This case was tried under an amended petition filed on February 20, 1923.
(1) It alleges that defendant is a corporation engaged in distributing electrical current in Kansas City, Missouri; that in the prosecution of its business, it erected, owned and maintained wooden poles in said city for the purpose of carrying wires used to conduct said electrical current about said city, and more particularly a pole used for said purpose, erected and maintained on the east side of Oak Street, between Third and Fourth streets, in said city; that at all of said times plaintiff was in the employ of defendant as a lineman; that on or about April 3, 1920, while in the pursuit of his employment, he was ordered and directed by defendant to climb said pole; that while so climbing the same, and using one of the iron steps driven and placed in and maintained on said pole by defendant for the use and convenience of plaintiff and other workmen in climbing said pole, said step, which was old and rusty and not driven or placed far enough into said pole to maintain or bear the weight of plaintiff, broke and caused him to fall and sustain the injuries complained of. It is charged that defendant negligently caused said step to be driven and placed in said *Page 375 pole not far enough to make it reasonably safe and secure from breaking under a strain, which the defendant knew, or by the exercise of ordinary care would have known that it would be put to by linemen in its employ in using said step to climb said pole; that defendant knew, or should have known, that for said reason it was not safe and secure, and that if it should break would cause the lineman to fall; that while using said step on or about the above date it broke, because of said negligence, and caused him to fall and sustain the injuries complained of herein.
(2) It further alleges, in substance, that appellant, with knowledge of the condition of said step, was guilty of negligence in failing to inform respondent of its condition.
(3) It charges, that said pole step was old, worn, rusty and of insufficient strength for the use of linemen; that defendant knew, or should have known, of its condition, in time before plaintiff's injury to have replaced same with a suitable step, or to have warned plaintiff of its unsafe condition.
(4) It alleges that appellant was negligent in respect to foregoing matters, and that plaintiff was injured by reason of said negligence.
(5) It alleges that appellant was guilty of negligence, which caused plaintiff's injury, in directing him to climb said pole, when it knew, or ought to have known, that said pole step was unsafe, etc.
The petition sets out the injuries complained of, which will be considered, if necessary, in the opinion.
The answer to said amended petition admits the incorporation of defendant, denies every other allegation in said petition, pleads assumption of risk and contributory negligence on the part of plaintiff in failing to observe and test the pole step in question.
The reply contains a denial of the new matter pleaded in said answer.
George Welday, a resident of Kansas City, Kansas, testified in behalf of respondent, by deposition, that on *Page 376 April 3, 1920, he was employed by this appellant in Kansas City, Missouri, and knew the plaintiff, William Kramer; that he was present when plaintiff was injured, at Fourth and Oak streets, on above date; that he and plaintiff, with other members of the gang, went there to repair an arc wire that was broken down; that they looked over the job and concluded that they needed a span wire to splice the one on the pole; that he climbed the first pole north of Fourth Street on Oak Street, where Kramer fell; that Kramer followed him up the pole; that there were two arms on the pole; that when he (witness) got to the bottom arm he stopped, and plaintiff was right below him; that plaintiff stopped, and was told by witness to wait a minute; that he (witness) went on up through the bottom wires on the bottom arm to the top arm, and put his safety just below the top arm; that plaintiff waited there until witness got set; that he then stepped around to the south side of the pole to come up on that side and, as he placed his foot on a step, it gave way with him; that said pole is about fifty feet above the ground, and was a wooden pole; that it was equipped with iron steps, which commenced about twelve feet from the ground; that these steps were about eighteen inches apart on each side of the pole, north and south; that it was snowing, and there was snow on the pole and steps; that they were the regulation iron pole steps; that when Kramer started up, after the conversation with witness, he used the steps; that he was on the south side of the pole when the step gave way with him; that this step was possibly six feet from the bottom cross-arm; that he (plaintiff) put his left foot on the step that gave way; that witness at this time was at the top cross-arm, waiting for plaintiff, and was looking south; that he saw plaintiff put his foot on the step, and saw the latter give away with him; that plaintiff grabbed at the pole, but missed it and fell about ten feet, when he caught a broken wire hanging down from the top cross-arm; that when he got his full weight on it, the wire broke at the insulator and plaintiff fell to *Page 377 the pavement; that plaintiff was then carried away in an ambulance; that he saw the step which broke with Kramer, lying there in the snow on the street, about seven feet from the pole; that the snow was probably an inch and a half or two inches deep; that they did not complete the work on the day of the accident; that he saw the pole two days thereafter, and examined it; that he climbed the pole up to where the iron step had broken off, and looked at the place; that part of the broken pole-step was in the pole, like it had been driven in; that the piece in there was flush with the pole; that is, it was even with the outside of the pole; that the pole seemed to be solid, and there was no depression around the piece of step that was still in the pole.
