1. In an action for assault and battery, an instruction directing the jury to allow exemplary damages, if the act was done maliciously, was erroneous, as such damages were within the discretion of the jury.

2. In an action for injuries inflicted on plaintiff by an assault the court instructed that the jury might take defendant's financial condition into consideration in fixing on a sum, "and the evidence of a transfer of his property to his wife since the bringing of the suit." Held, that the instruction was confusing, since it might be thought to mean that defendant could be punished in an action for assault and battery for the transfer of property to his wife.

3. In an action for injuries inflicted on plaintiff by defendant shooting him it was error to allow evidence of an occasion some time prior to the trouble when defendant showed a witness how quickly he could draw a pistol, there being nothing to connect such act with the difficulty.

Appeal from Circuit Court, Livingston County; J. W. Alexander, Judge.

Action by Augustus M. Johnston against Clark W. Wells. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Sheetz & Sons, B. B. Gill, and L. A. Chapman, for appellant. John H. Taylor, for respondent.

ELLISON, J. This action is for personal injury inflicted on plaintiff by defendant by shooting him in the arm with a pistol on one of the streets of Chillicothe. The verdict was for plaintiff for $500 actual and $300 punitive damages.

It appears that bad feeling existed between the parties, and there was evidence tending to show that each had made threats against the other. Finally, on the day of the difficulty, while defendant was standing on the sidewalk, plaintiff came out of a shop, and saw defendant on the walk. Plaintiff looked at the defendant, when the latter, with an oath, demanded to know why he was looking at him. Plaintiff replied that he had a right to look at him, whereupon defendant attempted to draw a pistol from his hip pocket, but before he could do so plaintiff rushed upon him, push

ing him to the ground. While plaintiff was trying to take the weapon from him he succeeded in firing, the ball striking plaintiff in the arm. As the verdict was for the plaintiff, and as we have concluded that error was committed in the progress of the trial, we have drawn the foregoing statement mostly from the view presented by the plaintiff.

We regard instruction No. 8, in the order set forth in defendant's abstract, as erroneous. It directs the jury to allow exemplary damages if the act was done maliciously, etc. Exemplary damages are allowed as a punishment to the defendant, and whether such punishment will be inflicted in any given case is within the discretion of the jury. It is proper to inform the jury of their province to allow such damages if they see fit to do so, but there should not be a direction given them which, fairly interpreted, withdraws such discretion, and makes the allowance mandatory. Carson v. Smith, 133 Mo. 617, 34 S. W. 855; Callahan v. Ingram. 122 Mo. 355, 26 S. W. 1020, 43 Am. St. Rep. 583; Nicholson v. Rogers, 129 Mo. 136, 31 S. W. 200. The instruction was otherwise defective by reason of an inadvertent omission to state what it was plaintiff did justifying such damages.

It seems that there was evidence tending to show defendant's financial condition and situation in order to enhance the exemplary damages. It also seems that defendant had made a transfer of property to his wife. Instruction 9 (in the order printed by defendant) properly informed the jury that they might take defendant's financial condition into consideration in fixing upon a sum, “and the evidence of a transfer of his property to his wife since the bringing of this suit.” The clause in quotation, connected as it is, might well be thought to mean that defendant could be punished in an action for assault and battery for the transfer of property to his wife. If it was meant that the jury could consider with his other property that which had been voluntarily conveyed to the wife to avoid financial obligations, it should be written so as to express that meaning. As written, it was confusing, at least.

We think it was also error to allow evidence of an occasion "quite a while prior to the trouble" in which defendant showed a witness how quickly he could draw a pistol. Nothing was said to connect such act with the difficulty, or to show that one was in contemplation.

The criticism and objection to other instructions than those noted herein we regard as not well made in view of the whole evidence.

Concerning the question of impropriety of allowance for loss of time, medical attendance, etc., as authorized by instructions. on account of not being pleaded in the petition, we are of the opinion that the allegations were sufficient to justify the instructions,

1. In an action for injuries to a telephone lineman, evidence held to sustain a finding that the proximate cause of plaintiff's injury was the negligence of defendant telephone company in setting a guy pole for the purpose of bracing another pole loaded with telephone wires and keeping them from contact with electric light wires carrying a high voltage of electricity.

