to him as if Eckhard thought he could cross. The witness then states that Eckhard stepped out in the track and the car ran over him. The witness does not undertake to fix the length of time after the deceased stepped onto the track before the car’ struck him; in answer tó a question, he says it was done “just in a jiffy — just stepped out in the track.” He says the car was lighted and that he, the. witness, was standing on the south side of Fillmore, between thirty and thirty-five feet south of the curbstone, and on the west side of the car track. It is also stated by this witness that just before plaintiff’s husband went onto the track he was looking right straight in front of him; didn’t turn his head; “ he looked neither north or south; he looked to me as though he was looking at the mail car.” The mail car was in the direction in which he' was looking. This witness further states in answer to questions, that before deceased stepped into the track the mail car had passed north; that statement is then qualified, by his saying that the two cars came almost exactly on the crossing together, then the further statement is made in answer to a question, that when the mail car passed north Mr. Eckhard proceeded to cross the track and the car struck him instantly. On cross-examination of this witness he is unable to fix the distance that the mail car was beyond the crossing before Eckhard undertook to cross the track; he says he was looking at the man when the car struck Mm, “it was done so quick a man couldn’t just tell how far it was, but it seemed as though he aimed to get by before the other car came.” This witness also fails to fix the distance from the crossing that the south-bound car, which struck Eckhard was, when Eckhard undertook to cross the track, but simply says, “it was but a little ways from the crossing.” The body of the deceased was found on the east side of the south-bound track.

The testimony of Edward Martin, the motorman, as to how this accident occurred, was as follows:

“Q. Now, tell the jury in your own way just how this accident occurred, at or near Broadway and Fillmore street, on the night of December 15th, last? A. Well, on the night of December 15th, Sunday evening, when I went south about 5:45 and got close to Fillmore street, I saw a man leave the sidewalk and start towards the track.
“Q. What did you do? A. I commenced stopping the car and sounding my gong.
“Q. Did you ring the bell? A. Yes, sir; ringing the bell when I was coming up the street.
“Q. Well, what did this man do? A. He just kept walking right towards the car track. When I got up within — the car got within about thirty feet of him, I couldn’t see that he saw the car, and I commenced to ‘holler.’ Then I reversed the car when I got about fifteen feet of Mm, and he never made any signs that I saw that he saw the car until the car got within about four feet of him, and he throwed his arms up and the car struck him.
“ Q. What do you mean by reversing the car? A. Well, pulling your reverse lever back.
“Q. Is that a more powerful agency than the brake? A. Yes, sir.
“Q. Is that the most powerful agency you have at your command as motorman to stop the car? A. Well, to make a sudden stop it is.
“Q. You applied your reverse power, did you? A. Yes, sir.
“Q. Did the car slide or stop ? A. Well, the track was bad — snowy and icy on the track, and the car slid for a ways.
“Q. You reversed the car before you struck him? A. Yes, sir.
“Q. You rang the bell, did you, when you saw him approacMng the track? A. I was ringing the bell before I saw him approaching the track.
“Q. Did you ring it after you saw him walking towards the track? A. Yes, sir. •
“Q. Did he look in the direction of your car before he went upon the track? A. No, sir; he never looked towards my car that I could see.
“ Q. Was it possible for you to stop your car after you saw he was going upon the track? A. No, sir; it wasn’t.
“Q. Before you struck Mm? A. No, sir; it wasn’t.
“Q. Was it a down grade there? A. Yes, sir.
“Q. How fast were you running at the time of the accident and just prior to it? A. Well, to the best of my knowledge it would be ten miles an hour.
“Q. And you were, about the time you came to Fillmore street, going south? A. Yes, sir.
“Q. "Where was Eckhard with reference to the crossing when the car struck him? A. He was on the south side.
“Q. What position with reference to the two rails of the south-bound track; what position was he in with reference to the two rails? A. Well, he was walking right straight across them; as near straight across as I could see.
“Q. Was your car lighted? A. Yes, sir.”

Upon cross-examination this witness was unable to state within what number of feet this car could have been stopped running at ten miles an hour in the condition of the track on that night, except to say that he guessed it could have been stopped within about fifty feet.

On further cross-examination he testified as follows :

“Q. It was the east front end of your car that struck him, wasn’t it? A. Yes, sir; it was the left east front.
“Q. You testified which of the corners it was; it was the left front end of your car? A. Yes, sir.
“Q. It was the east front end as you were going south? A. Yes, sir.
“Q. And he was on the easternmost rail of the south-hound track as you struck him ? A. Yes, sir; one more step and he would have been across.
“Q. Now tell us, if you please, what your testimony was before the coroner’s jury, so far as the number of feet ahead of your car Eckhard was at the time you first saw him?
“Q. You testified that you were going south at Broadway and Fillmore street and saw a man thirty feet ahead and rang and shouted, is that correct? A. Yes, sir.
“Q. You didn’t see him fifty feet ahead, you saw him about thirty feet ahead? A. I wouldn’t say now; whatever I remembered then — whatever I said then was right.
“Q. That was nearer right than it is to-day? A. No, sir; anything I say to-day is right, so far as I know.
“Q. Did you see him at any time before he got on the track? A. Yes, sir..
“Q. Did you see him coming towards the track? A. Yes, sir.
“ Q. How far away from him were you at the time you saw him coming towards the track? A. That I couldn’t say to-day, just how far away from him I was, but not very far.
“Q. You were thirty feet away from him after you saw him on the track? A. No, sir; I wasn’t.
“Q. You said before, the car was going south on Broadway and Fillmore and you saw a mam thirty feet ahead and rang and shouted. "Was that after he was on the track?
“Objected to unless the question is put to the witness as it was at the coroner’s office.
“Q. (Reading from testimony taken at the coroner’s office): ‘Tell the jury what you know about the death of Mr. Eckhard,’ and your answer was, ‘when I went south on Broadway and Fillmore street I saw a man crosing the street about thirty feet in front of me and sounded my gong and shouted, but could not make him hear me and struck him. ’ Is that correct? A. When I first saw him he was walking towards the track, but I was not thirty feet away from him when he got on the track, I want you to understand that, I wasn’t thirty feet away from him.
“Q. Well, how far was Eckhard from the curb when you first saw him? A. From where?
“Q. From the curb at the sidewalk? Well, I couldn’t say that exactly, how far he was; he was between the sidewalk and the track.
“Q. And yon are positive he was on the south crossing, are you? A. Yes, sir'; I am.
“Q. Now, don’t you know, as a matter of fact, that there is no crossing on Broadway from the west side to the east side on the south side of Fillmore street? A. I know that Fillmore does not cross Broadway, hut it comes up to Broadway.
“Q. What is that? Do you say Fillmore doesn’t run beyond Broadway? A. No, sir; it doesn’t.
“Q. It runs up to Broadway? A. Well, now look here—
‘ ‘ Q. Let us get the fact? A. Yes, sir; that is what I am trying to tell you. Now, I am not much acquainted with it, only know when I got there with the car, riding on a car; when I got to Fillmore street, I struck the man with the car at the south crossing of it, that is what I know about Fillmore.
“Q. Does Fillmore run through to the river at that point or not? A. I can’t say now, it has been quite awhile ago.
“Q. Isn’t it a fact, that there is no crossing on the south side of Fillmore street from Broadway on the west side to the east side? A. Now, a year ago it was, that happened, and I could have told you; I wouldn’t say it now; it is quite awhile, and I ain’t been down on Broadway since, and I don’t remember.
“Q. You are positive, however, that the man was —that you first saw him when you were some thirty feet of him, are you? A. No, sir; I wouldn’t say thirty feet, but something like that.”