On cross-examination witness testified in substance that these were regulation iron pole steps; that they were in use by telephone companies and all companies that have poles use steps like these; that he and Kramer were there about ten minutes before the accident; and that both he and Kramer had on their climbers; that there was snow on the ground and the temperature was freezing at the time of the accident; that he (plaintiff) was using his climbers, and stepped on to the step which broke and let him fall to the ground.
On re-examination witness again testified that the break appeared to him as being flush with the pole.
Jess Stinson, a witness for plaintiff, found the broken step about six or eight feet from the pole where plaintiff fell, identified the same and it was marked as plaintiff's Exhibit 1. Witness measured Exhibit 1 and testified that it was 6¼ inches from the inside of the flange of said step to the point where it was broken off; that from the outside of the flange to the point where the step was broken off, it was a fraction over 6¾ inches; that he had been a lineman for about eighteen years, and continued as such until 1917 when he was hurt. Over the objection of defendant, witness was permitted to testify that it was customary to measure the distance that a step should be left outside of the pole by a hand *Page 378 axe about 4½ inches wide. He was shown the balance of the step, marked Exhibit 2, and identified same as part of Exhibit 1.
J.R. Black, who was a lineman of thirty years' experience, testified, in substance, that he recalled the injury sustained by plaintiff on April 3, 1920; that on April 4th, following the accident, he went where it occurred, with Jess Stinson; that they found the broken step marked as plaintiff's Exhibit 1; that it had been worn, was rusty and had been in service a long time; that the condition of the end where it broke looked like it had been eaten up by rust; that it was smaller than when it was first put into the pole. Witness testified that he had observed the steps of different companies for whom he had worked; that on or about April 3, 1920, and prior thereto, in Kansas City, Missouri, and vicinity, there was a custom among linemen, persons and corporations, erecting steps and poles with reference to the distance, that the steps of similar material, size and character as the step in controversy, marked Exhibit 1, were driven into the pole, which was the size of a hand axe blade about 4½ inches in width.
On cross-examination, witness testified that this was the same type of steps that was in general use.
On re-examination he testified that Exhibit 2, which was part of the broken step taken out of the pole, was worn and rusty on the end; that this part of the step is just a fraction over two inches in length.
The plaintiff here offered in evidence, without objection, both exhibits, 1 and 2, showing the entire broken step.
Erastus Cooper testified, for plaintiff, substantially as follows: That he had been a lineman about twenty-five years in Kansas City, Missouri, and other places; that he had worked as lineman in fifteen or sixteen states and in Canada; that he was acquainted with the pole from which Kramer fell; that the steps on said pole are driven on the north and south sides; that he measured the distance from where the step went into the pole to *Page 379 the ground, and found the distance to be thirty-two feet and ten inches; that during his experience as lineman, he has come in contact with pole steps of the character, make and size of which Exhibit 1 is a piece; that he has driven this kind of steps into poles, in Kansas City and vicinity; that he had seen other steps, which he did not drive, of this same type, size and material in poles, in Kansas City; that there was a regulation distance at which they drove these steps into poles; that the hand axe blade, which they generally used in this kind of work, was about four or four and a quarter inches. Witness placed exhibits one and two together, and gave it as his opinion that the step was bigger on the end than where it broke. He also testified that where the step broke it was worn down by rust.