2. Where an electric lineman was injured by the negligence of a telephone company in setting a guy pole, defendant was not relieved from liability because of the fact that the defectiveness of the construction only manifested itself after a severe but not unprecedented storm, defendant being bound to make its construction sufficient to stand storms of ordinary or normal severity.

3. Where the parting of electric primary wires carrying a heavy voltage was the direct result of defendant's negligence, and plaintiff, a lineman, was violently shocked and injured, because of such negligence, while at work on a telephone pole, it was no defense that some other person negligently wrapped the ends of the broken wires around the pole, and thereby facilitated the forming of a short circuit on the pole on which plaintiff was working.

4. Where an electric lineman, while working on a telephone pole, treated an electric light wire as charged, and the closing of the circuit by his body coming in contact with the wire was purely accidental and caused by the slipping of his foot, he was not guilty of contributory negligence in failing to test the light wire, or in failing to wear rubber gloves, it appearing that there was no danger in handling live wires when the body was not in a position to connect them with other charged wires or with the ground.

[Ed. Note. For cases in point, see vol. 18, Cent. Dig. Electricity, §§ 7, 10.]

5. Where, in an action for injuries to an electric lineman by the alleged defective setting of a guy pole, the evidence of both parties showed that the position of the top of the pole was the same two months after the accident that it was at the time thereof, it was not error for the court to permit witnesses to testify as to their relative observations of the guy pole made two weeks and two months, respectively, after the accident.

6. In an action for injuries to an electric lineman by the alleged defective construction of a telephone guy pole, causing a heavily charged light wire to separate, evidence relating to the condition of the wires shortly after the accident was admissible.

[Ed. Note. For cases in point, see vol. 18, Cent. Dig. Electricity, § 11.]

7. An instruction defining expert testimony, and charging that such testimony did not tend to prove any fact on which it was based, and that before the jury could give any weight thereto they should find from the evidence that the facts on which it was based were true, and that the jury was not bound by such evidence,

but should consider it in connection with other evidence in the case, was not objectionable as injuriously affecting the evidence of certain of defendant's expert witnesses who testified to facts as well as opinions.

Appeal from Circuit Court, Buchanan County; A. M. Woodson, Judge.

Action by William S. Smith against the Missouri & Kansas Telephone Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Mosman & Ryan, for appellant. W. K. Amick, for respondent.

JOHNSON, J. Action for damages for personal injuries consequent to a fall from the top of a telephone pole where plaintiff, a lineman, was engaged in making certain repairs. Negligence on the part of defendant, it is charged, was the producing cause of the fall. Plaintiff recovered judgment in the sum of $3,000. No complaint is made of an excessive verdict, but defendant asks a reversal because of errors claimed to have been committed during the progress of the trial, first among which was the overruling of its demurrer to the evidence.

The injury occurred September 8, 1903, in the city of St. Joseph. At that time the city was operating its own system of public lighting, generating and using electricity for that purpose. The business of producing and supplying electricity for private use, either as power or for lighting, was conducted by the street railway company. Defendant was operating a telephone exchange. All three corporations used the public streets for their lines of wire, strung upon poles, which carried the power to the various points of use throughout the city. The currents of electricity carried through the streets by the city and railway company being highly potential, the wires through which they flowed were insulated, and in many instances strung upon the same line of poles. Defendant, employing none but currents of low power, used in their transmission bare wires carried upon its own pole lines. The pole from which plaintiff fell was situated on the east side of St. Joseph avenue, at its intersection with Park street. It belonged to the city, but was in a line jointly used by the city and the railway company for the carriage of wires. This line came from the south from where the power was generated, and passed along the east side of St. Joseph avenue to and beyond Broadway street. The wires carried by it with which we are concerned consisted of two used by the railway company in the transmission of currents of electricity for private use, termed in the evidence "primary wires," and one used by the city in feeding its are lamps, called the "city wire." As the negligent act complained of is said to have occurred upon this line at or near Broadway street some six blocks north of the place of injury, it is important, in reviewing the action of the court in overruling the deruur

rer, to understand the details of the situation at that point; and we will select as the focus of observation a certain pole, a unit in this line, located at a point where the highway slightly deflects in its course. This pole is called in the evidence the "railway pole," and, before the accident, carried on the eastern projection of two cross arms the two primary wires and the city wire referred to. On the opposite side of the avenue was situated an important lead in defendant's telephone system, which consisted of a heavy pole line provided with cross-arms and pins sufficient to support and carry 50 wires. Coming from the south to the railway pole, the direction of the avenue was east of north. Shortly before reaching the pole it curved somewhat sharply to the left, until, pointed due north, it proceeded in that direction upon a tangent. The telephone lines, following the course of the street, curved to the left at the point opposite the railway pole.