Martin Dougherty, a witness for the plaintiff, testified that Mr. Martin, the motorman, told him that Mr. Eckhard was not very far from him when he first saw him; about ten or twelve feet; he was stepping right on the track and as soon as he saw him he tried to reverse his car and the car struck him.

Mrs. Price and her daughter ,who were introduced by defendant, corroborated tbe motorman as to tbe ringing of the bell from tbe time be left Ellwood street on down tbe bill until tbe accident happened.

Defendant then offered in evidence certain parts of tbe testimony of Koehler, Lally and Berry, taken at tbe coroner’s inquest, for tbe purpose of contradicting those witnesses who testified for tbe plaintiff upon tbe trial of this cause.

Defendant, at tbe close of tbe testimony on tbe part of tbe plaintiff, requested an instruction in tbe nature of a demurrer to tbe evidence, directing the jury to find tbe issues for tbe defendant, which was by tbe court overruled. This request was again renewed at tbe close of all tbe testimony in tbe cause and was again by tbe court denied.

Tbe instructions given by tbe court were as follows :

“1. If tbe jury find and believe from tbe evidence, that Fillmore street and Broadway were, on December 15,1901, open public streets within tbe city of St. Louis, and if tbe jury further find and believe from tbe evidence that at said time tbe defendant operated an electric railway along and upon' Broadway, was using tbe tracks and owned and operated tbe railway car mentioned in tbe evidence, for tbe purpose of transporting persons for hire from one point to another in said city, and that on said day George F. Eckhard was tbe bus-band of plaintiff, that plaintiff’s said husband was at said date crossing from tbe west to tbe east side of Broadway at its intersection with Fillmore street, and that while be was so crossing, defendant’s south-bound car ran upon said crossing and street at a violent, excessive and negligent speed, knocking down, running upon and dragging tbe said George F. Eckhard and injuring him to such an extent as to cause bis death; and if tbe jury further find and believe from the evidence, that defendant’s agents, servants and employees in charge of and operating said car either saw, or by keeping a vigilant watch for persons moving toward the track npon which said car was being propelled, conld have seen said Eckhard moving toward and.across said track,'and in danger of injury, and that after seeing said Eckhard moving towards and upon said track, or, after they could have seen, by keeping a vigilant watch as aforementioned, defendant’s agents, servants and employees, or either of them, could, by stopping said car within the shortest time and space possible under the circumstances, have, averted said injury, and neglected so to do; and if the jury further find and believe, from the evidence, that said George F. Eckhard exercised ordinary care and prudence in walking towards and across said track, then your verdict should be for the plaintiff.
“2. The court instructs the jury that if you find and believe, from the evidence, that Fillmore street and Broadway were, on December 15, 1901, open public streets in the city of St. Louis and that at said time the defendant owned and operated an electric railway running north and south along Broadway, for the purpose of transporting persons for hire from one point to another in said city, and was using the tracks and,owned and operated the railway car mentioned in the evidence, and that on said day George F. Eckhard was the husband of plaintiff; and if you further find, from the evidence, that plaintiff’s husband was at said date crossing Broadway at the intersection of Fillmore street, and that while he was so crosing, he was knocked down, run upon and dragged by the car mentioned in the evidence, and injured to such an extent as to cause his death; and if you further find and believe, from the evidence, that said George F. Eckhard exercised ordinary care and prudence in stopping, looking and listening for the approach of said car, before walking on and crossing said track, and that defendant’s agents, servants and employees in charge of and operating said car, either saw, or by the exercise of ordinary care on their part, could haye seen said Eckhard moving towards and across said tracks, and that after seeing said Eckhard, or after by the exercise of ordinary care they might have seen said Eckhard, they could have stopped said car in time to have avoided said injury, and neglected so to do, then your verdict should be for plaintiff.
“3. The court instructs the jury that by ordinary care is meant such care as an ordinarily prudent man would use under like circumstances. And the court further instructs you that the law presumes that Eckhard was using ordinary care at the time of the accident, .and the burden of proving the want of such care rests upon defendant.
“4. If the jury find, from the evidence, the plaintiff is entitled to recover, you will assess her damages^ in the sum of five thousand dollars.”.

To the giving of each of which instructions defendant at the time excepted.

Defendant’s Instructions Given:

“1. If you find from the evidence that the deceased was walking along and upon Broadway street for the purpose of crossing defendant’s track in said street, then it was the duty of the deceased while approaching defendant’s street-car track, to look in the direction from which the car was approaching, and also to listen for the purpose of ascertaining whether a car was approaching or not, and if he found from such means that a'car was approaching so near as that there was danger of a collision, then it was deceased’s duty to stop before going upon the track, and to let the car pass without interference or delay. If the jury find from the evidence that the deceased failed to look or listen, or that if he did look and listen that he failed to heed what he saw or heard, and that the situation was such that by looking or listening he might have seen or heard the approach of the car in time to have avoided the accident, and that he failed to do so, and that such failure directly contributed to causing deceased’s injury and death, then the plaintiff cannot recover, and your verdict must be for the defendant.'
“2. While the burden of proof is upon the defendant to establish its plea of contributory negligence upon the part of the deceased, yet this does not relieve the plaintiff from establishing by a preponderance or the greater weight of the evidence that the sole cause of deceased’s injury was the negligence of the defendant’s agent, as defined in the other instructions, and notwithstanding defendant’s plea of contributory negligence, that the burden of proof rests upon the plaintiff throughout the trial of the case, and if the jury find from the evidence that the death of the deceased was caused by an accident for which neither party is responsible, or from the combined and concurring negligence of the deceased and the motorman in the manner set out in the instructions, then the plaintiff is not entitled to recover and your verdict must be for the defendant.
“3. The jury are the sole judges of the credibility of the witnesses and of the weight to be given to their testimony, and in determining the weight and credibility to be given to the testimony of any witness, the jury may take into consideration his interest in the proceedings, his attitude towards either the plaintiff or the defendant, and his bias or prejudice, if any. All of which are to be ascertained from the conduct of the witness upon the stand, the testimony by such witness taken into consideration with all the other testimony in the case and the physical fact shown to exist. And if the jury believe that any witness has willfully sworn falsely to any material fact, they may disregard all or any part of such witness’s testimony.
“4. Even if the jury do find from the evidence that the motorman in charge of said car saw the plaintiff’s husband approaching the track in front of the car, the motorman had the right to assume and act upon the presumption that the plaintiff’s husband would stop before going upon the track, and was under no duty to attempt to stop the car until he became aware that the plaintiff’s husband was going to get on the track in front of the car, or until his conduct and actions would have led a person of ordinary prudence to conclude that he was going to do so.”

The following instruction was requested by the defendant, which was by the court refused:

“In determining whether or not the defendant’s motorman in charge of the car could have stopped the car after seeing the deceased in the act of going upon the track, the jury will- take into consideration the means at his command, the condition of the weather, and the condition of the track, and if the jury believe from the evidence that when defendant’s motorman saw the deceased- about to go upon the track, the motorman rang his hell, reversed his motive power, and that notwithstanding these facts he was unable to stop the car owing to the condition of the track, then the defendant is not liable and the plaintiff cannot recover. ’ ’

This cause was submitted to the jury upon the evidence and instructions of the court and they returned a verdict for the plaintiff in the sum of $5000. Judgment was accordingly entered, and from this judgment defendant in due time and form prosecuted this appeal, and the record is now before us for consideration.

OPINION.