On cross-examination he testified that he examined the pole that morning, and went up it; that he worked for defendant in 1917 and 1919. Exhibit 11 was shown witness by counsel for defendant, and he was asked if that was the kind of hand axe they used in Kansas City. He answered in the negative, and said that Exhibit 11 is a heavier hand axe than the one he formerly used; that the blade of Exhibit 11 was too long to measure with; that the hand axe which was formerly used was of the same shape, but not so heavy; that the blade was not so long. He further testified that he could not answer whether the broken piece of step indicated rust.
On re-examination, witness testified, that there was not enough of this step out of the pole to be measured by the broad hand axe.
Wm. Kramer, the plaintiff, testified, in substance, that he could not recall any of the facts relating to what occurred at the time and place of his accident, but his deposition taken on May 8, 1922, was offered in evidence by defendant, and will be referred to later.
The plaintiff rested and defendant's demurrer to his evidence was overruled.
The testimony of defendant tends to show that the pole where the step was driven in was solid, and not decayed *Page 380 or rotten; that the broken part was in the pole so taut that it required a good deal of work to remove it; that the piece of step was in the pole just like it was driven there and was straight in; the step broke inside the pole from about one-half to three-quarters of an inch; that it was a standard iron step; that both pieces of the step measured nine inches from end to end, and a little less than eight and one-half inches from inside the flange of the step to the end of same; that the broken piece of step which remained in the pole measured two and one-eighth inches; that the pole where the step in controversy entered the pole, as shown by the line of corrosion on it, and as measured by the witnesses, was about one-half inch from the broken end to over an inch up on said Exhibit 1; that the step broke inside the pole, and that there was about three inches of the step inside the pole; that it was about 5½ inches from the inside of the flange to the side of the pole; that measurements of steps on poles belonging to the Light Company, Home Telephone Company and Bell Telephone Company, doing business in Kansas City, Missouri, indicated that the distance between the flange and pole varied from five to six inches, said measurements being taken of the steps from the inside of the flange to the side of the pole.
The plaintiff offered no evidence tending to show that the step in controversy, composed of Exhibits 1 and 2, when driven into the pole, was insufficient when placed there to sustain the weight of a man as large or larger than plaintiff. On the other hand, the undisputed testimony of Dr. Roy Cross, a chemist of eighteen years experience, in Kansas City, Missouri, who was engaged in maintaining testing laboratories, and was familiar with metalic substances, as well as the stresses and strains on metals, after examining Exhibits 1 and 2, which constituted the step in controversy, gave it as his opinion that the broken step was three-eighths of an inch in diameter across the broken space; that at the point where it was three-eighths of an inch in diameter, and considering the kind of material said step was made of, *Page 381 unless there was a hidden defect in the metal itself, it would stand a direct slow pull of seven thousand pounds without breaking; that from an outside visible appearance of the step, at its smallest point, it was perfectly capable of holding a man of two hundred pounds or more; that the above is true if the man's weight be placed at the outside point of the step on the flange. He further testified that an examination of Exhibits 1 and 2 does not indicate that the step was unsafe.
The evidence of defendant tends to show that the ends of the step at the break were not rusty but, on the contrary, indicated a clean, new break; that the distance from the pole to the flange, as measured by defendant's hand axe in use on its line, was five and three-quarters inches.
The defendant offered in evidence Rule Fourteen, applicable to linemen on its system, which reads as follows:
"Do not climb poles without first testing them carefully, satisfying yourself that they are safe to climb. Never climb poles, pole tops, both on trolly and wood poles, ladders, scaffolds, trees, cross-arms or any other elevated structure without first assuring yourself that the above mentioned will hold your weight."
Defendant offered testimony tending to show that said Rule 14 was observed by employees, and its requirements complied with; that plaintiff, at the time of his injury, paid no attention to the steps on said pole and made no examination or test of the step in controversy.
The jury returned a verdict in favor of plaintiff for $35,000. Motions for a new trial and in arrest of judgment were filed. The court required plaintiff to remit $15,000 of said verdict, and left the judgment standing at $20,000. Thereupon the motions for a new trial and in arrest of judgment were overruled. The case was appealed by defendant in due form to this court.
