Dissenting opinion. For majority opinion, see 46 S. W. 968.

MARSHALL, J. The importance of the legal principles involved in this case, and the fact that in some respects it is the first case of its kind that has reached this court, demands that I shall give my reasons for my dissent from the opinion of the majority of the court. To understand the points involved, and to appreciate the force of my dissent, it is necessary to state the case more fully than is done in the opinion of the majority.

The suit is an action for damages for the death of plaintiff's husband. The petition avers that the defendant is a duly-incorporated Missouri corporation, organized for the purpose and engaged in the business of furnishing electric light in the city of St. Louis; that it had wires strung on poles set up on the public streets, conveying and charged with "a certain dangerous and life-destroying fluid and current, known as 'electricity'"; that on April 18, 1894, it had such wires, so strung and charged, in a public alley in the rear of house No. 2737 Thomas street, and that "the defendant negligently and carelessly permitted its said wires, to the number of six or seven, then and there charged as aforesaid, to become broken in two and to fall to the pavement of said alley, and to remain broken in two and down for a long time, then and there, while full charged with electricity as aforesaid, when it knew, or ought by the exercise of any care and caution to have known, that the said wires were so as aforesaid broken and down, and charged as aforesaid to destroy human life"; that, while the wires were so down, plaintiff's husband, while walking along the alley, struck his foot against one of the wires, and was instantly killed. The answer is a general denial and a plea of contributory negligence on the part of plaintiff's husband. The reply denied contributory negligence.

The evidence for plaintiff was substantially as follows:

Annie Gannon testified that she is the widow of William Gannon, who was killed on April 18, 1894; that he was 38 years old, employed in the fire department, and was a strong, healthy man.

Ernst Hilgendorf testified that he is the city telegraph operator; that it was his duty to receive alarms of fire, and distribute them to the engine houses and other city departments; that on April 18, 1894, at 10:56 a. m., he received an alarm from box No. 129, in the neighborhood of Leffing well avenue and Thomas street; that the Laclede Gaslight Company have connection with his office, but he could not say whether they were given the alarm on that occasion.

Peter J. Dolan testified that he was standing on Glasgow avenue, between Sheridan and Cass (three blocks from the fire), when he heard the alarm; that he ran to the fire, saw smoke coming from the shed, went into

the alley about 10 feet, to a point 30 or 40 feet from the burning shed, and saw two wires down, and there may have been more; that the fire department got there two or three minutes later, and within two minutes after that he was put out of the alley by a policeman; saw a man (not identified as the deceased) lying in the alley when the policeman was putting him out of the alley; that at that time the flames had not burst out of the top of the shed.

Frank J. Hildebrand testified that he was at work in his barber shop, 2601 Sheridan avenue, cutting witness Sullivan's hair; that when the fire alarm sounded he and Sullivan ran to the fire, which was a block and a half west of his barber shop; that the smoke was dense, and it was "pretty hot"; that he went into the alley, and saw an electric wire lying north and south across the alley; that from two to four minutes later the fire department arrived; that Gannon came into the alley from the south, and was killed very soon after he got there; that he (witness) assisted in pulling the hose into the alley, and got a pair of nippers and gloves to cut the wire; that he was excited on account of seeing Gannon lying on the wires, and he got the nippers after the man was hurt.

John Sullivan, a police officer, whose hair Hildebrand was cutting, testified: That he heard the alarm at half-past 11 o'clock in the morning, or between 11 and 12. That he ran to the fire. Noticed a lot of smoke, and the adjoining shed, across from it, was smoking. too. That he went into the alley, but as it was getting "pretty hot" he went into the yard. That "three or four minutes after that the fire department came, and when the fire was over-pretty near over-I seen Mr. Gannon, a fireman, coming out from the hallway; and I noticed a black wire about two feet from where he stepped out, and I noticed him having a nozzle in his hand. As he came out, I saw him step on this wire. I think it was the right foot. And I noticed him give a groan. and halloo 'Oh! That is all I noticed." Witness further testified that the wire was down when the fire department arrived, and that when he saw the wire the flames had burst out on top of the shed.