The first and most vital proposition with which we are confronted in this cause is the contention of defendant, so earnestly and ably presented by counsel, that the demurrer to the evidence, interposed either at the close of plaintiff’s case or at the'close of the entire case, should have been sustained and the jury directed to* return a verdict for the defendant. This contention is based upon the decided views expressed by counsel, that deceased failed to look or listen in approaching the crossing of the street railway; hence, was guilty of contributory negligence and is not entitled to recover, and it was the duty of the court, upon the facts disclosed upon the trial, to so declare. In actions of this character, where negligence is shown on the part of the railway company in the operation of its cars and injury results therefrom, the plaintiff in such actions is entitled to recover unless it is- shown by satisfactory evidence that the party injured was guilty of contributory negligence. In other words, where the injury is reasonably and satisfactorily accounted for, by reason of negligence on the part of the defendant, then the burden rests upon the defendant to establish such contributory negligence as would defeat a recovery. It is apparent that the position of learned counsel for appellant, upon this proposition, must find its support upon the theory that the facts developed at the trial established contributory negligence on the part of deceased. This leads us to inquire when and under what state of facts the court is warranted in declaring, as a matter of law, that the party injured was guilty of contributory negligence.

The rules of law applicable to this inquiry are well settled in this State. The issue of contributory negligence on the part of the plaintiff’s deceased husband is sharply presented in the answer of defendant, and the replication of plaintiff. It is averred in the answer, “that the death of plaintiff’s husband was occasioned by his own carelessness and negligence in passing upon defendant’s track in close proximity to defendant’s moving car, without looking or listening for the approach of said car, ’ ’ and this plea is denied by the plaintiff. If the facts bearing upon this issue developed at the trial are undisputed and reasonable men •cannot differ in their inference from such facts, then 'it was clearly the duty of the court to decide that issue as a matter of law. But on the other hand, as was said in Berry v. Railroad, 124 Mo. l. c. 244, “when the facts bearing on the issue are disputed, or when they are un~disputed, but admit of different constructions and inferences, it must be left to the jury.” [Marshall v. Schricker, 63 Mo. 308; Mauerman v. Siemerts, 71 Mo. 101; Charles v. Patch, 87 Mo. 450; Tabler v. Railroad, 93 Mo. 79; Fletcher v. Railroad, 64 Mo. 484; Huhn v Railroad, 92 Mo. 440; Railroad v. Ives, 144 U. S. 408; Roddy v. Railroad, 104 Mo. 234; Bell v. Railroad, 72 Mo. 50; Nagel v. Railroad, 75 Mo. 653; Petty v. Railroad; 88 Mo. 306; Ostertag v. Railroad, 64 Mo. 421.]

If the facts as to the contributory negligence complained of in this cause are undisputed and are not susceptible of different constructions and inferences, then clearly it was the duty of the court to direct a verdict for the defendant. But, on the other hand, as was ruled in Buesching v. St. Louis Gaslight Co., 73 Mo; 219; when the facts are disputed, or the credibility of witnesses is drawn in question, or a material fact is left in doubt, or there are inferences to be drawn from facts proved, the case, under proper instructions, should be submitted to the jury. [Kelly v. Railroad, 70 Mo. 609.]

This leads us to the consideration of the facts developed at the trial upon which this cause was submitted to the jury. Upon the trial the ordinances alleged in the petition were introduced in evidence, one requiring defendant’s motorman and conductors to keep' a vigilant Watch for persons on foot, either upon defendant’s tracks or moving towards them, and upon the first appearance of danger, to stop the car within the shortest time and space possible; the.other, providing that the cars operated upon the railway should not be run at a greater speed than ten miles per hour at the place of the accident. As indicated in the statement of facts of this case, plaintiff’s deceased hnshand, George F. Eckhard, was a night watchman at some business place, and at the time of this accident, about 5:40 in the afternoon, he was proceeding to his work. He went south on Broadway until he reached Fillmore street. The darkness of night was fast approaching, in fact at the time of the accident it was just about dark. Broadway, it seems from the testimony, is a north-and-south street, and Fillmore is an east-and-west street, crossing Broadway at the point of the accident. On Broadway the defendant operated its line of cars over a double track; the track for the north-bound cars being on the east side, and the track for the south-bound cars being on the west side of Broadway. The testimony at least indicated that the deceased, after reaching Fillmore street, stopped on the west side of the north crossing of Fillmore street. It further appears in evidence that there was a north-bound car being propelled on the east track, and after the north-bound car had passed the Fillmore street crossing deceased started across to the east side, and just about the time he reached the east rail of the west track he was struck by the east front end of the south-hound car and killed. Two or three witnesses introduced by the plaintiff, with sufficient knowledge and experience as to authorize them to testify as to the speed of this car, stated that the car was running from twenty to twenty-five miles an hour. It is undisputed that at that point it was a down grade; that the fall for the two blocks immediately north of Fillmore street, the direction from which this car was coming, is twenty-five feet. There was other testimony showing the distance the car ran after striking plaintiff’s deceased husband, which strikingly emphasizes the fact that the car was being operated at a very rapid speed. Upon this showing, at the close of the plaintiff’s case, we have confronting us a state of facts which at least strongly tends to prove the careless and negligent operation of the car at the place of the accident in violation of the express provisions of the ordinances introduced in evidence. At the point where these negligent acts were committed, plaintiff’s husband was killed by the car operated in the careless and negligent manner, as indicated in the showing made by the plaintiff. This proof, in connection with the presumption which the law indulges as to the care and prudence of the deceased in approaching and crossing defendant’s railway tracks, in our opinion, entitled the plaintiff to go to the jury.

If the repeated and well-considered adjudications of this court, announcing the doctrine as to the presumptions indulged in favor of the injured party, are to be longer followed, then there is no escape from the conclusion that upon the facts developed at the close of the plaintiff’s case the presumption must be indulged that deceased, in approaching and crossing defendant’s tracks, was in the exercise of proper care. In Weller v. Railroad, 164 Mo. l. c. 198, it was said: “The presumption must be indulged that deceased did look and listen before attempting to cross the track, that is, that he was in the exercise of proper care. . . . Deceased had the right to presume that the defendant would obey the ordinances of the city regulating the speed of railroad trains, .... and when this presumption, together with the presumption that the deceased was at the time of the accident in the exercise of due care, are indulged, the plaintiff was entitled to recover unless it conclusively appeared from the evidence adduced by plaintiff, either by the direct or cross-examination of her own witnesses, that her deceased husband was guilty of negligence contributing directly to his own injury. [Stone v. Hunt, 94 Mo. 475; Buesching v. St. Louis Gaslight Co., 73 Mo. 219; Warren v. St. Louis Merchants Exchange, 52 Mo. App. 157.] And in order to overcome the presumption and to defeat plaintiff’s action, it devolved upon defendant to show, by the weight of the evidence, a failure on the part of deceased to exercise ordinary care to avoid the injury, and that his failure to exercise such care was its proximate cause, and so direct and immediate that, but for the want of such ordinary care, the injury would not have occurred.” In Buesching v. Gaslight Co., supra, it was said: “The presumption of due care always obtains in favor of plaintiff in an action to recover damages for an injury sustained by him through the alleged negligence of another.”

The rules of law announced in the cases above cited were fully reviewed by this court as well as the St. Louis Court of Appeals in the recent cases of Riska v. Railroad, 180 Mo. 168, and Deitring v. Railroad, 109 Mo. App. 524, and unqualifiedly approved.