The instructions, rulings of the court and such other matters as may be deemed important, will be considered in the opinion. *Page 382
I. Appellant charges the court with error in overruling its motion to require plaintiff to make his petition more definite and certain. Said motion asks:
"That the plaintiff be required in his petition where he states, `caused said step to be driven and placed in said pole not far enough to make it reasonably safe andMotion to secure from breaking,' to state what distance andMake Definite. to what extent said step should have been driven into said pole, and to what distance and to what extent said step was driven into said pole."
This motion was overruled by the court, and as defendant answered and went to trial, respondent claims, that it waived its right to be heard in this court on said motion.
There has been considerable controversy from time to time in this State as to whether the defendant waived its right to be heard here, on the motion aforesaid. We are of the opinion that the weight of authority is with respondent as to his contention in respect to this matter. [Cullen v. Atchison County, 268 S.W. l.c. 95; Reynolds v. Davis, 260 S.W. l.c. 996; Wilson Company v. Hartford Fire Ins. Co., 300 Mo. l.c. 38-9; Ford v. Rock Island Ry. Co., 280 Mo. l.c. 207; Crowl v. Am. Linseed Co., 255 Mo. l.c. 328; Burnett v. Hudson, 228 S.W. l.c. 463; Lewis v. Barnes, 220 S.W. 487; Sperry v. Hurd, 267 Mo. l.c. 639 and cases cited.]
II. The defendant, however, at the commencement of the trial, interposed the following objection:
"The defendant objects to the introduction of any evidence, for the reason that the petition wholly fails to state a cause of action against the defendant, and nowhere chargesOral actionable negligence, and is so indefinite andDemurrer. uncertain that it does not comply with the provisions of the law requiring a plain and concise statement of facts without unnecessary repetition." *Page 383
This objection was overruled and an exception taken.
Section 1220, Revised Statutes 1919, provides that the petition shall contain "a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition."
In the leading case of Pier v. Heinrichoffen, 52 Mo. 336, Judge EWING, speaking for this court, in which all the members thereof concurred, said: "Facts, and not evidence, nor conclusions of law, must be distinctly stated. Every fact, which the plaintiff must prove to maintain his suit, is constitutive in the sense of the Code, and must be alleged."
In paragraph three of the amended petition, plaintiff sought to recover, under the following allegation:
"That the defendant negligently caused said step to be driven and placed in said pole not far enough to make it reasonably safe and secure from breaking under a strain; . . . that while he was so using said step on or about the said date it broke with him because of the said negligence of the defendant and caused him to fall and be injured."
The above charge, that defendant "negligently caused said step to be driven and placed in said pole not far enough to make it reasonably safe" is but the statement of a legal conclusion, and did not tender an issue of fact as to what defendant did in respect to said step, nor what plaintiff claimed the defendant should have done that was not done to make said step reasonably safe. If plaintiff intended to charge, that the step should not have been maintained with the distance between the pole and the inside of the flange of the step in excess of four and one-half inches, he should have so alleged in the petition, and charged defendant with negligence in maintaining said step at a greater length than 4½ inches; and alleged that by reason thereof, the step broke and caused plaintiff to fall, etc. In order that plaintiff might recover, on account of defendant's alleged negligence, it would be necessary to show that it maintained said step at a greater length than 4½ inches. *Page 384 If, therefore, it was necessary for plaintiff to prove the above fact, before a recovery could be had on this issue, then said fact was constitutive in the sense of the Code, and should have been pleaded in order to state a cause of action. A legal conclusion of the above character tenders no issue of fact, and may be attacked collaterally at any stage of the proceeding, without resorting to a motion to make it more definite and certain. [Sec. 1220, R.S. 1919; Lewis v. James McMahon Co., 271 S.W. l.c. 783 and cases cited; State ex rel. Home Sav. Ins. v. Lee, 288 Mo. l.c. 698; Musser v. Musser, 281 Mo. l.c. 660-1; State ex rel. v. Brewing Co., 270 Mo. l.c. 108; Darrow v. Briggs, 261 Mo. l.c. 278; Gibson v. Railroad, 225 Mo. l.c. 482 and fol.; Mallinckrodt Chem. Wks. v. Nemnich, 169 Mo. l.c. 397; Sidway v. Mo. Land Livestock Co., 163 Mo. l.c. 372 and fol.]
