Consolidated School District v. Power Company , 329 Mo. 690 ( 1932 )

ON MOTION FOR REHEARING. In their motion for rehearing counsel for appellant says that our opinion overlooks the question "whether or not the trial court committed error in giving respondent's Instruction P-1 because such instruction failed to submit to the jury the specific acts of negligence, if any, shown by the evidence." In ruling that "the court did not err in giving this instruction" we necessarily decided the question, although the reasons were not given. We have no fault to find with respondent's contention that the language "that the defendant negligently and carelessly permitted its transformers, mentioned in evidence, to be and become defective in that a greater current of electricity was permitted to pass through said wires than was reasonably safe," appearing in this instruction, was a sufficient specification of negligence. Furthermore, defendant in its instructions numbered 12 and 13 by specific reference to this instruction adopted the same theory of submission and it is not now in position to urge that it was erroneous. [Fowlkes v. Fleming, 17 S.W.2d 511, 516, 322 Mo. 718; Gary v. Averill, 12 S.W.2d 747, 761,321 Mo. 840; Von Eime v. Fuchs, 8 S.W.2d 824, 320 Mo. 746; Hebenheimer v. City of St. Louis, 269 Mo. 92, 189 S.W. 1180.]

Counsel for appellant also say that the opinion overlooks the question "whether or not the trial court committed error in giving respondent's Instruction P-1 because such instruction did not require the jury to find that appellant knew of the alleged negligent conditions set forth in respondent's petition, or by the exercise of ordinary care it could have known thereof, in time to have removed such conditions, but negligently failed to do so." No such criticism of Instruction P-1 appears in the points and authorities listed in appellant's original brief. It seems to have been advanced for the first time in the reply brief, and under our Rule 15 it should not be considered. [Cech v. Mallinckrodt Chemical Co., 20 S.W.2d 509, 516, 323 Mo. 601; Orchard v. Missouri Lumber Mining Co., 184 S.W. (Mo.) 1138; Simmons v. Affolter Cowan, 254 Mo. 163, 162 S.W. 168.]

For the above reasons appellant's motion for a rehearing is overruled. All concur.