This brings us to the consideration of the remaining proposition involved in the first contention based upon the action of the court in overruling the demurrer to the evidence at the close of the entire case. The position of counsel for defendant cannot be maintained upon this proposition unless all the facts developed in the trial of this cause, upon a fair and reasonable consideration of them, point irresistibly to but one conclusion; that is, that the plaintiff’s deceased husband was guilty of contributory negligence in approaching and crossing the tracks of the defendant. If upon due and proper consideration of all the testimony introduced in this, cause reasonable men might differ as to the inferences to be drawn from the facts disclosed by such testimony and such facts reasonably admit of different constructions and inferences, then we take it, under the well-settled rules of law repeatedly announced by this court, the question of contributory negligence must be left to the jury. The testimony as offered by the defendant falls far short of showing' such a state of facts as would have authorized the trial court to sustain the demurrer to the evidence interposed by the defendant. It may be said that in the testimony of the two witnesses upon whose testimony the defendant must chiefly rely in supporting their views upon this contention, Reuben Staten and the mortorman, Martin, may be found statements tending strongly to show that the deceased did not look or listen in approaching and crossing the tracks of the defendant, and that upon getting on the track he was instantly struck by the car being operated by the defendant’s motorman, yet when we analyze their entire testimony it signally fails to show, with such conclusiveness as the law requires, as would warrant the favorable action of the court upon the request by the defendant, that the deceased was guilty of contributory negligence. It is true that witness Staten says that the deceased walked directly across the track and was looking 'directly in front — neither looking to the north nor the south; this statement, however, is followed by an additional statement which clearly indicates that he did see the car and was trying to avoid it. Upon cross-examination this witness says, “It seemed as though he aimed to get by before the other car came. ” "We are unable to understand how the deceased could aim to cross over the track before the other car came unless he saw or knew the car was coming. This witness’s testimony should certainly not be construed as showing conclusively that the deceased did not look or listen and did not see the approach of that car that struck him. We find in his testimony the further statement as to the appearance of the conditions presented to him. He says there was a mail car coming north and a passenger car going south, and it looked to him that Eckhard ‘ ‘ thought he could cross. ” We are unable to see why a witness should conclude that Eckhard thought he could cross if he had no knowledge by looking or listening that a car was approaching; If he neither looked nor listened and was oblivious to the approach of any car, we see no reason why he should entertain any thought about it, as to whether he could cross or not. The only way it could look to the witness that Eckhard thought he could cross was by the action and conduct of Eckhard and the conditions presenting themselves which would require Eckhard to give the question thought as to whether he could cross or not before the approaching car reached him. Martin, the motorman, first states that deceased stepped immediately in front of the car without looking. This statement is afterwards qualified in answer to this question: “Did he look in the direction of your car before he went upon the track?’ ‘‘No, sir, he never looked towards my car that I could see.” In other words, this witness’s testimony simply amounts to this, that so far as he could see he did not observe the deceased looking towards the car, and this by no means conclusively establishes the fact that he did not look and listen for the approach of the car. These two witnesses in the course of their testimony use other very positive and emphatic phrases in respect to this accident, such as that, “He stepped upon the track and was instantly struck by the car;” however, it was the province of the jury to weigh the testimony of these witnesses and to consider it in connection with the undisputed physical facts.

There is one fact in connection with this accident about which all the witnesses agree; that is, that the deceased was near the east rail of the track when he was struck. The motorman, Mr. Martin, says he was on the easternmost rail of the track on which was the south-bound car when the car struck him, and that one more step and he would have been across. This being true, it must logically follow that when he first stepped over the westernmost rail the car must have necessarily been at least some distance from him and did not instantly strike him. All the testimony in .this cause makes it manifest that he was not struck until he reached the easternmost rail, arid this fact emphasizes the correctness of the conclusions of the jury that, if they found that this car was running twenty or twenty-five miles an hour and did not strike the deceased until he was just in the act of stepping over the east rail, had this car been operated in accordance with the provisions of the ordinance, at a rate of speed not exceeding ten miles an hour, the deceased would have made that last step and his death would have been avoided. It was a proper and legitimate calculation for the jury to indulge in, that if the deceased had gotten, according to the testimony, two-thirds or three-fourths of the way across this track before this car struck him, running at the rate of twenty or twenty-five miles an hour, if the speed had been lessened one-half, the additional step mentioned by the motorman could have been made by the deceased and it would not have struck him at all.

Witness Staten says that “it looked to me that Eckhard thought he could cross the track, and it seems as though Eckhard aimed to get by before the other car came,” and had this car been running at the speed limited „by the ordinance, the thought that he could cross was well founded, and doubtless his crossing would have been in perfect safety. The deceased had the right, as said in the Riska case, to presume that the car was not moving at a greater rate of speed than that prescribed by ordinance, and acting upon this presumption, had the car been running at the speed he had the right to presume it was, there was reasonably sufficient time for him to cross the track in safety, it was not contributory negligence for him to attempt to do so.

However, it is insisted by appellant that the testimony of Staten and Martin tended so strongly to establish contributory negligence that there is no room for presumption, and it was error on the part of the court to so instruct the jury. We are unable to give our assent to this insistence. Burgess, J., in the Weller case, very clearly and forcibly stated the rule which is strikingly applicable to the evidence in this case. He said: “It is not sufficient that the evidence on behalf of the defendant tended to show that deceased was guilty of negligence contributing directly to his injury, but before this court can declare as a matter of law that deceased was guilty of such negligence, the evidence must be substantially all one way, and not such that reasonable minds might differ with respect thereto. This case, we think, belongs to the latter class, and was properly submitted to the jury.”

After a full consideration of all the testimony in this cause and the legitimate inferences that the jury were authorized in drawing from the facts developed upon the trial, we are unwilling to say that the court should have sustained the demurrer to the evidence.

Complaint is made by appellant to the action of the court in modifying instruction numbered 4 requested by the defendant. We have carefully read the instruction as requested and number 4 as given, in which the modification is made. The complaint is chiefly directed to the terms employed in the closing part of the instruction, which limits the right of the motorman to assume and act upon the presumption that the plaintiff’s husband would stop before going upon the track, until he became aware that the plaintiff’s husband was going to get on the track in front of the car or until Ms conduct and actions would have led a person of ordinary prudence to conclude that he was going to do so. There was no error in the modification of this instruction. We are of the opinion that if the conduct and actions of a party approaching a railway track would lead a person of ordinary prudence, who might be operating a car upon said track, to conclude that such party was going upon the track, the right to act upon the presumption that the person would stop before going upon it, ceases.

A motorman has the right to act upon the presumption that a person approaching a railway track upon which he is operating his car will stop before undertaking to cross the track, so long as there is nothing in the conduct and actions of the person'so approaching as would indicate to a man of ordinary prudence that he was not going to stop, but was going to cross the track. Upon the observance of such conduct and' actions on the part of a person approaching a railway track as would indicate that he intended to- go upon the track, it is as clearly the duty of the motorman to pursue such course in respect to the operation of that car as he would if he was in fact aware that the person was going to get on the track.

This was not an improper or unjust limitation of the rights of the defendant in the operation of its business, but is simply the requirement of the performance of a plain duty to the public, which appropriately manifests the high regard the law entertains for the preservation of human life. It would be a humiliating confession upon our system of government if the law failed to require the strict observance of such duty under such circumstances in the operation of a business which is attended with so much danger to the traveling public.

There was no error in the denial of the request of the defendant for instruction numbered 3-. It will suffice to say that the subject of that instruction was fully covered by the other instructions given to the jury. The attention of the jury had been called by other instructions to the duty of the agents and servants of defendant in charge of and operating the car in respect to the stopping of it upon the observance of plaintiff’s deceased husband being in danger of injury, and the jury, under the instructions given, though not specially directed to do so, were authorized to consider all the tes-, timony applicable to the subject, which included all the conditions and circumstances at the time surrounding the act to he performed.

