the place referred to in the evidence, and that you find that in operating such crane and breaksaid wire contained a deadly current of electric-ing said wire he failed to exercise such care ity, then you are instructed that it was the as would ordinarily be exercised by ordinarily duty of the defendant to exercise the highest careful and prudent persons under the same or degree of care to provide and maintain upon similar circumstances." said wire insulation sufficient to prevent the escape of the current from said wire into a perWe think the instruction is erroneous. Alson coming in contact with the insulation portion of said wire if said wire fell through any though it apparently starts out with the wire cause which the defendant might reasonably an-containing a deadly current of electricity and ticipate as likely to occur in the natural course maintained before it fell, yet, without reof events; and you are further instructed that gard to how or why it fell, the instruction the escape of the current, if so, under such goes on to state an apparent case of liability circumstances, through the insulated portion of commencing with the wire on the ground, the wire into a person rightfully at the place, and the rest of defendant's negligence inwould be proof that the insulation was insuffivolves merely its insulated condition after it cient. is on the ground, no matter whether the thing which caused the wire to fall was also the cause of the insulation being then defective; i. e., no matter whether the place where deceased took hold of the wire was at the end of the wire where the boom's touching the wire seared off the insulation at that point, or whether the insulation, at places along the wire or where deceased did take hold of it, was defective and insufficient because old and rotten or because it was rendered defective by being "crackled," broken, made "open" or "porous" under the stretch and strain of its being broken by the boom, and not merely touched by it and burned in two. Defendant elicited evidence from which the jury could say that deceased picked up the wire with his hand at the end where the insulation was exposed by the breaking of the wire, and there was also evidence that, even if deceased picked up the wire with his hands only 14 inches away from the end, the insulation was bad because the boom broke it and rendered it so as to allow the electricity to escape, and also that, where insulation was lacking at other places, it was because it had burned off, and not because it was bad in the first place. The petition is not based on negligence in maintaining an electric wire close to the coal yard where it was likely to be broken regardless of its insulation. The gist of the negligence is the long-continued maintenance of the wire without sufficient insulation. We do not think our former opinion gives respondent any ground for thinking that it authorized a case of liability beginning with the wire broken and on the ground.

"So if you believe and find from the evidence that on or about the 10th day of August, 1917, Charles F. Hollis was in the employ of the defendant and in charge of the coal-shoveling machine or clam shell and the coal yard referred to in the evidence, and was foreman thereof, and that it was his duty to look after said yards and the work therein and keep the tracks and switches clean and to remove objects therefrom in furtherance of the business of operating said coal yard, if so, and that at the time he lost his life he was in the performance of his duties, if so, and if you further believe and find from the evidence that the wire referred to in the evidence had broken and fallen through any cause which the defendant could have reasonably anticipated as likely to occur in the natural course of events, and was lying so that it extended upon the west prong of the Y referred to in the evidence and obstructed its use and out into Guinotte avenue and upon the sidewalk portion of the street, and that said wire was charged with a deadly current of electricity, and if you further believe and find from the evidence that the defendant had provided and was maintaining on said wire insulation which was insufficient to prevent the escape of the current through the insulation into a person coming in contact with an insulated portion of said wire, if so, and that in so providing and maintaining the insulation on said wire defendant failed to perform the duty herein required of it, and if you further believe and find from the evidence that Charles F. Hollis went to said wire at the place referred to in the evidence and took hold of said wire for the purpose of removing it from the places where it lay over said switch and said street, if you find such to be the facts, and that he took hold of it at a place where it was insulated, and that when he did do so the current escaped through the insulation into him and killed him, then you will find for the Other points are made, but we think the plaintiff, unless you believe and find from the above sufficiently disposes of the case as it evidence that in picking up said wire Charles is now pleaded and presented. F. Hollis failed to exercise for his own safety The judgment is reversed, and the cause such care as would ordinarily be exercised by ordinarily careful and prudent persons under is remanded. the same or similar circumstances, or unless All concur.

(248 S.W.)

tion with the construction of a mill in North Kansas City, Mo. The construction of the building had progressed to the fourth floor. About two weeks prior to that time defendant had erected on said floor what is known as a gin pole derrick. The derrick was erect289(19)-Contribu-ed under the supervision of defendant's fore

Appeal from Circuit Court, Jackson Coun- the nature of a demurrer to the evidence ty; Nelson E. Johnson, Judge.