James Cain testified that on April 18, 1894. he was pipeman in No. 17 company, which was stationed on Easton avenue, between Leonard and Compton, 5 blocks west of the fire; that his company was among the first to reach the fire; that they started down the alley, when somebody hallooed that the wires were down, and to look out for the horses, just in time for them to stop; that the alarm came in about 11 a. m.; that Gannon belonged to chemical No. 4 company, and got there after he (witness) did; that Gannon came into the alley from Thomas street, through the yard, out of a hallway or door in the alley, with a pipe in his hand; that he saw him fall; was 10 or 12 feet from him; that a man threw a rope around him and pulled him

away from the wire as soon as possible; that the fire was nearly under control when Gannon was killed, which was 20 minutes after witness reached the fire, and he reached the fire 2 or 3 minutes after the alarm came in; that the wire which killed Gannon was a large wire, and hung down along the pole; that Hester, assistant chief, tried to cut it with an ax, striking it against the pole; that Gannon's engine was stationed on Washington avenue and Twentieth street, about 10 blocks south and 5 blocks east of the fire; that the defendant's power house or plant was located at the foot of Mound street, which was about twice as far from the fire as Gannon's engine house was from it; that everybody knows that when wires are down they are dangerous; that firemen carry wire cutters; that he could see from the west end of the alley that the wires were down; that his company played on the fire quite a while before Gannon's company arrived; that No. 5 company came in from Sheridan avenue on the north side of the alley, and that Dolan and then Shivley were knocked down by the wires, and a few minutes afterwards Gannon fell; that he did not see any one attempting to cut the wires before Gannon or Dolan fell.

Luke McConn testified that he is a member of hook and ladder company No. 8, which was stationed at the same engine house with Gannon's company; that they went to the fire together; that he, Gannon, and Cronin worked on the Thomas street side of the shed 10 or 12 minutes before going into the alley, and then some one called to bring the chemical line into the alley, and witness and Gannon pulled the pipe into the yard, on the Thomas street side; that he and Gannon stepped into the alley, when he got a shock, jumped to another part of the alley, and shouted, "Look out, Billy!" that Gannon was right behind him, and, as he looked around, Gannon stepped out into the alley, reeled, and fell over; that there was from four to six inches of water in the alley, from the hose and the rain, it being just after a thunderstorm; that the wires came down in a looped shape, and looked pretty big to him when he stepped into the alley; that all those wires were insulated, "if they don't get burned or torn off"; that he did not know how the insulation got off of these wires.

Robert E. Cronin testified that he belonged to the same chemical company with Billy Gannon; that he was at the fire; that they took the hose through the yard to the shed; that he did not see the accident to Gannon; that it was a pretty fierce fire for a shed fire; that it was a two-story shed, with a hallway through it; that all firemen know that electric wires are dangerous if they are down or disarranged.

Charles Swingley testified: That he is chief of the fire department. Knew Gannon, as a fireman, about four years. That he was at the fire. That, on arriving there, found a fire raging. "It was a pretty fierce blaze when

they commenced playing on it. Ques. by the Court: When did you first notice those wires that were down there? Ans. On entering the alley. Ques. And then, you say, the fire was raging? Ans. Yes, sir. Ques. It had been for some time? Ans. It appeared to me so. Ques. by Counsel for Defendant: It was raging pretty fierce, with the flames away up in the air? Ans. Yes, sir."

Andrew J. O'Reilly testified that he has been a professional electrician for 12 or 15 years, and is supervisor of city lighting in St. Louis; that he is acquainted with the electric light wires in the city; that he arrived at the fire about 20 minutes after it started, when it had burned out; that he found seven wires down, --one telephone wire belonging to the city fire department, and six copper wires belonging to defendant; that the wires were strung on poles, east and west, in a public alley. Witness produced six wires which were cut on the day of the fire from the wires in the alley, and testified that the five copper wires were used by the defendant to furnish electricity for light and power purposes under contract with the city, and for private lights and power north of Washington avenue; that the large wire produced by him was part of the Brush incandescent light system, being the main wire supplied with electricity from defendant's power house on the Levee and Mound street, and carried a charge of 2,200 to 2,300 volts; that the power circuit carried about 500 volts. which would shake one up seriously and burn him; that 1,100 volts will kill a man; that there was no current at that time on the small wires of the alley-lighting circuit, except at night; that when he arrived at the fire he found the big wire burnt in two; that, if a wire breaks, the defendant has no automatic method of knowing where the break is; that the only way it finds out that the wire is broken is that the lights beyond the break go out, and the customer reports the fact to defendant, who then sends out a man to repair it; that defendant uses the multiple system; that there is less danger in using the multiple system than the series system, because the latter requires more voltage; that the voltage used in these wires was no more than was required by defendant's contract with the city; that all the electric companies in St. Louis have a system of receiving fire alarms; that the defendant, under contract with the city, furnishes electric light to the various engine houses and other public institutions along the line, and is required by that contract to keep the circuit of electricity in operation all the time,-day as well as night; that the pieces of wire exhibited by him were cut off for him by an inspector of the lighting department while he was at the fire, and that in his opinion these wires were broken by reason of heat underneath; that when he saw the wires, the day of the fire, quite a length of the insulation was burned off; that before the fire the wires were strung in accordance with the city ordinances, without any unusual sagging be