Instructions which undertake to make prominent certain parts of the testimony and directing the jury specially to consider certain facts in reaching their conclusions, as to the ultimate facts to he found, have not met with favor by' this court. There was no error in the court refusing the request of defendant directing the jury to consider certain particular facts in reaching a conclusion upon an ultimate fact to he found by them. Our attention upon this question is directed by counsel to the case of Murray v. Railroad, 176 Mo. 183. That case is clearly distinguishable from the ease at bar. The instructions requested and refused on that case required the jury to find a certain state of facts which were absolutely necessary to entitle plaintiff to recover. It was not a request directing the jury to consider certain facts in finding the ultimate facts necessary to be found; but it was a requirement of the jury to find the ultimate facts which were necessary to give the plaintiff any standing in court.

Finally, appellant complains that the court committed error in the admission of the ordinances in evidence. It is sufficient to say that in view of the recent, able and exhaustive review of this question by Gantt, J., speaking for the Court in Banc, in case of Sluder v. Railroad, 189 Mo. 107, the propositions involved in this complaint of error are no longer open questions in this State, and this contention must be ruled adversely to the defendant.

Ordinarily, willfulness in the infliction of injury in cases of this character, should not be attributed to those in charge of and operating the railway systems of this country. In this “dollars-and-cents” age, the demand made by the business public for rapid transit and the tendency to yield to such demands is readily understood; however, the pressing demands of a grasping business world can furnish no justification for the violation of express provisions in state and municipal law safe-guarding the traveling public.

The ordinances introduced in evidence in this cause were enacted as a rule of conduct for those to whom their provisions are made applicable; they were enacted for a wise and noble purpose, to protect the citizens from injury; they were enacted by municipal authority to be observed, and not violated. The facts in this case emphasize, the conclusion , that had these ordinances been observed this accident would have been avoided.

The instructions given in this cause fairly and correctly presented the law covering every feature of this controversy to which the testimony was applicable, and finding no reversible error, the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    MARY RYAN v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,
    October 25, 1905.
    1. NEGLIGENCE: No Contractual Relations: Electric Wires. The plaintiff’s husband was employed by a company with which defendant had contracted to install an automatic oil system in its electric powerhouse in accordance with plans and specifications prescribed by defendant, and while working therein, with defendant’s knowledge and consent, the wrench which he was using in his work of placing certain pipes came in contact with improperly insulated electric cables suspended overhead and made a “short circuit,” and as a result he was instantly killed. Held, that, although there was no contractual relations between the deceased and defendant, the doctrine that 'it is not negligence to omit to take precautionary measures to prevent an injury which if taken would have prevented it, when the injury could not reasonably have been anticipated and would not except under exceptional circumstances have happened, is not applicable, but, on the contrary, electricty being of a highly dangerous character, it was the duty of defendant to use every protection which was accessible to insulate its cables at the point where persons have a right to go, and to use the utmost care to keep them so, and the fact that no contractual relations existed between defendant and deceased, will not prevent his wife from recovering.
    2. -: Implied Notice. Knowledge of the character of insulation of electric cables installed by defendant and exclusively under its control, of the conditions under which that insulation was maintained, and of the probable effect of heat on the safety of the insulation, is chargeable to defendant. And the jury are justified in inferring that it had knowledge that the insulation had become soft and imperfect as a result of the action thereon of heat maintained in the conduit where the cables were.
    3. -: Insulated Wires: Anticipated Accident. Where danger of an electric shock was not imminent if the electric wires had been properly insulated and maintained in proper condition, and a reasonable man, whose employment brought him in close proximity to them, may have safely felt that he could have undertaken his work in their vicinity, the light there being too feeble to enable him to discover their defectively insulated condition but otherwise sufficient to enable him to perform the work immediately in hand, the defendant cannot 4 excuse itself for an accident to him due to the defective insulation on the ground that it sustained no contractual relation with him and was not, therefore, required to anticipate the injury.
    4. -: -: -: Contributory Negligence. Nor was the workman, under such circumstances, guilty of such contributory negligence in attempting to do his work under the conditions as bars the right of his widow to recover for his death.
    Appeal from St. Louis City Circuit Court. — Hon. Franklin Ferriss, Judge.
    Affirmed.

      Geo. W. Easley -withi-Boyle, Priest <& Lehmann for appellant.
    The court erred in overruling defendant’s demurrer to plaintiff’s evidence in chief. The strongest inference that can he drawn from the whole of the plaintiff’s evidence is that some portion of the insulation had run or dripped from the cable in consequence of the heat or temperature in the basement of the power house;, that the plaintiff’s husband, in some manner not explained by the evidence, allowed the wrench to rest upon the pipe and the other end of the wrench, by his act and that of his working companion, to come in contact with the cable by breaking through the insulation softened by the temperature of the basement, thus forming a circuit between the cable and pipe. It is indisputable that one of the deceased’s hands rested on the wrench, and his companion, Madden, leaves the question in doubt as to whether the other hand of deceased rested upon the pipe or upon his knee. But it is indisputable that, if his hand rested upon his knee, there would have been no circuit of electricity passed through his body. One pole of the circuit would have been wanting. The tile conduit upon which he stood was a non-conductor. If, however, one of his hands rested on the pipe, both poles of the circuit would be present and the current would have passed through his body. ‘ ‘ The injury could occur in only one way, .... namely, by his bare hand coming in contact with” the wrench which was then in contact with the wire, “and his other hand or part of his bare person coming into contact in the same instant with the iron” pipe, “so as to pass the electrical current through him. Could the defendant have reasonably anticipated, under these circumstances, the occurrence of an accident such as this? Ought the defendant to have foreseen it, in the light of attending circumstances ? We think not. It clearly appears that the use of the wooden pole in climbing up or coming down was not dangerous, nor was it possible for the plaintiff, while climbing or clinging to it, to have received a, shock even by touching the charged span wire, unless he completed the circuit, at the same instant, by touching the iron post with his naked hand or person. The defendant had no right to expect that an inexperienced operative would have climbed to such a point, much less that an experienced and competent one, with his knowledge of the situation, at the only possible point of danger, with the warning of this circuit breaker before him, would practically eliminate it as a means of safety, and by placing his body substantially in its place, complete the electrical circuit, so that the current would necessarily pass through his body. It was not expected that he would have occasion to touch or come in contact with the span wire beyond the circuit break, or the iron post, for any purpose, and certainly not so as to complete an electrical circuit with his body. ’ ’ Huber v. LaCrosse, etc., 92 Wis. 363; Walters v. Railroad, 64 App. Div. 150; Am. Brew. Co. v. Talbot, 141 Mo. 683; Ray on Neg. of Imposed Duties, pp. 183, 184; Webb’s Pollock on Torts (Enlarged Am. Ed.), pp. 45, 46; Fuchs v. St. Louis, 167 Mo. 645; 2 La. Batt’s M. & S., secs. 364, 601, 810; 1 Kinkhead’s Torts, sec. 316; Owings v. Oil Mill (S. CL), 33 S. E. 511.