III. Aside from the foregoing, even if the petition had alleged as a ground of negligence that defendant improperly left the distance between said pole and flange of said step six inches, which rendered it dangerous and unsafe for use, whenPleading it would have been, as plaintiff contends, only 4½and Proof. inches, it would still be necessary, in order to sustain a recovery on this branch of the case, that the petition should allege, and the evidence show, that plaintiff placed his foot on that part of the step outside of the 4½ inches, claimed to be a proper distance. The petition, however, makes no such averment, nor is there any evidence in the record tending to show that plaintiff was thus injured. He was an experienced, first-class lineman, and was required by the rules of his company, in the performance of his work, to examine, at least that part of said step which was open to observation, and in plain view, before stepping upon it. He testified in his deposition, that he paid no attention to the step. The case was therefore submitted to the jury upon pure speculation and conjecture, in respect to said step extending too far out between the pole and flange of same. The burden *Page 385 of proof was upon plaintiff to show, by substantial testimony that defendant's negligence in respect to above issue, caused the injuries complained of. This does not mean that a cause of action can be sustained upon either speculation or conjecture. [State v. Buckley, 274 S.W. 74; State v. Tallo, 308 Mo. 584; State v. Goodson, 299 Mo. 321; State v. Bowman, 294 Mo. 245; State v. Singleton, 294 Mo. 346; State v. Hollis, 284 Mo. 627; State v. Morney, 196 Mo. l.c. 49; Marlowe v. Kilgen, 252 S.W. l.c. 426 and cases cited; Pate v. Dumbauld, 298 Mo. 435; Perkins v. Wilcox,294 Mo. 700; Van Bibber v. Swift Co., 286 Mo. 317; Warner v. Ry. Co., 178 Mo. 125.]
IV. The plaintiff not only failed to state a good cause of action in his petition with respect to the alleged improper placement of said step, but the evidence produced at the trial signally failed to make out a case on this subject.Insufficient The plaintiff examined several linemen ofEvidence. experience, who testified, over defendant's objection, with reference to a custom or regulation recognized in Kansas City, Missouri, among linemen, persons and corporations with reference to the distance that should be observed between the pole and flange of the step. As an illustration, one of said witnesses was asked, over the proper objection of defendant, the following:
"Q. Mr. Stinson, I will ask you whether or not on or about April 3rd, 1920, and prior thereto, in Kansas City, Missouri, and vicinity, there was a custom among linemen and persons and corporations erecting steps and poles with reference to the distance that the steps of the same material, size and character as this step, Exhibit 1, was driven in the pole?"
The defendant objected to this question, because there is no custom pleaded in the petition nor an allegation of any violation of any alleged custom. This objection was overruled, and an exception saved. The witness answered that there was such a custom, and that the distance from the pole to the flange of the step was *Page 386 measured by the blade of a hand axe, which would place said distance at 4½ inches.
Now let it be conceded that 4½ inches was a safe and proper distance between the pole and the inside of the flange of said step, is this any evidence of negligence on the part of defendant in maintaining said distance at five inches, 5¾ or even six inches? The defendant introduced a number of witnesses, who testified that the steps of various plants in Kansas City, Missouri, were maintained at a distance of 5, 5½ and 5¾ inches. An expert of long standing in dealing with this subject testified, without objection and without contradiction, that the step in controversy, when installed in the pole, was capable of standing a direct slow pull of seven thousand pounds without breaking; that from an outside visible appearance of the step at its smallest point, it was perfectly capable of holding a man of two hundred pounds or more, and this would be true if the man's weight were at the outside point of the step or on the flange. The plaintiff offered no countervailing testimony on this subject.
