(248 S.W.)

ant's given instruction L, and also in plaintiff's instruction 1.

[17] Finally, it is contended that the court

that, while including some of the defenses relied upon by defendant, it omitted the one that the negro acted in a spirit of revenge and to gratify his own personal feelings. But, as we have heretofore seen, if the negro was acting within the scope of his employment in striking plaintiff, then the fact that he also had an ill feeling of his own to gratify would not absolve the master. We do not think the instruction is confusing, nor does it leave out any of the elements of plaintiff's case or omit any defense of defendant. It reads as follows:

him up, for there the person assaulted was not interrupting nor interfering with the master's work, and hence both the foreman in making the order and the employee in obey-erred in giving plaintiff's instruction 1, in ing it turned aside from the master's work to accomplish their own purposes of ill will. Besides in the case at bar no objection was made to the evidence when given by plaintiff nor was any motion made to strike it out until later, after the examination had proceeded for some time. The objection was then too late. Gieske v. Redemeyer (Mo. App.) 224 S. W. 92, 94. When later Ford testified to the same thing, objection was made, but it was properly overruled. Laughlin v. Kansas City, etc., Ry. Co., 275 Mo. 459, 205 S. W. 3, 8. The conclusion is that the foreman's order would therefore seem to be admissible as a part of the res gesta. Knoche v. Knoche, 160 Mo. App. 257, 262, 142 S. W. 766; May v. Chicago, etc., R. Co., 284 Mo. 508, 225 S. W. 660; Waller v. Hannibal, etc., R. Co., 83 Mo. 608, 612.

[15] Somewhere near the close of the entire case defendant orally moved the court to grant a continuance in order to obtain the deposition of Sturgis, who was in Kansas, to deny that he gave the negro any such order. Sturgis testified in the case by deposition, which, of course, was taken before the trial, and nothing was asked or said therein about any such order. Defendant asked a continuance on the ground of surprise at the testimony of such order. The court overruled the motion. No affidavit of surprise was filed; and had error been committed thereby, no complaint as to the court's action can be relied on. Lane v. Kansas City Rys. Co. (Mo. App.) 228 S. W. 870, 872.

Instruction H, which sought to withdraw the whole of what the foreman said as he and Ford were picking plaintiff up, was properly refused, since, as hereinbefore stated, the part, "I oughtn't to have said anything to that nigger," or, "I wish I hadn't said nothing to that nigger," was admissible. The instruction, if given, would have withdrawn this evidence from the jury. The same is true with regard to instruction I, which sought to withdraw from the jury the evidence of the foreman's order to the negro to go on by, etc., the instant before the blow was struck.

[16] Instruction F, which was refused, told the jury that, if they believed from the evidence that "Noland called the negro Thompson a black son of a bitch, and that his so doing was the beginning of the quarrel between them," then the verdict should be for defendant. There was no error in refusing this instruction, for, aside from whether the instruction stated the law correctly relative to epithets justifying an assault, and whether the instruction assumed that there was a quarrel between them, the subject-matter of the refused instruction was properly covered and submitted in defend

"The court instructs the jury, if the, jury believe and find from the evidence that on or about September 6, 1919, plaintiff went upon the premises of defendant on the invitation of defendant to deliver building material, and that while so engaged on said premises and at the time in controversy plaintiff was blocking the runway in question, if so, and that the man Thompson, mentioned in evidence, was then working for and was acting as an employee and agent of defendant on said premises, if so, and was then and at all times referred to in evidence, on duty and as such employee and agent, if so, was at said time and while plaintiff was so blocking said runway, if so, attempting to use same, if so, and if you further find and believe from the evidence that at said time and place defendant, by and through said Thompson as its employee and agent (if you so find such to be the facts, and that said Thompson was acting as such agent of defendant, as the term 'agent' is defined in these instructions), violently struck plaintiff with a brick, and thereby injured plaintiff, if so, and if you so find from the evidence that at said time and in striking plaintiff, if he did, said Thompson was acting as the agent of defendant, if so, as the term 'agent' is defined in these instructions, and if you further find and believe from the evidence that plaintiff did not himself get into an argument and fight with said Thompson, and that plaintiff did not attempt to attack said Thompson, and said Thompson that Thompson was not justified in striking did not strike plaintiff in self-defense, if so, and plaintiff at said time, if so (as explained and submitted in other instructions herein given you), then your verdict must be for plaintiff and against defendant.