R. D. Groves and Miller, Camack, Winger & Reeder, all of Kansas City, for appellant. Clif Langsdale, of Kansas City, for re-occasions while it was on the fourth floor he spondent.

helped to tighten the guy rope which later broke. Plaintiff's witnesses testified that the BLAND, J. This is an action for person- condition of the rope could be seen at a al injuries. Plaintiff recovered a verdict and glance; that its worn condition could have judgment in the sum of $6,000, and defend- been seen from the ground; that the condition ant has appealed. The facts show that on of the rope could have been seen 25 or 30 feet December 11, 1920, plaintiff was employed by away. Plaintiff's witness, Sorrell, testified defendant as a building laborer in connec- that two or three days before the rope broke For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

he was helping to tighten it and at that time he noticed its condition and told the foreman that the rope was so weak that he did not want to work around the gin pole. His duty at that time was to push the boom around. The day before the accident he quit his work and was carrying away lumber from the boom, as was plaintiff at the time it fell. He testified that he changed his work because he was afraid of the rope, that if it broke the derrick would fall.

so reckless that no prudent man would have done it. To say so we should have to hold no other inference was possible, although all the men who worked on the job, including the expert millwright, were not deterred from further use of the rope. Plaintiff might well have had broken once; or that, if it broke again, no believed the rope would hold, even though it one would be injured, as no one was injured the first time. The question of plaintiff's contributory negligence was, at best, one for the jury." Reeder v. Lime Co., 129 Mo. App. 107, 116, 117, 107 S. W. 1016, 1019.

The mere knowledge of the dangerous condition of the rope on the part of plaintiff is not sufficient for the court to say that he was guilty of contributory negligence as a mat

and obvious as to threaten immediate injury.
McDonald v. Contral Ill. Const. Co., 196 Mo.
App. 57, 190 S. W. 633; Maupin v. Southern
Surety Co., 205 Mo. App. 81, 220 S. W. 20, 21;
State ex rel. v. Reynolds (Mo. Sup.) 200 S.
W. 57; O'Hara v. Lamb Const. Co., 200 Mo.
App. 292, 206 S. W. 253; O'Mellia v. Kansas
City, etc., Ry. Co., 115 Mo. 205, 21 S. W. 503.

Plaintiff testified: That at the time he helped tighten the rope that broke he looked at the rope and saw that it was old, had a knot in it, and that he knew it was old because he had looked at it and had hold of it. He said to his fellow laborers, "I believe this rope is an old looking rope to be pulling suchter of law, unless the danger was so glaring a load." That the rope looked old to him. "It looked like an awful poor rope to mesuch loads as they were hoisting with it." "Q. Looked like it would not carry a load? A. Well, it had been carrying them, and then it broke, or come undone, I don't know how it come undone." We think that it can be inferred from this testimony that plaintiff knew that if it broke the derrick would fall. [1] We do not think that, under the testimony, we would be justified in saying that as a matter of law plaintiff was guilty of contributory negligence. He had been working about a year as a building laborer. Prior to that time he had been a farmer. He had no supervision or control over the work, no duty to inspect it, no right to determine the manner of doing the work, was not his own boss, but was engaged in doing a mere detail of the work under the immediate control, orders, and direction of defendant's foreman, who had complete charge and control of the whole work. The evidence shows that there were six men besides plaintiff who worked the derrick, although they knew of the deupon the job, excluding the labor foreman fective rope. We think the question of conand the carpenter foreman, and that the der-tributory negligence in this case was one for rick was erected under the immediate super- the jury. We have examined defendant's vision of one of defendant's foremen and that citations and find them to be from cases none of these men except Sorrell, although where the servant was in full control of the they knew of the condition of the rope, were situation, knew of the danger and apprecideterred from working under the derrick, ated the imminence of it. and, as a matter of fact, Sorrell was not so deterred, because he was doing the same work that plaintiff was at the time the der-admitting testimony that defendant's forerick fell. In a somewhat similar case the St. Louis Court of Appeals said:

"This issue was fairly put to the jury in several instructions, of which defendant's counsel disclaim criticism, as they do of all the instructions. Hence, unless we can say the only inference from the facts in proof is that the hazard of again using the rope after it had

once broken was so great and apparent that no person of ordinary prudence would have incurred it, we must approve the way the court submitted this issue to the jury. In our opinion a court cannot say as a legal conclusion, that continuing to work with the rope, after it had broken under the strain put on it, was an act

[2] Plaintiff's testimony shows that he knew of the dangerous condition of the rope, but, from the language he used in answer to the questions, it would seem that it was merely his opinion that the rope was too dangerous to be pulling such heavy loads. The jury could say that he had no settled convictions on the point as he finally said, "Well, it had been carrying them (the loads)." It will be borne in mind that plaintiff had a right to rely somewhat upon the superior knowledge of the master, and the evidence shows that his foreman was present and handling the boom at the time it broke. As before stated, not only the foreman but sev

eral other workmen continued to work around

[3] It is insisted that the court erred in

men had been advised of the defective condition of the rope by several workmen who testified for plaintiff. In this connection it is insisted that the allegations of the petition are not broad enough to admit such testimony. The petition alleges that defendant "carelessly and negligently set up, constructed, and maintained said gin pole and said rope, which was old and worn and of insufficient strength for the purpose for which it was used and intended to be used; that the said carelessness and negligence caused the said rope to break and said gin pole to fall and strike plaintiff." We think the evidence was clearly admissible to show the master's