tween the poles, and were 25 feet above the ground; that he knew Gannon, and had talked with him about his work; that all firemen know the dangers of electric wires, and he thought Gannon had spoken to him about it; that Gannon was a lineman before he was a fireman; that the defendant's contract with the city required it to keep the lights burning on this circuit all the time, to furnish light to the engine houses Nos. 28 and 29 and the mounted police station; that in his opinion those wires could not have set fire to the shed; that the large wire belonged to defendant's incandescent Brush system, which was a metallic circuit, having no ground connection, and was supplied with electricity generated at defendant's station at the foot of Mound street; that defendant has appliances which show when both wires of the circuit are down, but that in this case only one of the wires was down, and that defendant had no way of knowing the fact in such cases; that defendant's contract required it to keep a constant current of 2,000 volts for that part of the city, which was a proper current for that purpose; that the large wire was strung almost over the shed, and that the burning of the shed would have produced heat enough to affect the wire; that in his opinion the breaking of these wires was caused by "the wires becoming overheated at this particular point, lost their strength, and there was a reduction of cross section, due to the tension in the wires, and a consequent break"; that in his opinion the break in the wires was cause by the fire; that he examined the wires at the time of the fire, and there was no sagging; that, if the wires between these poles had sagged enough to cause the wires to touch the shed, the wires on the other spans would have sagged, too, but they were all tight, and there was nothing to indicate that the wire had sagged and set fire to the shed; that engine house No. 28 is west of where the fire occurred, and that a telephone message was received that day at about 10 minutes past 11 o'clock, from engine house No. 28, that its lights went out at 11 o'clock, which was a short time after the fire alarm was given, which occurred at about 5 minutes before 11 o'clock; that it was impossible for these lights to have continued burning after the break in those wires; that at 15 or 20 minutes past 11 the defendant was notified from witness' office that the lights were out at No. 28 engine house; that the firemen had gone to the fire before the notice was given to defendant.

This was all of plaintiff's evidence. Thereupon defendant demurred to the evidence, the court overruled the demurrer, and defendant duly excepted. The defendant then introduced evidence as follows:

S. A. Keightley testified that he was present at the fire; was filling an ice box right north and a little northwest of the fire when his attention was first attracted to the fire; that he ran to the fire, and at the request of a lady he ran to the alarm box on the northeast corner of Leffingwell avenue and Dick

son street, a block and a half from the fire. and turned on an alarm, and then came back to the fire; that the firemen arrived in three or four minutes; that before he turned on the alarm there was considerable tire,"the whole back part of the stable was blazing"; that he noticed the electric wires on the poles before he turned on the alarm; that none of the wires were down, or he would have noticed it; that on coming back, after turning on the alarm, he noticed three or four wires down.

J. W. Beyer testified that his attention was called to the fire when Keightley was fixing the ice box; that he ran to the alley, walked into it 10 or 15 feet and watched the fire; that when he arrived the whole back of the shed was ablaze; that the wires were then up on the poles; that about a minute after he went into the alley, and before the firemen came he saw the wires fall, and because of the wires being down and because of the heat he got out of the alley; that he saw Gannon when he reached the fire, when he went into the alley, and when he fell.

E. M. Wordsworth testified that he lived at 2733 Thomas street, the second house from the fire; that he heard the commotion, and went to the alley and saw the fire; that the wires were all up when he arrived at the fire; that he saw the wires burn in two and fall, and thinks some of the firemen were there when they fell.

August Keil testified that he lived on Leffingwell avenue, on the corner of the alley that runs midway between Thomas street and Sheridan avenue (which is the alley in question, and would make his house about 75 feet from the fire); that he was in the second story of his house when he noticed the smoke coming out of the shed; that he ran into the stable, and saw it was on fire downstairs; there was some wash strung up in the stable, which he took down and laid it on the steps, and by this time a man got a garden hose and began squirting it on the stable, but it got so hot that he could not go back through the alley; that when he went through the alley the wires were all up on the poles, and when he got out of the stable the blaze was shooting up, and he saw the wires curl up and drop down into the alley; that this was two or three minutes before the firemen arrived.

Miss Josie Keil testified that she is a sister of August Keil, and lived with him; that she smelt the smoke, and her brother called "Fire," and ran out of the house; that she looked out of the window; could only see smoke at first; then some one burst open the door, and the flames shot out; that the electric wires were all up on the poles; that when the flames shot up, the covering of the wires caught fire, and the wires burned in two and fell.