"The term 'agent' as used in this instruction and all the instructions herein, means an employee who is at the time engaged in performing his duties to his employer, and engaged in acting under the authority and directions of his furthering the interests of his employer and employer or a superior foreman of his employer over him."

So far as the alleged omission of said defense is concerned, the instruction required the jury, before a verdict for plaintiff could be returned, to find that plaintiff did not get into an argument and fight with Thompson, did not attempt to attack him, that Thompson did not strike plaintiff in self

defense, and was not justified in striking 4. him. The reference to other instructions explaining what was meant by this last was fulfilled by the giving of the above-mentioned instruction L, which reads as follows:

"If you believe and find from the evidence that at the time the negro Thompson threw the brick in question plaintiff, Noland, was threatening to strike him with an iron bar, and that the brick was thrown by the negro Thompson to defend himself against such attack, then your verdict should be for the defendant."

Under the evidence there could be no justification for the assault except self-defense. There was not even an intimation that the negro was insane. And the question whether the negro acted solely to gratify his own ill feeling was taken care of by the requirement that the jury must find that he acted in furtherance of the interests of his employer and under the directions of his foreman.

Being of the opinion that there is no warrant or justification for our disturbing the judgment, it is accordingly affirmed.

The other Judges concur.

Master and servant 289(19)-Contributory negligence in picking up defective insulated wire held question for jury.

In action for the death of steam shovel engineer killed by handling a fallen electric wire broken by contact with machine, held, on the evidence as to knowledge of the danger, that it was a question for the jury whether deceased was negligent in picking up the wire.

5. Master and servant 284 (3)-Negligence of employee acting outside the scope of employment in picking up defective insulated wire held question for jury.

In action for the death of a steam shovel engineer killed by handling an electric wire broken by contact with the machine, held, on the evidence, whether he acted within the scope of his employment in picking up the wire was a question for the jury. 6. Master and servant

291(4)—Instruction

on liability for injury from fallen electric wire held error.

In action for death of a steam shovel engineer killed by handling a fallen electric wire broken by contact with the machine, where the petition was not based on negligence in maintaining an electric wire close to the coal yard where it was likely to be broken, regardless of the insulation, and the gist of the negligence was the long-continued maintenance of the wire without sufficient insulation, an instruction that disregarded how or why the wire fell, which stated a case of liability commenc

HOLLIS v. KANSAS CITY LIGHT & POWER ing with the wire on the ground and the rest

CO. (No. 14569.)

(Kansas City Court of Appeals. Missouri. March 5, 1923.)

1. Appeal and error 1099 (8)-Issue on former appeal not res adjudicata.

Where a case was tried under an amended petition, and on evidence manifestly not the same as on former appeal, defendant's contentions that the evidence showed no negligence on its part to its employee, or, if shown, the employee was guilty of contributory negligence and acted outside the scope of his employment when killed, and case should have been taken from the jury, cannot be dismissed on the ground that the issue has become res adjudicata.

2. Master and servant 286 (20)-Negligent insulation held a jury question.

Employer's negligence in not maintaining proper insulation on overhead wire which deceased, a steam shovel operator, picked up after breaking by contact with boom of the steam shovel, held a jury question.

3. Master and servant 289 (35)-Negligence of electrocuted steam shovel operator for jury.

In action for death of steam shovel engineer killed by touching an insulated overhead wire which broke and fell after contact with the boom of a steam shovel, held, on the evidence, that decedent was not, as a matter of law, negligent in moving the machine with the boom pointed toward the wire contrary to rule.

of defendant's negligence involved merely its insulated condition after it was on the ground, no matter whether the thing which caused it to fall was also the cause of the insulation being defective, was error.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Bertha D. Hollis against the Kansas City Light & Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

John H. Lucas, William C. Lucas, and Ludwick Graves, all of Kansas City, for appellant.

Gamble, Trusty & Pugh, of Kansas City, for respondent.

TRIMBLE, P. J. This case was here once before on appeal by defendant, at which time the judgment was reversed and the cause remanded for errors committed in the course of the trial. See Hollis v. Kansas City Light & Power Co., 204 Mo. App. 297, 224 S. W. 158. Since then it has been retried, a verdict of $3,000 for plaintiff obtained, judgment was rendered thereon, and defendant has again appealed.