(248 S.W.)

knowledge of the defect. Flynn v. Union | fore closing the deal, the parties not standing Bridge Co., 42 Mo. App. 529, 536; Zimmer- upon an equal footing.

man v. Pryor (Mo. App.) 190 S. W. 26; Hes- 3. Fraud 13(2)-Knowledge of fraud by deter v. Dold Packing Co., 84 Mo. App. 451; fendant unnecessary. Howard v. Mo. Pac. Ry. Co., 173 Mo. 524, 73 S. W. 467; O'Mellia v. K. C., etc., Ry. Co., supra; Glasscock v. Dry Goods Co., 106 Mo. App. 657, 80 S. W. 364.

A representation of value of animals located at a distance where plaintiff could not see them is fraudulent, even though defendant does not know the falsity of the statement.

4. Fraud 44-Petition held based on fraud, and not on guaranty.

The mere fact that a petition to recover damages stated that defendant "guaranteed" the property in question to be worth a certain amount, and, if it was not, that he would turn back to plaintiff consideration given, did not necessarily make plaintiff's cause of action one on guaranty, and not on fraud or deceit, since the so-called guaranty or promise could be tation as to value was not mere assertion of considered as definitely showing that represenopinion.

5. Trial

186-Instruction held not com

ment on evidence.

In a suit for damages for fraud and deceit in exchange of animals for land, an instruction given for plaintiff held not objectionable as a comment on the evidence.

[4] It is last insisted that the verdict is excessive. The facts show that plaintiff's left collar bone, commonly called the clavicle, was broken; that at the time of the trial, which was a little over two years after the injury, there was an overlapping of the bone at the point of fracture of about 1/4 of an inch-one bone "riding on top," the outer end overlapping, and it was very much displaced. This overlapping was about 3 inches from the shoulder. This has caused a shortening of the shoulder and has thrown the shoulder in. The injury has caused the shoulder to droop, a failure to properly function on the part of the left arm, and an encroachment on the large blood vessels of the neck. The shoulder is thrown forward and a change in contour is noticeable. Plaintiff testified that he could not lie on his left side at night; that his left shoulder is "my main shoulder to carry things"; that he cannot carry anything on that shoulder; that when he works There was no prejudice in an instruction his left arm bothers him, and he has nothing assuming as a fact matter conceded. like the strength or grip that he formerly 7. Appeal and error 1033(5)—No complaint had; that he cannot work long with his left of favorable error. arm; that he did not go to work for about 4 months after his injury, after which time he procured several jobs, but was able to work at them only a few days, and was discharged on account of his inability to work. At the time of his injury he was mak-18. Fraud 52-Evidence held admissible. ing about $33 per week. He was 52 years of In an action for damages for fraud and deage. We do not think, under the circum-ceit in the exchange of animals for land, evistances, that the verdict is of such size as to dence as to the inability of plaintiff to find the justify us in interfering with it.

The judgment is affirmed.

All concur.

JOURDAN v. SHEETS. (No. 14610.) (Kansas City Court of Appeals. Missouri. March 5, 1923.)

1. Fraud 41-Petition held to show deceit. A petition for damages on the ground of frand and deceit, in the exchange of a jack and horses for land, held to sufficiently charge misrepresentation as to the animals.

2. Fraud 23-Representation as to value may be fraudulent.

A petition showing a misrepresentation as to value of animals stated a cause of action, where it showed that the animals were a hundred miles away and that plaintiff was not so situated as to be able to go and see them be

6. Trial 192-Court may assume conceded facts.

Defendant in deceit case cannot complain on appeal of an instruction submitting question of value of property in excess of that shown by evidence, any error in that respect being favorable to him.

animals where they were said to be and their final location elsewhere was admissible to show why plaintiff did not offer to rescind sooner.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by Charles J. Jourdan against Robert G. Sheets. Judgment for plaintiff, and defendant appeals. Affirmed.

T. A. Witten, of Kansas City, for appellant.

Ed. E. Aleshire, of Kansas City, and George W. Willis, of Kansas City, for respondent.

TRIMBLE, P. J. Plaintiff, owner of a house and lot in Kansas City, alleged to be worth $2,200, on which there was a mortgage of $800, traded his equity therein for a jack and three mares owned by defendant. Discovering afterwards that the jack was worth

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 248 S.W.-41