In order to strengthen the resistance of the telephone pole located in the curve to the strain imposed upon it by the weight and tension of taut wires, defendant set a guy pole about one foot north of the railway pole, and from the top thereof ran a tightly drawn wire across the street to the telephone pole, securely fastened to the tops of both poles, and of sufficient strength to hold the telephone pole in place, provided the guy pole retained its position. This was attempted to be secured by running a tightly drawn wire attached to the top of the guy pole and to an anchor planted in the ground some 25 feet east of the pole, the idea being that with such construction the telephone pole could not incline westward without drawing with it the top of the guy pole, which could not be moved in that direction without the extraction of the buried anchor from its position. The first pole in line south of the railway pole was about 25 feet distant therefrom, and carried on its top a lamp fed by the city wire. There was but one cross-arm attached to this pole, but the "city wire" was looped into the lamp above from the opposite ends of a smaller cross-arm attached to the other at a right angle thereto, thus preserving, in the passage of the wire in and out of the lamp, the line of its course. The position of this wire on the cross-arms was immediately east of the railway and city poles; to the east thereof, at intervals of about 10 inches, were the two primary wires. Up to this point there is no dispute over the facts. The differences all relate to those we are about to detail, and with respect to them we shall adopt plaintiff's version in the consideration of the demurrer.

The guy pole had been in position for something less than two months. It is claimed that while at its base it was in line with the other poles, it was raked to the east when set so that its top was approximately three feet east of its base and cleared the outside primary wire; but owing to the negligent

manner in which it was set, the top had been pulled west and north until the west perpendicular line of the pole was on a line with the pins carrying the intermediate primary wire, with the result that some time shortly preceding the accident the outside primary wire, owing to the great pressure exerted upon it by the guy pole, tore out its fastenings from the cross-arms on the railway and city poles, and was thrown across the city wire upon its individual cross-arm on the city pole, and also across the other primary wire at a point some five feet south of the railway pole. This latter contact resulted in the generation of sufficient heat to melt both primary wires. Their parted ends dropped to the ground, after which the contact between the primary wire and the city wire at the city pole continued. It appears from some of the evidence that the insulation was old and defective on all of these wires. The negligence in the setting of the guy pole appears from the following facts:

The length of the pole was some 35 feet. It was set in the ground about 51⁄2 feet. The anchor, a piece of pole five or six feet long, was buried to a depth of about five feet. It was not placed upon a prolongation of a line drawn from the telephone pole to the guy pole, but from six to eight feet north of such imaginary line, so the wire connecting the tops of the two poles, and that connecting the top of the guy pole to the anchor, formed two sides of an obtuse triangle, with the guy pole at their intersecting point, the third side -the one opposite to the angle-being an imaginary line drawn from the telephone pole to the anchor. The result of such construction imposed upon the guy pole a pulling strain northward, against which the anchor offered no counteracting force, and which, when yielded to, relaxed the tension of the connecting wire between pole and anchor, and afforded response by the guy pole to the westward pull of the telephone pole. After the accident it was found that the top of the guy pole inclined northward about three feet. It no longer raked to the east, but stood in a perpendicular line east and west. As an indication that the pole had yielded to the strain upon it, the ground to the west of its base was found pushed upward and outward, while to the east there was a space between the pole and earth into which a man's hand could be inserted readily.