[1] The most important question, and the one that should be settled first, is whether or not a case was made which should have been submitted to the jury. Defendant's

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

(248 S.W.)

view is that no submissible case was made:, also extending therefrom over into said coal First, because no negligence on the part of yard and across one of the prongs of defenddefendant toward its employee, plaintiff's ant's Y switch track leading into and out husband, was shown; second, even if negli- of defendant's yard. So that, in attempting gence has been shown, the deceased husband to remove said wire, deceased was not only was, as a matter of law, guilty of contribu- trying to remove said wire as an obstruction tory negligence; and, third, that deceased to the work in said coal yard, but was also was outside the scope of his employment or seeking to get such obstruction out of the duties when killed. On the evidence which public street adjacent thereto, and was therewas before us at the former appeal, we held fore within the scope of his duties as foreagainst defendant on all three of these man of the yard when killed, and that plainbranches of the question, recognizing, how- tiff's husband, without fault on his part, ever, that the case was a very close one. The while in the scope of his employment as forecase now before us was tried under an man in charge of the yard and of the work amended petition and upon evidence which is therein, was killed by electricity passing into manifestly not the same in all respects as him when he came in contact with said wire the evidence on the former appeal. We can- heavily charged with electricity, "which wire not, therefore, dismiss defendant's contentions the defendant then and there, and continuouswith regard to the above matters by merely for a long time prior thereto, carelessly ly saying we have once decided them ad- and negligently allowed and permitted to be versely, and the issue has now become res and remain insufficiently insulated, whereby adjudicata. It is our duty to examine the said electricity escaped from said wire evidence now before us and determine the through said insulation into said Hollis," etc. matter according to the law applicable to the situation now presented.

Now, manifestly, the negligence relied upon is the long-continued maintenance of the A detailed description of the situation and wire insufficiently insulated, in a place close surroundings in defendant's coal yard where to decedent's work, where it was likely to plaintiff's husband was killed, and also a fall and do injury; in other words, the instatement in minute detail of the facts as sufficient insulation whereby the electricity then disclosed, are set forth in the former escaped was the insufficient insulation existopinion. We do not think it is necessary to ing before the wire fell, and not merely deagain state those matters here, but will only fective insulation caused or brought about by consider and discuss the present evidence in the event which caused it to fall. And in this determining whether any changes in the ul-case the wire was caused to fall because of timate constitutive facts are now presented the 45-foot boom of the steam shovel coming and, if so, their effect upon the law governing the case. We also set forth in said former opinion our views of the law on the question of whether a case for plaintiff was made under the former evidence, which views are to be found in paragraphs 1 to 7, inclusive, on pages 161-164 of said report in 224 S. W. (204 Mo. App. 305-313). It will not be necessary to again discuss them save only in those respects, if any, wherein they may be affected by the difference, if any, between the evidence now and on said former appeal.

in contact with it while deceased was moving the steam shovel north toward the wires, with the boom pointing in that direction instead of turned away therefrom. This occurred only a very few moments before the death of plaintiff's husband, and defendant claims that moving the steam shovel toward the wires with the boom pointing in that direction was in violation of its rule in that regard. Furthermore, the break or fall of the wire did not directly and immediately cause plaintiff's husband's death. That would not have occurred if he had not gotten off his The theory of plaintiff's cause of action shovel and gone over and picked the wire up. and the specification of negligence charged in But, without regard to these other questions the petition against defendant, on which the as to deceased's duties and his alleged concase was based this time, is: That plaintiff's tributory negligence involved in the above husband, Charles F. Hollis, was not only situation, plaintiff must offer evidence from the engineer on defendant's steam shovel in which the jury could reasonably find that its coal yard, but was defendant's foreman the insulation was defective before the wire in charge of said yard during his shift; that fell, and it would seem that there must alone of defendant's wires heavily charged so be evidence from some source tending to with electricity was maintained along Guin- show that it was on account of the prior deotte avenue on the north of said coal yard fective insulation that the wire fell on mereand in close proximity to the work of shov-ly coming in contact with the boom, rather eling coal; that said wire was likely to fall than that the force of the boom caused the and cause injury to plaintiff's husband and wire to fall, either by breaking both insulaothers lawfully upon defendant's premises tion and wire, or by destroying the insulaand also those who might use the street at tion at the point of contact, whereby the said place; that at the time of the husband's wire simply burned in two because of the death the wire which killed him was down connection thereby established. upon the surface of said Guinotte avenue and