John Fitzgerald testified that he reached the fire before the firemen came; that he stood at the entrance of the alley on Leffingwell

avenue, and saw the smoke burst out around the windows and doors; that the electric wires were all up; that he helped a lady to get her surrey out of a stable on the opposite side of the alley from the fire, and pulled it out through the alley; that the wires were up then; that he saw the wires fall, and he got out of the alley as soon as he could.

Thomas J. Foster testified that he went to the fire with Fitzgerald; that he saw the wires burn in two a few minutes after he arrived at the fire; that he warned the driver of No. 17 reel that the wires were down, and he just had time to stop; that the rubber around the wires caught fire and burned, and the wires fell close to him, and he hallooed to Mr. Sweeney that the wires were coming down, and Sweeney got his pants burned in getting out of the alley.

William Gallagher testified that he is the general foreman of the electric light department of the defendant company, and remembered the fire; that the alarm was given about 11 o'clock; that defendant's lines and circuits in that vicinity were at that time in first-class condition; that defendant has an instrument known as a "circuit breaker," when both of the wires are down, but that it would not indicate the falling of only one wire, if the other was up, and that he knows of no device which would do so; that the first notice defendant had that the wires were down was about 7 minutes past 12 o'clock, which was received by telephone from the city lighting department, and up to that time there had been no indication of any disturbance on that circuit; that he immediately went out to repair it; that, if one wire of a circuit is down, it is not necessarily dangerous, but if both are down, and you touch one of them, it is very dangerous; that if both wires are down, and resting in a pool of water, the circuit would be continuous, and the circuit breaker would give no indication of the break; that there was no indication at the company's works that morning that there was any grounding of the circuit; that defendant furnishes light for the city institutions, and is required by contract to keep the lights burning all day; that defendant got the fire alarms at the same time the fire department did, and that on this occasion the alarm came from the box at Leffingwell avenue and Dickson street; and that defendant had no live wires in that neighborhood, and knew nothing about any disturbance until the report came that the lights were out in No. 28 engine house.

Robert Quain testified that he is general foreman of the city fire and police department; that he was familiar with the wire in question; and that it was in good condition when put up, and was a well-constructed line, erected in compliance with the city ordinances.

M. B. Fittsworth testified that he is a city inspector of fire and police telegraph; that he was at the fire at 11:30, and cut the wires

off the poles; found the line in good condition, except some of the wires were down.

This was all the evidence in the case. The plaintiff introduced no evidence in rebuttal. Thereupon defendant asked, and the court refused to give, the following instruction,-defendant duly saving its exception: "The court instructs the jury that, upon the pleadings and all the evidence, the plaintiff cannot recover." The court then instructed the jury in various respects, but as no point is urged here as to the correctness of the rulings in this respect, it is unnecessary to refer to that feature of the case. There was a verdict for plaintiff for $3,000, and, after unsuccessful motions for new trial and arrest, the defendant appealed to this court.

1. The opinion of the majority of this court, after laying down the undisputed proposition that a petition which alleges facts sufficient to authorize a recovery is good, notwithstanding it contains other allegations not necessary to make out the plaintiff's case, holds that "plaintiff's petition was complete when the charges had been made that her husband had met his death upon one of the public alleys of the city, when in the discharge of his duty as fireman, and without fault upon his part, by stepping upon an electric wire of the defendant, charged with electricity, that defendant had negligently suffered to become broken in two and fall to the pavement of the alley." And after thus adjudg ing the petition sufficient, and disregarding the other allegations of the petition as unneeessary, the opinion proceeds: "It is scarcely necessary to assert that it was the duty of the defendant company to so keep at all times its electric wires, over which was continuously being transmitted that most dangerous energy, force, or fluid known to man, called 'electricity,' out of the way of the citizen, that contact with them would not occur as he went to and fro in the prosecution of his business. It was a matter of the plainest duty for the defendant to see that the streets and alleys of the city, along which, by permission, it was suffered to place its overhead wires for its own private gain, were at all times maintained in the same condition as to safety from electricity as they were before its overhead use thereof was begun; and a most imperative duty was placed upon defendant, in assuming the overhead use of the public alley with its wires, to see that persons passing along and using the alley are not injured thereby; and when proof, under the allegations of plaintiff's petition, was made that one or more of defendant's wires, charged with its death-dealing force, was down upon one of the public alleys of the city, and that plaintiff's husband met his death in the discharge of his duty, a prima facie case of negligence was made out against defendant, and the burden was then put upon it to show that its wires were down in the alley through no fault of its agents and servants, notwithstanding the plaintiff had al

