ON MOTION FOR A REHEARING.
WOODSON, J.— The principal reason assigned by counsel for a rehearing is, that the judge who wrote the majority opinion in the case misconceived the evidence regarding the removal of an old pole and the substitution of the new one mentioned in the evidence, as authorized by the permits, set out in the statement of the case.
It is contended in this motion that the record does not show that an old pole was removed or that a new one was inserted instead thereof, but that the new pole was erected at a different place, some thirty feet from where any of the old poles had then or formerly stood, and that none of the wires of the various parties mentioned had been attached to the new pole.
Conceding for the sake of the argument only, that said contention is true, which as a matter of fact I do not believe from this record to be true, yet,- the result must be the same as announced'in the opinion heretofore handed down, for the reasons; first, that if the new pole erected was hot placed in the place of the old one authorized to be removed by the permits mentioned, then the new pole which caused the injury was a public nuisance (Cartwright v. Liberty Telephone Co., 205 Mo. 126), which as a matter -of law would render the defendant liable for all injuries which would naturally flow therefrom, regardless of the question of negligence on its part. The law will not permit a party to say that it is true he constructed and maintained a public nuisance which injured another and he is not liable in damages therefor, because the nuisance was *109constructed and maintained even with the highest degree of care and caution.
In such cases the question of negligence does not enter into the merits of the case, for the simple reason that the establishment and maintenance of a public nuisance is a greater breach of the law than .any act of negligence. If that was not true then any person could create or maintain as many public nuisances as he deemed proper, and thereby injure others every day, yet escape all liability by saying that he used the highest degree, or even due care in constructing and maintaining them. In' other words, the construction and maintenance of public nuisances are within and of themselves acts of the most grievous violation of the law, much more so than any ordinary act of negligence. The author of the former is not only liable for all damages that naturally flow therefrom, but he is also subject in many cases to a fine and imprisonment therefor; while in but few cases of negligence is one liable criminally therefor.
This seems to be conceded by all of the authorities without exception, in so far as I can find. Counsel for relator in the case of State ex rel. Excelsior Powder Manufacturing Co. v. Ellison, post, p. 585, the opinion in which was handed down by Court in Banc on July 14, 1914, seems to concede this, to be the law and cites no authority to the contrary, but attempts to escape liability upon the ground that a railway is not a public highway within the meaning of the ordinary public road or highway of the counties and State.
I have made quite an extensive examination of this question, and I have been unable to find a single, authority to the contrary; and upon the contrary, I have been unable to find a single case of this character where the law requires the plaintiff to go further than to plead and prove that' the injury was caused by a public nuisance. I do not mean by this statement to be understood to say that there are not many cases wherein *110both negligence and the nuisance were charged and proven, but what I do mean to say is, that I know of no case where the question has been raised which holds that negligence must be charged and proven in addition to the fact that a public nuisance caused the injury, and I dare say none such exists.
And upon principle and justice no person should be permitted to maintain a public nuisance and then say that he is not liable for the injuries which naturally flow therefrom. This principle of law is so well and universally-recognized it would be a useless waste of time and labor to cite authorities in support thereof.
The second reason why the motion for a rehearing should be denied is: That if the new pole was not erected in lieu of an old .one in pursuance to the permits issued by the city to the defendants, how could the plaintiff know that fact? There is no direct evidence bearing upon that point; but suppose there was, still the new pole was intended to serve the purposes of the old one, and was subjected to the same uses and burdens that it was; and the plaintiff had the same right to use the new that he had to use the old. This is self-evident.
A third ground assigned for a rehearing, which I take to 'be more facetious than serious, is couched in two questions which will be presently quoted, regarding what we stated in relation to the insulation of wires.
The questions, ref erred to are as follows:
“Did the court stop to think that defendant could not put rubber gloves on its wires? That there is no such insulation for wires, because in the wind and weather rubber would not last at all and therefore no such insulated wire can be bought?
Answering those questions — not in the spirit in which they were asked, but in a judicial spirit — I will for myself state, that I did not think of the former question, nor do I agree to the result indicated by the two questions propounded.
*111We proceeded upon the theory that if a hand could be perfectly insulated by rubber gloves; which require great skill and considerable cost to manufacture, then by parity of reasoning a single wire could be' insulated much easier — as much so as one finger of a man could be insulated by one rubber finger of the glove, and with no more than a tithe of the cost proportionately.
And as to the wear suggested by the second question I naturally supposed a wire insulated and hanging upon the cross-arms of the poles, though exposed to the wind’and weather, would certainly last as long as a rubber glove which is equally exposed to wind and weather and also constantly coming in violent contact with the wires, poles, cross-arms, tools and various other instrumentalities used by the “trouble” man in adjusting and making the thousand and one repairs that are necessary to be made upon these great electrical systems of wire overhanging our cities. This is upon the same principle that a pavement will outlast a boot or a shoe, and be not as costly in proportion.
If this is not sound reasoning then my common knowledge, experience and general observation are not worth the paper these words are written upon.
But be this true or false, I am still of the opinion that the grievous injuries sustained by the plaintiff were caused by the grossest character of negligence on the part of the defendant; and that the defendant had a fair and impartial trial; and for that reason the motion for a rehearing should be overruled; and it is so ordered.
All concur except Graves, B'.ond and Bar-is, JJ., who dissent.