With reference to the alleged negligent in

sufficient insulation prior to the fall, plaintiff introduced no witness who testified to seeing the condition of the insulation prior to the fall. Her evidence in that regard is derived solely from evidence as to the condition of the insulation on the wire after Hollis picked it up and was killed. That evidence, in substance, is as follows: Franka, one of the men who were walking along the street and ran to Hollis when they saw him fall, said that he knocked the wire out of Hollis' hands with a 2x6; that deceased was holding the wire at a place about 12 or 14 inches from the end; that witness saw the insulation in his hands between his fingers, and when he knocked the wire out the insulation remained in his hands sticking out his fingers; and with respect to the insulation other than the part which came off in Hollis' hand, he noticed it was "an old wire; there was pieces of insulation broken out of it; rotten insulation was on the wire." The other man, Riley, who was with Franka, said:

*

worn.

"All of the insulation on those kinds of wire, that I know of, is dark, but this was bleached out, kinda brown looking; it was It appeared kinda brown and worn in places, kinda thready, like it was kinda stretched out you know; kinda like a string when it is stretched out."

*

When asked if he observed any places that were not insulated, he said:

"I can't say as I noticed any places that it was worn off any distance at all, to speak of, but it was broken in places, the insulation was; that is, apparently to me, of course; I am not a wire expert, you understand."

Later on he said:

"Frankey jerked it [the wire] out [of deceased's hands] with a stick you know, and when he did all of the insulation left came off with it.

not to be injured if the insulation was proper." After testifying in regard to different makes of standard insulation, including the General Electric Company's No. 6 wire, which was the kind of wire that fell, he said the insulation would not break if struck by something, as it was malleable, but that, if the insulation was cut, the current would escape wherever that cut was. Defendant elicited certain evidence from its expert witness Clark tending to support the idea that the insulation along the wire could be damaged or caused to "kind of crackle, get open, porous, no longer good for insulation," by reason of the stretch and strain it was subjected to if the boom struck it and broke it by force instead of merely touching it and burning the wire in two. But this cannot be accepted as a conclusive explanation of the condition of the insulation on the wire for the following reasons: The evidence of Hunt, defendant's witness and who saw the contact made by the boom with the wire, tends to show that the boom came in contact with

the wire, and upon a short circuit being thus established the wire burned in two because of the great heat developed rather than that the wire was crashed into and broken by force. Manifestly the evidence is such that the jury could take that view of it. Holis was exerting himself to stop the shovel, it had reached level ground, and, although there were many wires there, only one, the one the boom had touched, was affected. There was, it is true, evidence to the effect that the insulation was off the wire only for a space of two inches next to the end. Plaintiff elicited evidence, however, which tended to show that the insulation "may have been off in places" along the wire because fire developed from it at places where it was on the ground; and this witness, when asked whether, unless the insulation was off, the wire would burn where it came in contact with the ground, said, "Well, no; the insulation would hold naturally when it came in contact with the ground," unless made damp by some wet place, but there was no wet place there so far as he knew. Hunt would not say whether the insulation was off before Hollis picked it up or not, but there was evidence that it was off because it burned In addition to the foregoing, plaintiff in- off, though no fire manifested itself until afttroduced Palmer, conceded to be an expert iner Hollis picked up the wire. Lynn, connectthe problems of electrical engineering and ed with the defendant for 28 years, testified wiring and of the conduct of electricity of 2,300 voltage such as this was, and he testified that it was "practicable" to provide insulation for wires carrying that high voltage so as to prevent the escape of the electric current while such insulated wire was ly-tified that, if the boom ran into the wire it ing on the ground, but if the wire was broken there would be danger at the exposed end or at any broken place. Where there is a bare place, one would get hurt, but, "if you take hold where it is insulated, you ought

"Q. The insulation came off; where was it? A. From the edges of his hand here and fell on the ground, and he [Franka] took the wire over with his stick and dragged that wire out of his hands, and the insulation on it came off with it.

"Q. What was the appearance of that insulation that came off with it, in his hands? A.