leged further that said wires were permitted to become broken in two and to remain down and broken in said alley for a long time, when it knew, or ought to have known by the exercise of care and caution, the broken condition thereof. * Plaintiff by her testimony made out a prima facie case of negligence against defendant, although her proof was not in full after the manner the negligence was charged in the petition. The proof of the facts that were alleged was adequate to cast the burden upon the defendant of showing the nonexistence of negligence on its part, notwithstanding plaintiff went further in her petition, and charged that the negligent acts complained of were done under circumstances that could not be defended against." And, having reached this conclusion, the opinion holds that when the burden is thus shifted to defendant to exonerate itself, and it does so by positive evidence that it was wholly without fault or negligence, and when the plaintiff introduces no evidence whatever countervailing defendant's complete exoneration, the court must submit the case to the jury, and cannot direct a verdict for defendant, because the jury are the triors of all questions of fact, and have the right in any case to say, "The uncontradicted testimony does not satisfy or convince us," and to find a verdict in the teeth of the evidence, and that, unless the trial court sees fit to set the verdict aside, this court is powerless to interfere. These conclusions are so much at variance with my understanding of the law and of the prior decisions of this court, that I feel compelled to dissent, and to express my reasons.

Analyzed and reduced to syllogisms, the majority opinion asserts two propositions: First. A live electric wire down on a public highway; the plaintiff injured by contact with it. Conclusion: A prima facie case of negligence made out against defendant. Second. A prima facie case made by plaintiff as stated; the burden shifted to defendant to exonerate himself, which he does by competent testimony which is not assailed or contradicted by plaintiff nor the witnesses attempted to be impeached. Conclusion: A question of fact is presented, which the jury alone has the right to determine. I cannot agree to either proposition, and especially so under the facts in this case. The reasoning of the court may be expressed in a nutshell. It is that it is the duty of a person having such wires strung over a public highway to see that the pedestrians on the highway are as safe from the danger of electricity as they were before the wires were placed there. This can only mean that such users of the highway are at least quasi insurers of the traveling public. No American case that the industry of learned counsel has cited holds such a doctrine. The opinion cites none. After patient research I have found none. Thomp. Electricity, § 65, refers to the decision of Mr. Justice Blackburn, in the court

of exchequer chamber, in the case of Fletcher v. Rylands, L. R. 1 Exch. 265, where the obligation of a landowner who collects water on his own land, and it escapes and injures others, was decided, and says: "It may be doubted whether persons or corporations employing for their own private advantage so dangerous an agency as electricity ought not to be regarded as quasi insurers, as to third persons, against any injurious consequences which may flow from it." The distinguished author cites no authority to support the intimation of his opinion contained in the text quoted, but contents himself with a reference to Fletcher v. Rylands, supra, which even a casual consideration will show is not applicable. Water collected on one's land for his own purpose is not, like electricity, conveyed along a public highway for the public purpose of lighting the streets, and furnishing light and power to citizens in their business houses or residences abutting the streets. However, the author says (section 66) that the doctrine of Fletcher v. Ryland has not met with approval in all American jurisdictions, and cites, inter alia, the case of Morgan v. Cox, 22 Mo. 373, in which Leonard, J., speaking for this court, held that negligence in the performance of a lawful act confers a right of action upon one injured thereby, and that "reasonable care" means such care as is proportionate to the probability of injury that may arise to others. The cases cited by plaintiff's counsel do not maintain the doctrine that the defendant is an insurer. A fair type of those cases is Railway Co. v. Conery (Ark.) 33 S. W. 426, in which the rule is stated to be: "In cases where the wires carry a strong and dangerous current of electricity, and the result of negligence might be exposure to death or more serious accidents, the highest degree of care is required. This is especially true of electric railway wires suspended over the streets of populous cities or towns. Here the danger is great, and the care exercised must be commensurate with it. But this duty does not make them insurers against accidents; for they are not responsible for accidents which a reasonable man, in the exercise of the greatest prudence, would not, under the circumstances, guard against." The degree of care required in law is proportionate to the dangers that reasonable men would apprehend under the circumstances. The failure to exercise such degree of care is negligence. But negligence is the gravamen of the action, and there is no element of insurance or quasi insurance in it. There may be a difference in the degree of care required of an electric company and of a steam or street railway company using or crossing a public highway. All increase the dangers to the pedestrians. But none are required to see to it, at their peril, that the danger to the pedestrian is no greater after they use the highway than it was before. The danger to the pedestrian on a highway increases in proportion to the increased trav