      John S. Leahy and Bloch, Sullivan & Erd for respondent.
    (1) Appellant’s negligence was amply proven. Geismann v. Electric Co., 173 Mo. 674. (2) Deceased was not guilty of contributory negligence in working where he did, because apparently there was no immediate danger, and apparently the work might, with care, be safely undertaken. Mathis v. Stock Yards Co., 185 Mo. 434; Wendler v. House Fur. Co., 165 Mo. 540; Hamman v. Coal Co., 156 Mo. 244; Young v. Oil Co., 185 Mo. 634. (3) The burden of proving that deceased was guilty of contributory negligence, in the manner of doing his work, rested with appellant. Baker v. Railroad, 122 Mo. 544; Williams v. Railroad, 109 Mo. 486; Young v. Iron Co., 103 Mo. 328. (4) Preliminary statements in the charge, if erroneous, furnish no ground for reversal, Burton v. Trenton, 116 Mo. 371; Golden v. Clinton, 54 Mo. App. 116. (5) Deceased did not assume risks in his employment which were attributable to appellant’s negligence. Curtis v. McNair, 173 Mo. 279; Chambers v. Chester, 172 Mo. 483. (6) If the accident is attributable to the joint negligence of ap>pellant and deceased’s helper, or employer, appellant is nevertheless liable. Newcomb v. Railroad, 169 Mo. 422.
   GANTT, J.

This action was commenced July 19, 1901, against the St. Louis Transit Company and the Cullen & Stock Heating and Ventilating Company, to recover damages for the death of the plaintiff’s husband. An amended petition was filed on the 10th of December, 1901, omitting all reference to the Cullen & Stock Heating and Ventilating Company, other than that the plaintiff’s husband was a pipe-fitter in the employ of the Cullen & Stock Heating and Ventilating Company, which was under contract with the appellant to erect and place in position in its powerhouse on Tiffany avenue, between Vista and Park avenues; certain pipes for the conveyance of water through said building and to the engines and boilers therein. It is then alleged that on the 9th day of May, 1901, the plaintiff’s husband, James P. Ryan, at the special instance and request and with the knowledge and consent of the defendant Transit Company, entered the said premises in order to perform the labor required of him in the construction and erection of said pipes; that said Ryan was required to and did get upon a certain conduit, and while on said conduit, and while exercising the care and caution in and about his work which should have been exercised by a reasonably careful person, and while handling and adjusting one of said iron pipes entering into the construction in which he was then engaged, the said Eyan received through said pipe on which he was then working an electric shock, which then and there immediately caused his death.

The petition further alleges that adjacent and in close proximity to said iron pipes then being erected by said James P. Eyan, were certain cables or wires used by appellant for the purpose of distributing and equalizing the electricity between the switching boards in said building, and as a part of its appliance in generating and distributing electricity for the purpose of propelling its street cars; that said cables or wires were highly charged with electricity and were known to be so highly charged by the appellant, and that the said wires or cables so charged.were exceedingly dangerous to life and limb, and were known to be thus dangerous by the defendant; that because of the dangerous character of said wires or cables when so charged with electricity, and for the purpose of rendering, them less dangerous, said wires had been insulated, but plaintiff charges the fact to be that the insulation on said wires or cables was decayed, insufficient and inadequate to prevent the communication of electricity with which said wires or cables were charged, to other metallic substances coming in contact therewith; that the same were negligently and carelessly insulated in an improper manner, and had been permitted to become decayed, disintegrated and incapable of preventing the communication of electricity in said wires and cables to other metallic substances with which they might come in contact. That said wires or cables were negligently and carelessly strung along the ceiling of the basement of said building and immediately over the conduit aforesaid; that said wires or cables were supported or held to the ceiling of said basement at spaces aggregating five feet, and, by reason of the weight of said cables and the use to which they were put, the said wires sagged so that they hung from said ceiling at a point immediately over said conduit at a distance of about two feet below tbe ceiling, instead of being securely and tautly held close to tbe ceiling. Tbe insulation of said wires was composed of a material that, being stretched, would disintegrate, crumble and fall off, thereby destroying the protection which said insulation was intended to afford, whereby the wires proper were suffered to come in contact with other substances, or, because of the defectiveness and insufficiency of the insulation, the electricity contained therein could be and was communicated to other objects with which said wires or cables could' be and were in contact, and the said wires had been for a long time maintained by the defendant in the condition and position aforesaid, that is, in a condition and position such as permitted the electricity to be easily communicated to other substances coming in contact therewith, and that the maintenance of said wires or cables in said condition and position was negligence. Plaintiff says that on said 11th day of May, 1901, by reason of the defective condition of said wires and cables aforesaid, the electricity contained therein was communicated to the pipe or piping then being erected, and in the erection of which the said James P. Ryan was then engaged, and that while he, the said James P. Ryan, was erecting the said pipe or piping, and while he, the said James P. Ryan, was exercising due caution, the electricity communicated from said wires or cables to and through said pipe or piping was communicated to the body of the said James P. Ryan with such force and violence as to cause his immediate death as aforesaid. Plaintiff says that it was the duty of the defendant to provide the said James P. Ryan a safe place in which to perform his labor; that the said pipe or piping was erected by said James P. Ryan at the point indicated and immediately over the said conduit by the command and direction of the defendant, and that it was the duty of the defendant to keep the said location free of danger while he, the said James P. Ryan, was complying with the directions and commands of the defendant, but plaintiff says that the. said place so furnished him to do the work aforesaid was not a safe place, but on the contrary, and by reason of the facts aforesaid, the same was a highly dangerous place, and because of the danger of the electricity contained in said wires or cables and the probability of the same being communicated to the pipes and piping upon which he, the said James P. Ryan, was then working because of the defective insulation resulting from the causes aforesaid, the defendant failed in its duty to keep and maintain the said location, where the said James P. Ryan was then working, free from danger, and that by reason of the failure of the defendant to furnish the deceased, James P. Ryan, a reasonably safe place in which to perform his labor and its failure to keep the same free from danger the said James P. Ryan was killed as aforesaid.

The answer was a general denial, with a plea of the assumption of the risk by the deceased, and the deceased’s contributory negligence in the handling of the tools and piping which he was engaged in installing.

The reply was a general denial.

The facts developed on the trial were substantially as follows:

Cullen & Stock Heating & Ventilating Company contracted with appellant, the St. Louis Transit Company, to furnish materials and labor and install an automatic oiling system in appellant’s powerhouse at Tiffany and Vista avenues, in St. Louis, upon plans and specifications prescribed by appellant, the St. Louis Transit Company. For this purpose, it was necessary to install in the basement room in the powerhouse, certain pipes suspended a short distance from the ceiling by hangers. The plaintiff’s husband was a steam-fitter by trade, and was employed by the said heating and ventilating company to assist in this work, and was engaged for about three weeks in working on the premises in this connection. He and his helper, one Madden, installed the pipes referred to, and had put in three and were engaged in putting in the fourth when the accident occurred which cost him his life. The pipes ran parallel with each other, and a few inches apart. Above them were suspended a number of insulated wire cables, in use by appellant to transmit dynamic electricity to its overhead trolley wires in the streets, for the propulsion of its cars. These cables were constantly and highly charged with the electric fluid. They were suspended from the ceiling by hangers which were eleven feet and some inches apart, and which, according to the expert testimony in the case, were not close enough together; and between the hangers the cables had sagged downward. The experts said that the insulation of these cables was what was called weatherproof insulation, and not a proper kind of insulation to use in such a place as this basement, because this character of insulation was susceptible to heat, and the degree of heat which constantly prevailed in the basement was likely to cause this kind of insulation to soften and possibly to drip or run. In its normal condition, the insulation used could not be cracked, penetrated or broken so as to expose the live wires beneath it, without the exercise of considerable force; but if exposed to high temperature and softened, it might then be penetrated, broken or displaced, although subjected to no great degree of force. It might become softened by heat so as to be dangerous to handle, without that fact being apparent to the observation other than by actually touching the insulation. Plaintiff’s husband was killed while putting in the pipe, in proximity to these cables, by the creation of what the experts call a short circuit, caused by contact between the wires of one of the cables and either the pipe upon which, or the wrench, with which he was working. This, the experts said, could not have happened if the insulation had been in good condition, because these cables were entirely harmless unless some metallic substance was brought in actual contact with the wires themselves, which could not have happened without the exercise of considerable force if the insulation had been in good condition. All of the testimony showed that with the insulation in normal condition, these cables could be handled with impunity. The only metallic substances which Ryan was using or handling at the time, were the pipes which he was installing, and the wrench which he and his helper were using to do the work. The evidence on the part of the plaintiff tends to show that one of these two came in contact with the wires beneath the insulation of the cable, and thus caused the short circuit which produced the flames and shock, and resulted in Ryan’s death. It is conceded that the evidence does not disclose positively which of the two made the contact. The parties were screwing the pipe into another by means of a wrench. Madden, the helper, who survived the accident, says his hand was between the wrench and the cable which was closest, and that at the time of the catastrophe, they had ceased to pull on the wrench, and Ryan was looking at the coupling of the pipe, while he himself was simply holding the wrench in position, and exercising no more force than was necessary for that purpose. The experts were of the opinion that contact between the live wires and the wrench alone would not have produced the phenomena which happened, unless the wrench was at the time in contact with the pipe; while contact between the pipe and the wire alone would have produced a short circuit. The wrench, the pipe and the cable were before the jury, and the experts, from the condition of the two former, were of the opinion that the pipe, and not the wrench, had made the contact. At the trial, the insulation upon a portion of the cable, then in a normal condition of temperature and hardness, was hammered with a wrench without any effect. A portion of both the cable and the pipe were burned up in the contact at the time-of the accident. It was further shown that the insulation on the cables at this place was soft and sticky at the time, although there was nothing to show that deceased knew that fact, or indeed, .that he knew of the danger to which such a situation gave rise. The light in this basement was sufficient to enable the men to do the work they had set about, but not sufficient for one •to make an examination of the insulation of these cables. Plaintiff’s husband and Madden, his helper, attempted to light candles and a torch to furnish them more light to aid them in their work, but a strong draught prevented their doing it. The experts testified that owing to the excessive heat which constantly prevailed in this room, the proper kind of insulation to have used was either fireproof insulation, or fire and moisture-proof insulation, each of which is impervious to the action of such heat as prevailed there.

There was evidence also to the effect that the insulation might have been melted or softened by the excessive current of electricity passing through the cable as well as from the heat in the room. And that although the insulation had run and melted off, the outer covering of cloth would still remain, and that if. the wire resting on the pipe had been perfectly insulated the contact would not have occurred.

The instructions given by the court will be noted and considered as far as necessary in the opinion of the court. The jury returned a verdict for the plaintiff for $4,666.66. In due time the defendant filed its motion for a new trial and in arrest of judgment, which were duly considered and overruled, and the defendant brings the case to this court by appeal.

I. The first, and, we may say, the main, contention for a reversal of the judgment is that the circuit court should have sustained a demurrer to the evidence, and this is based upon the ground that the defendant could not have reasonably anticipated the occurrence of such an accident as the one which caused the death of plaintiff’s husband. It is practically conceded by the learned counsel for the defendant that the plaintiff’s evidence justified the jury in finding that some portion of the insulation had run and dripped from the cable in consequence of the heat or temperature in the basement of the power house, and that the plaintiff’s husband, in-some manner not clearly explained by the evidence, allowed the wrench to rest upon the pipe, or the other end of the wrench by his act and that of his working companion to come in contact with the cable by breaking through the insulation thus softened by the temperature of the basement, and in this manner forming a circuit between the cable and the pipe. The tile conduit upon which he stood was a non-conductor. If one of his hands rested on the pipe and the other rested on the wrench, both poles of the circuit would be present and the current would have passed through his body. The insistence is that the negligence of the softening of the insulation would not have caused any injury to the deceased had he not caused the wrench to touch the wire and no harm would have followed touching the wire with the wrench if the deceased had not had his hand on the pipe at the same instant he had it upon the wrench, and the doctrine is invoked that it is not negligence not to take precautionary measures to prevent an injury, which if taken would have prevented it, when the injury could not reasonably have been anticipated, and would not, unless under exceptional circumstances, have happened. In determining the soundness of the proposition thus advanced by the appellant, it is essential to ascertain what duty the defendant owed to plaintiff’s husband with reference to its live wires in the circumstances of this case. It is to be noted that there were no contractual relations between the deceased husband of the plaintiff, and the defendant Transit Company, but it is undisputed that the deceased was upon the premises of the company with its knowledge and consent, and to do a work for which the company had contracted with the employer of the deceased. When the defendant company made its contract with the Cullen & Stock Heating & Ventilating Company to install the oil system in the defendant’s powerhouse upon plans and specifications prescribed by itself, it knew and was bound to anticipate the necessity under which the Heating & Ventilating Company rested of sending its employees upon its premises for the purpose of installing the pipes upon which the deceased was working when he was killed, and hence the duty devolved upon the defendant of keeping the electrical wires, near which the decased was required to work in the performance of his duty in installing the oil pipes, so insulated and protected as to be safe for the deceased to work in their vicinity. This doctrine, after a thorough consideration, was announced-in Greismann v. Electric Company, 173 Mo. 654. In that case the wire that caused the injury belonged to a lighting company, and was suspended at the place of the accident upon private premises, although the latter did not belong to the owners of the wires. The deceased in that case went upon the premises to remove a sign which apparently belonged to a tenant, and in the course of his labors a wire with which the sign was suspended came in contact with a live wire, which produced the shock which resulted in his death, and the conclusion was announced that ‘ ‘ electricity is one of the most dangerous agencies ever discovered by human science, and owing to that fact it was the duty of the electric light company to use every protection which was accessible to insulate its wires at the points where people have a right to go, and to use the utmost care to keep- them so-; and for personal injuries to a person in a place where he has a right to be without negligence on his part contributing directly thereto, it is liable in damages. ’ ’ The rule thus announced in the Geismann case was followed and approved, after a review of the authorities, in Young v. Waters-Pierce Oil Company, 185 Mo. 634. The fact, then, that there was no- direct contractual relation between the plaintiff’s husband and the Transit Company will not prevent a recovery by the plaintiff in view of the highly dangerous character of the electric wires about which plaintiff’s husband was required to work. As was said by the Supreme Court of New Jersey in Van Winkle v. American Steam-Boiler Insurance Company, 19 Atl. l. c. 475: “The law hedges around the lives and persons of men with much more care than it employs when guarding their property, so that, in this particular, it makes, in a way, every one his brother’s keeper; and therefore it may be well doubted whether in any supposable case redress should be withheld from an innocent person who has sustained immediate damages by the neglect of another in doing an act, which, if carelessly done, threatens, in a high degree, one or more persons with death or great bodily harm.” In view of these legal principles the insistence of counsel that the accident was one which the company could not have reasonably anticipated and therefore was not bound for its failure to keep its electric cables properly insulated, would seem to be without merit. It was agreed on all hands that the insulation on these cables was safe enough when normal, but was shown to be of a kind to be easily affected by the extraordinary temperature to which the Transit Company knowingly and continually subjected them, and knowledge of the character of the insulation installed by itself, of the conditions under which it was maintained, and of the probable effect of those conditions on the safety of the insulation, must be chargeable to the defendant company. It knew, when it sent the plaintiff’s husband to work about these cables, the kind of insulation it used, and being in the exclusive control of the basement, the jury was justified in inferring that it had a knowledge of the condition of the insulation, and that it had in fact become soft and imperfect. While it is true that the evidence does not disclose exactly how the accident was occasioned, it does, show that either the wrench or the pipe which the deceased was handling at the time of his death came in contact with the wires beneath the insulation of the cable. If the former, it was in its use in turning the pipe and owing to the softened condition of the insulation; if the latter, it was because the cable sagged and touched the pipe, and the pipe in turning displaced the safe insulation and thus touched the live wire. That neither could have happened if the insulation had been in a good condition is obvious and was conclusively proven by the testimony in the case. The evidence without any contradiction showed that these wires were safe to approach and handle when the insulation was in a proper condition, and while it is dangerous to a greater or less degree to approach live wires under any conditions, and the deceased was aware of this and even mentioned it to his companion, the evidence was clear that if the wires had been properly insulated and maintained in proper condition the danger was not imminent and a reasonable man would have felt that he could safely undertake to work in their vicinity.