Kinda black and charred and burned."

that there were six or eight places from 2 to 10 inches in length along the wire where it burned being in contact with the ground. These burned places showed on the ground where it was burned black. He further tes

would break it, and that the end of the wire was broken square off, out when asked if he had examined it with a sufficient degree of care to enable him to indicate the cause of the breaking of the wire, he said,

(248 S.W.)

and handled the boom to the north," on being called upon to explain such testimony, the witness became evasive, and finally said, “I don't remember." Later on he admitted that questions and answers were asked of and given by him as follows:

"No; I did not examine it." And he fur- many other things, he had said, "I want to ther said the breaking would not have any-say that I never got close to the north end thing to do with releasing the current at any other point except the point where the insulation was broken. While the evidence of one witness seemed to say the same wire was put back up, yet manifestly it was not, for the other witnesses clearly show that defendant's lineman climbed the pole from which it was hanging and cut it off, and that at least a section of it was thrown on the truck and carried away. No one testified how long the wire had been up and in use and no one testified as to any inspection of it.

[2] So that, upon a consideration of all the evidence bearing upon the condition of the insulation before the wire fell, we come to the same conclusion we did at the former hearing, namely, that we are not justified in saying that, conclusively, there was no negligence on the part of defendant in maintaining this wire with poor insulation at the point it did, where it might fall or be caused to fall and do injury. It will not do to say that, because the particular concatenation of events leading to Hollis' death could not have been foreseen or anticipated, there is no liability. If the result reasonably and naturally brought about could have been foreseen, liability follows, even though the precise way in which it actually comes to pass may not have been anticipated.

"Q. No; you never got close to the end and handled the boom to the north, but you don't tell this jury now that you did not move this crane down there many times with that boom to the north? A. No, sir.

"Q. You never moved north with the boom pointing north? A. Not anyways near the end. "Q. I know, but you have operated it north on that track, not up against the wires, with the boom pointing northwest or northeast, haven't you? A. Yes, sir."

The witness also admitted that questions were asked of him and answered as followss:

ask you if what you told Hollis was not this, "Q. And now, to refresh your memory, I will that you must never run clear up north with this boom pointing north? A. I can't remember just what I told him.

"Q. Yes; again to refresh your memory, I will ask you if you didn't tell him to never run with his boom north clear up to the wires because it was dangerous? A. I instructed him to never run his boom to the north when it is down, anywheres near down to the north end. "Q. Yes; that is what you told him? A. Yes, sir."

In view of the foregoing, we think the evidence at this last trial leaves the case, as to the question of deceased's contributory negligence in moving the crane or steam shovel north with the boom pointing north, still with the jury, as it was at the first trial, and that what we said in paragraph 5 of the former opinion in 224 S. W. 163 (204 Mo. App. 309), is equally applicable here.

[4, 5] Likewise there is no difference in the evidence at this trial affecting the question of deceased's contributory negligence in picking up the wire. What is said in paragraph 7 of the former opinion on page 164 of 224 S. W. (204 Mo. App. 311) is still applicable. The same is true as to the question of Hollis being within the scope of his employment in picking up the wire. The evidence this time is stronger than before, since it shows that he cleared the tracks away, gave orders to the men, and threw switches to let cars

[3] With reference to the alleged negligence of deceased in moving the steam shovel north with the boom pointing north, the evidence still leaves it as it was before, a question for the jury. Wilson at first testified he heard Blocker, the fuel foreman, tell Hollis when he first came to work there in March "to never run down to the north end there with the boom turned north," but said afterward that Blocker told him "whenever he was going north to always keep the boom to the south; to not go north with the boom pointed north." Blocker, when first testifying, said, "I told him to always turn his boom to the south, as the wires were dangerous in operating to the north; that in swinging his boom around he might accidentally get into the wire." Defendant then asked him where he was instructed to place his boom "in moving the crane [steam shovel] from the south end to the north end of the track," and witness said the boom should be placed directly south. On cross-examina-into and out of the yard. Defendant's own tion he was asked whether, in such instructions, he had reference to operating the shovel "to move it up and down the track" or to [6] Complaint is made that error is conoperating the boom "after the crane had tained in plaintiff's main instruction. It is been brought to a standstill in a position very long, but we see no way to avoid setting to move coal," and his answer was, "Instruct-it out in full if the point made is to be cleared him never to work this boom pointing ly discussed. It is as follows: north." But when his attention was called to his testimony at the former trial as to what he told Hollis and how he himself op erated the steam shovel, wherein, among

witnesses say he was foreman during the working hours of his shift.

"The jury are instructed, if you believe and find from the evidence that the wire referred to in the evidence was maintained by the defendant along the south side of Guinotte avenue at