The night preceding the accident a storm of some severity occurred, which blew down some few telephone poles in different parts of the city, and caused other damage requiring repair work to be done the next day. The wires on the city pole at Park street were affected, and plaintiff-employed by the city was sent up the pole to make necessary repairs. In taking position to work. he rested one foot on an iron step, and threw the other over the cross-arm. Finding one of the "primary" wires interfering with

his position, he seized it with his hand in order to remove it out of the way. At that instant his foot slipped slightly on the step, causing his body to swerve into contact with the city wire, thereby forming a connection between the two wires through the medium of his arm and body. A shock followed, of sufficient intensity to burn his hand and shoulder at the points of contact and to deprive him of consciousness. He fell from the pole, a distance of some 25 feet. The city lamps on this line were upon what is called a "metallic circuit"; that is, the electric fluid which fed them traveled its entire course upon wires without coming into contact with the earth. In fact, a "grounding" of the circuit at any point would change the course of the current from the wire running through the lamps to the earth, for the latter medium offered less resistance than the lamps-and an electric current travels the line of least resistance. It therefore was essential to the operation of the lamps to keep the circuit free from terrestrial communication. The "primary" wires were upon what is called a "ground circuit"; that is, the current was carried to the end of the line upon a wire, and there connected with the earth, through which it returned to the place of generation; but in case the wire at any intermediate point was brought into connection with the ground by any good conductor of electricity, the current would use the shorter line of travel thus established. And also it appears to be a law of some importance in this case that when wires of two parallel circuits carrying different currents, the one high and the other low in potentiality, are brought into contact, the high current will overflow into the low in an effort to equalize the two. It will thus be seen, keeping in view these principles, that, notwithstanding plaintiff received his shock between the city pole at Broadway and the powerhouses, if the wires, or any of them which formed a part of the three different circuits, became grounded, and the city wire formed a contact with either of the primary wires, the plaintiff, in acting as a conductor between the city wire and one of the primary wires, would receive a severe shock, as the primary wires carried currents of 1,000 and 500 volts respectively. The city wire at the time of injury carried no current, the lamps being used only at night.

Thus it appears a complete chain of facts connects defendant's negligence in the setting of the guy pole with the injury to the plaintiff. We do not understand it to be denied by defendant that such causal connection has been shown by plaintiff's evidence. It is at least tacitly admitted that plaintiff's shock could have been produced as the result of the breaking of the primary wires at Broadway, and their intermingling with the city wire as above described. But defendant says that other causes for which it would not be liable could have produced the

shock, independent of the negligent act charged, and that the jury necessarily was compelled to speculate in the selection of defendant's negligence as the proximate cause. It is pointed out that the storm of the previous night was of great violence, that much damage to poles and wires resulted therefrom, and that the break at the railway pole could have resulted from elemental action. It is not shown that any pole or tree or other object was thrown against the line at any point near the railway pole, nor does any other fact appear which indicates that the storm alone was responsible for the damage. It seems highly probable that the wires were torn loose during that disturbance, but nothing else can be pointed to as the cause of the charging of the city wire with currents drawn from the others but the strain imposed upon the primary wire by the guy pole. It was the duty of the defendant, in erecting that pole, to take into consideration the probable results of the usual elemental action. It is not enough to exonerate it from blame to show that the guy pole, as it stood, was a safe construction in fair weather. Severe storms are a normal condition, and any construction is not reasonably safe, and cannot be denominated the result of proper care, that will not withstand them. Defendant's evidence does not show that the storm was of overpowering violence, such as could not be guarded against by ordinary foresight; while plaintiff's evidence is to the effect that it was not of unusual severity. Under all the facts shown, it is reasonable to infer that the impact of the wind coming from a westerly direction against the heavily loaded telephone line bent it eastward, thereby slackening the strain upon the guy pole wire. The resilient reaction of the telephone line following the cessation of the wind tightened the guy wire with violent force, which, being communicated to the loosened guy pole, jerked it forward upon the primary wire with force sufficient to tear it from its moorings. The storm cannot be considered, under the evidence, as a sole producing cause of the damage, but rather as a condition which accelerated the natural result to be expected from the negligent construction. Also, it is urged that the negligence of some unknown person may have caused the cross between the primary and city wires, existing at the time of injury. It appears that some one had wrapped the loose ends of the broken primary wires around the city pole, probably before plaintiff received his shock. Evidently, this was done to prevent injury to people upon the street. But it is not shown, nor does it appear in any manner, that this act affected the position of the wires upon the cross-arm above.