Without pleading a violation of any custom, without showing that the distance at which defendant maintained this step between the flange of same and the pole rendered it unsafe, and without any substantial evidence tending to establish negligence on this branch of the case, the jury were given a roaming commission, under plaintiff's instructions numbered 1-P and 2-P, given by the court over defendant's objection, to find for plaintiff on the foregoing issues, which were neither alleged in the petition nor shown by the testimony. Both of said instructions were clearly erroneous for the reasons aforesaid, and should not have been given to the jury in that form.
V. The fifth paragraph of the petition reads as follows:
"Plaintiff states that the defendant negligently maintained said step on and in said pole when said step was old, worn and rusty and because thereof of insufficient *Page 387 strength for the purpose for which it was maintained by the defendant; plaintiff states that the defendant knewPleading: of said condition of said step or by the exercise ofLatent ordinary care would have so known and that becauseDefects: thereof it might and would break with plaintiff andCorrosion. cause him to fall and be injured, within a reasonable time prior to plaintiff's fall, to have thereafter by the exercise of ordinary care removed the said step or replaced it with a sufficient one or warned plaintiff not to so use said step; but that the defendant negligently failed so to do. Plaintiff states that the said negligence of the defendant caused plaintiff's fall herein complained of and his consequent injuries."
We are of the opinion that the petition sufficiently charges defendant with negligence in respect to the matters stated therein.
It is contended by appellant that the testimony offered at the trial was insufficient to take the case to the jury on the above issue.
It may be stated, in general terms, that it was the duty of defendant to use such care and caution in inspecting its poles and steps as an ordinarily careful and competent person in that line of employment would use in performing this duty. On the other hand, it was the duty of respondent, under the law, as well as under the rules and requirements of defendant, to exercise reasonable care for his own protection in passing over said step, and to guard against dangers, if any existed, which were obvious or open to observation when using the same.
After hearing the oral arguments, reading the testimony set out in the record, and considering the exhibits left here for our inspection, we have reached the conclusion that this is an exceedingly close case on the merits. There is, of course, no question about the step breaking with plaintiff and causing him to fall to the ground below, but as to whether said step broke on account of latent defects therein, not open to observation, and which could not be ascertained by reasonable inspection, or *Page 388 whether it broke from long use, rust and corrosion, under such circumstances as reasonable inspection would have disclosed to defendant, are questions not free from doubt. The plaintiff produced some evidence tending to show that said step broke at a place flush with the pole, and that outside of the pole there were indications of rust, corrosion and a worn condition of the step, from which the jury might have inferred that said step broke, by reason of the above conditions, rather than from hidden defects which could not have been discovered by reasonable inspection. We accordingly hold, that there was some substantial evidence offered by plaintiff tending to prove the foregoing charge of negligence and which presented a case for the consideration of the jury.
VI. The verdict in this case was for the extravagant sum of $35,000. The court required a remittitur of $15,000 and affirmed the judgment for $20,000. It is doubtless true that plaintiff did receive some severe injuries, but on aExcessive careful examination of the testimony in respect toVerdict. this matter, we think that, if plaintiff was entitled to recover at all, the judgment should not have been permitted to stand for more than $15,000.
VII. It is contended by defendant that plaintiff should have been non-suited for failing to inspect the step at the time and place of accident, as required by Rule 14; and that he was guilty of contributory negligence in failing to do so. The respondent was not employed as an inspector of appellant'sContributory appliances used by him, but was only required toNegligence. take notice and guard against those dangers which were obvious or open to observation. The evidence is undisputed that the weather was cold, that it was snowing and this step was covered with snow. It was a question for the jury, as to whether plaintiff exercised such care as an ordinarily prudent person should have exercised under such circumstances. *Page 389
VIII. On a retrial of the case, the plaintiff should be required, as provided in Section 1220, Revised Statutes 1919, to amend his petition so as to make it contain a plainAmended and concise statement of the facts constituting hisPetition. cause of action, without unnecessary repetition.
On account of the errors heretofore pointed out, the cause is reversed and remanded, to be proceeded with in accordance with the views heretofore expressed. Higbee, C., concurs.