This court in the Geismann case cited and adopted the language of the Supreme Court of Louisiana in Clements v. Electric Light Company, 44 La. Ann. 692: “Electric wires are disarmed of danger if properly insulated. By looking one can see if there are evidences of insulation. If there are evidences of it, and no defects are visible after careful inspection, one whose employment brings him in close proximity to the wire, and which he-has to pass, either over or under it, is not guilty of contributory negligence by coming in contact with it, unless he does it unnecessarily and without proper precaution for his safety. The wires if properly insulated would have been harmless.” In this case the wires had been insulated. The light in the basement was not sufficient to enable the deceased to inspect the insulation and the draught was so strong that he and his co-workman could not keep a candle or torch burning. There was sufficient light for them to do the work they were sent to do. They had every reason in these circumstances to assume that the wires were safely insulated, and that they could work about them without danger to themselves, and it must be held that the company in contracting for the work of installing the oil pipes anticipated, or in the exercise of ordinary care were bound to anticipate, that these workmen while in the course of their employment would touch or come in, contact with these cables, and therefore the principal contention of the defendant,* that it could not have reasonably anticipated the occurrence of such an accident as this, appears to us entirely untenable, but on the contrary the want of proper insulation of these cables was the proximate cause of the injury to plaintiff's husband.

As to the other proposition advanced in support of the demurrer to the evidence, to-wit, that plaintiff’s husband was guilty of such contributory negligence as to bar a recovery, it is clear, we think, from the foregoing that deceased was not guilty of negligence in attempting to do his work under the conditions as they must have appearéd to him as already detailed. There is no evidence whatever to support the claim that he was doing his work in a negligent manner. The presumption is that he was in the exercise of due care and the question of his contributory negligence was duly submitted to the jury in the instructions given by the court.

II. It is urged that the court erred in its instructions in behalf of the plaintiff. These instructions were as follows:

“The plaintiff in this case sues the Transit Company to recover damages for the death of her husband, James P. Ryan, which occurred' on the 11th day of May, 1901, as the result of an electric shock received by him while working in the basement of Power House No. 2 of the defendant. The plaintiff claims that this electric shock was due to the fact that the insulation of the electric wires was improper, imperfect and impaired, and that their .condition was due to the negligence of the defendant. The defendant denies that there was any negligence on its part and asserts further that the accident was the result of the negligence of Ryan himself by reason of his failure to exercise due care in the performance of his work. You have heard all the . testimony in the case and the court instructs you as follows concerning the law.:
‘‘ The deceased Ryan was lawfully on the premises of the defendant. Although Ryan was working for an independent contractor and was not under the control of the defendant, still it was the duty of the defendant to exercise ordinary care and diligence to have the premises in reasonably safe condition. By ordinary care and diligence is meant such care as persons of ordinary prudence would exercise under the same or similar conditions. If the insulation on the electric wires in question was in an imperfect and dangerous condition, and if such condition was known to the defendant or could have been known by the exercise of reasonable care or inspection, and if Ryan received an electric shock by reason of such imperfect condition and it was without any negligence on his part, then plaintiff is entitled to recover a verdict. The mere fact, however, that the insulation was in an imperfect condition would not make the defendant liable unless the further fact appears to your satisfaction from the evidence that the defendant knew or could have known- of such defective condition by the exercise of due and ordinary care and inspection.
“On the other hand you are instructed that defendant was not an insurer of the safety of plaintiff’s husband and would not be liable for the mere fact that Ryan was killed from an electric shock on defendant’s premises, nor would the defendant be required to use the most perfect kind of insulation, if that which was used was reasonably safe and proper under all the circumstances and facts in the case, and the defendant would not be liable if the death of Ryan resulted from accident without the fault or negligence of anybody.
“Plaintiff cannot recover in this case unless the evidence shows and until she has satisfied you, by the greater weight of the testimony, that the death of her husband was due to the negligence of the defendant as defined and explained in these instructions in permitting the insulation to be imperfect.
“You are further instructed that with regard to the question of contributory negligence which defendant sets up in his answer, if the accident to Ryan was the result of his own negligence and carelessness in working in a place which a reasonable person in his position would know to be.dangerous, or of his negligence and carelessness as to the manner in which he performed his work, and that his carelessness and negligence directly contributed to the injury, then plaintiff is not entitled to recover. A workman has no right to work in a place which is obviously dangerous, and if he does so he takes the risks which are naturally incident to such a situation, but the mere fact that Ryan may have known that the place was dangerous would not in itself deprive the plaintiff of the right to recover, if in point of fact the accident resulted from the negligence of the defendant, and if Ryan while working in proximity to the cables exercised such care and caution as a man of ordinary care and prudence in his calling would exercise under like circumstances; and although he may have known there was danger, yet if the danger was not such as to threaten immediate injury to him, or if he might have reasonably supposed that he could safely work in proximity to said wires by the use of care and caution, then he cannot be said to have been guilty of contributory negligence.” '

The objection to these instructions seems to be that the instructions do not follow the allegations of the petition. We think the objections urged against these instructions are extremely hypercritical. Leaving out the preliminary statement of the court as to the respective claims of plaintiff and defendant, it is obvious that when the court came to charge the jury what facts would authorize the recovery by the plaintiff, it told the jury that the defendant was not required to use the most perfect form of insulation and that if that which the defendant was using at the time was reasonably safe and proper there could be no recovery, but if the insulation was in an imperfect and dangerous condition, and this condition was known to the defendant or could have been known by reasonable care and inspection, and if the deceased received an electric shock by reason of such imperfect condition without any negligence on his part, then the plaintiff was entitled to recover. The instruction was more favorable to the defendant than was authorized by the decision in the Geismann case, but of this the defendant is in no condition to take advantage, as the instruction was more favorable to it than it had a right to demand. The criticism on the instruction of contributory negligence, we think, is without any merit. The instruction taken as a whole and read all together was a fair and correct enunciation of the doctrine of contributory negligence as applied to the facts of this case.

III. Error is also assigned in the refusal of certain instructions prayed by the defendant. We have carefully gone through each one of these requests and noted the objections of defendant’s counsel, and -without encumbering this opinion with a critical analysis of each of them we must content ourselves with saying, first, as to those which were applicable to the issues on trial, they were fully covered by those given by the plaintiff. The others had no relevancy to the case and were properly refused on that ground and could only have served to have misled the jury and turned their attention from the real facts of the case.

After full consideration of the record we find no reversible error and the judgment of the circuit court is affirmed.

Burgess, P. J., and Fox, J., concur.