We do not feel justified in resorting to conjecture, as would have to be done should we infer that the contact of the wires above mentioned resulted from that act. But assuming, for argument, that the wires were

negligently wrapped around the pole, and thereby brought together on the cross-arm, we cannot adopt defendant's conclusion that such act would lift the burden of responsibility for plaintiff's injury from defendant. The danger was produced by the parting of the primary wires, the direct result of defendant's negligence. The loosened ends of these heavily loaded wires, darting here and there upon the ground in a public highway, threatened any one who happened to be there with serious injury, even with death. It was a work of imperative necessity to confine the danger as far as possible. Under such circumstances, the negligent act which first turned loose the death-dealing power must be held to be the proximate cause of any injury resulting therefrom; not the acts of those who, in attempting to limit its sphere of operation, diverted its course, thereby aiding in the infliction of damage in an unanticipated quarter.

Other producing causes presented for consideration-one, that the cross-arms on the railway and city poles gave way because of their unsound condition, and another, that the pole from which plaintiff fell had been saturated with water from rainfall to the extent that it became a good conductor of electricity, and, as such, together with plaintiff's body, formed the connecting medium between the primary wire and the groundmay be dismissed with the observation that they are predicated entirely upon defendant's evidence, and are contradictory to the facts brought out by plaintiff. These issues, therefore, were settled by the verdict of the jury, so far as we are concerned.

We

Finally, it is urged the demurrer should have been given on the ground that plaintiff was guilty of contributory negligence under the facts disclosed by his evidence. think, under the facts, this issue was for the jury to decide. It is claimed plaintiff should have worn rubber gloves in handling high power wires; also should have made a test to ascertain if the city wire was charged, and should not have relied upon the supposition that no current was upon it. But it is shown, in answer to this, that there is no danger in handling live wires when the body is not in position to connect them with other charged wires or with the ground, and that a telephone pole being a poor conductor, will not aid in grounding a current. Also, it appeared that, while plaintiff believed the city wire was "dead," he acted upon the contrary assumption, and did not voluntarily come into contact with it. The closing of the circuit by his body was purely accidental, being caused by the slipping of his foot. His failure to test the city wire was immaterial under the facts stated by him, which, in the consideration of the question before us, we must accept, and which sustain his assertion that he treated the city wire as one charged with a current. Under the views ex

pressed, we must hold no error was committed in overruling the demurrer.

Objections also are made to the rulings upon the admission of evidence. Plaintiff was permitted to testify relative to observations of the guy pole made by him two months after the accident, particularly with reference to the condition of the ground at its base. Another witness, also, was permitted to testify to the condition existing there two weeks after the accident. Both witnesses testified to the same condition; that is, that on the west the ground was pushed up, and on the east there was a space between the earth and pole. The materiality of the evidence is made manifest by the sharp conflict between the parties relative to the manner of setting the pole. Plaintiff's witnesses contended that it was raked eastward a sufficient distance to clear both primary wires, and altered its position as before detailed, while defendant claimed that the pole was set upright between the two primary wires, and that its position never changed. It will be observed that all agree upon the position of the pole at the time of injury. Assuming defendant's claim of no change in position, the ground at the base of the pole would have remained undisturbed; while, if plaintiff was right in saying the top had shifted to the west, the earth at the base would show the conditions described by him and his other witness. The fact the evidence of both parties shows that the position of the top of the pole was the same wo months after the accident that it was two weeks thereafter, and at the time thereof, furnishes the connecting proof that the condition of the ground at its base was the same at all three periods, and left it a matter for the jury to say which of the two conditions described existed. The rule followed in the cases of Hipsley v. Ry. Co., 88 Mo. 348, Alcorn v. Ry. Co., 108 Mo. 81, 18 S. W. 188, and Ely v. Ry. Co., 77 Mo. 34, cited by defendant, does not apply. It goes no further than to prevent proof of a subsequent change of construction being received as bearing upon the fact of negligence. Here the evidence was offered for the purpose of proving an unchanged condition which existed at the time of injury. It is not to be inferred we are holding that such evidence may be received without connecting proof, but we are deciding that such proof was shown.

The evidence relating to the condition of the wires shortly after the accident also was admissible. Under the views herein expressed, the fact of the wrapping of the primary wires around the city pole did not deprive such evidence of probative force. Without further comment on this branch of the case, we say there was no substantial error in the action of the court in passing upon questions of evidence.

We find the issues bearing upon the fact of negligence were fairly submitted in the instructions, and that no variance exists be