This is аn action to recover damages for personal injuries received by reason of the alleged negligence of the defendant company in failing to insulate certain electric wires which it is alleged to have maintained and controlled.
The defendant is a public service corporation operating a street railway in the city of Carterville and furnishing electricity, for compensation, to persons desiring to use the same along and near its line of railway. In the year 1905, it set' poles and strung wires
The plaintiff’s injury was sustained while he was moving a house along thе public street. Intending to pass under these wires and noticing that the house would strike them, he climbed to the roof and grasped the electric wires together with several of the telephone wires for the purpose of raising them and allowing the house to pass under. The evidence tends to show that; he thought all the uninsulated wires he saw therе were telephone wires. The undisputed evidence is that all the wires which were strung there together were of about the same size and appearance.
The defenses to the action were as follows: (1) That an ordinance was in force in the city of Carters-ville requiring house movers to obtain a permit from the proper authorities before they could lawfully move houses along the streets, and that the plaintiff had failed to obtain such permit and was therefore guilty of an unlawful use of the street. (2.) That even if plaintiff had obtained a written permit as provided by the ordinance he would not have had a right to interfere with telephone or electric wires strung across a street and in doing what he did would have been guilty of a trespass. (3) That section 4579, Revised
All these defenses were embodied in instructions requested by the defendant, some of which were refused, and of this complaint is now made.
The appellant asks us to rule that because the plaintiff was moving the house along the streets of Carterville without first having obtained a permit from the city’s authorities as provided by ordinance he must be denied a recovery.
The law of this State is well settled that the violation of an ordinance will not defeat a recovery unless such violation is the proximate and efficient cause of the injury. [Reed v. Railway Co.,
It cannot be argued that had plaintiff possessed a permit at the time of the contact with the wires his injury would have been any the less certain or painful, and the eases relied upon by appellant holding that the violation of an ordinance will defeat recovery are those where thе act of violation was in and of itself at least a contributing cause of the injury. [Weller v. Railroad,
Tbe moving of bouses along a public highway is a privilege that may rightfully be grаnted by the proper authorities so long as such use does not amount to a nuisance or destroy private property or impair tbe obligations of contracts. It is not a common right of tbe individual, such as to use tbe street as a pedestrian or with a vehicle, and cannot therefore be said to be an ordinary use of tbe highway. It is an uncommon and an extraordinary use. [Northwestern Telephone Exch. Co. v. Anderson (N. Dak.),
However, merely because plaintiff was using tbe street in an extraordinary way would not relieve tbe defendant of tbe duty of exercising toward him tbe degree of care required of users of electricity. Tbe record fails to show that tbe use in question was a nuisance in that it unreasonably obstructed tbe traffic of tbe street; nor did plaintiff’s action in attempting to raise tbe wires over tbe bouse in any way amount to a damage or destruction of defendant’s property or an interference with defendant’s use of the wires. Plaintiff at most was a mere technical trespasser.
As was held in Newark El. L. & P. Co. v. Garden,
The city was the only one to complain of plaintiff’s use of thе street under the ordinance. It was not defendant’s business to object so long as plaintiff was. not molesting its property to the extent of damaging it or interfering with its service, and plaintiff in attempting to lift the wires over the house so far as the record discloses was doing neither. [See, Day v. Consolidated L. P. & I. Co.,
Appellant contends that it did not own the wires and therefore cannot be held liable for the injury. While the evidence shows that the school district paid for the wire and its erection, there is convincing evidence that the defendant had always repaired it when necessary and maintainеd it at its own expense, and was then using it as a conduit in supplying its electricity to the schoolhouse making a charge for such as was used, and there was sufficient evidence to fasten the control and maintenance of the wires on the defendant. This required defendant to use such wires with the same degree of care as it would be charged with had it actually owned the same. It was the dangerous current of electricity in the wires that caused the injury, and that the defendant certainly did own and control. [Nagel v. Railway Co.,
Nor will the defense set up under section 4579, Revised Statutes 1909, making it a misdemeanor to “unlawfully and maliciously dеstroy, injure or otherwise tamper with any . . . line or pole,” etc., relieve the defendant of liability. There is no evidence that the wires were in any way injured by the act of the plaintiff. The title to the section of the statute is, “Penalty for injuring electrical equipment.” A tampering, such as is contemplated by the statute, is one that is unlawfully and maliciоusly done resulting in an injury to the equipment. Merely attempting to raise the wire a few feet so that the house would pass thereunder would seem on the other hand to be an act done
The general law governing the duties of the usеrs of electricity has been well defined in this State, and may be summarized as follows: There is imposed on those who handle and distribute so highly dangerous a force as electricity the duty of exercising the highest degree of care practicable to protect those from danger who through business or pleasure may rightfully go into places that may bring them in contact with wires and other instrumentalities which convey and carry the energy; and this is the degree of care that an ordinarily prudent person will exercise. [Geismann v. Electric Co.,
This proposition is not denied by appellant, but it contends that as the wires were placed on poles at a height of from twenty-two to twenty-five feet above the surface of the street, it could not reasonably anticipate that plaintiff would climb up aiid come in contact with them, and that placed as they were, it owed the
The case of Winegarner v. Edison El. L. & P. Co. (Kan.),
The correct rule of law is stated in the case of Milwaukee & St. Paul Ry. Co. v. Kellogg,
In our case it is shown that houses are frequently moved along the streets of Carterville, from which it necessarily follows that in doing so they may come in contact with any wires that are in the way and which must therefоre be raised or removed. Hence it cannot be declared as a matter of law under such circumstances that the act of the plaintiff was so exceptional and unheard of that a reasonably prudent person exercising the highest degree of care in stringing wires in Carterville would not have anticipated that- those еngaged in the house moving business would come in contact with them, and the wire in question, strung as. it was, was highly dangerous when a contact was. made with the telephone wires alongside of it. Besides, on a previous occasion the defendant had trouble with this particular wire coming in contact with the telephone wires when a house was being moved thereunder, and it therefore cannot say the occasion was unheard of and unprecedented. [Harrison v. Electric Co.,
Appellant claims that plaintiff’s instruction No. 1 put the case to the jury on the humanitarian docfrine. This is without merit because the instruction expressly requires that the jury find as a prerequisite to recovery that the plaintiff was himself free from negligence.
The defendant was not entitled to its refused instruction H because it held plaintiff guilty of contribmtory negligence unless he wore rubber gloves. Such preсaution on his part might have been the safest method of handling the wires, yet it was for the jury "to decide whether the way in which he did undertake ■to lift the wires was such as a reasonably prudent person would have adopted.
The instructions given are in accord with the holdings of this opinion, and those refused advanced the defenses which we have held to be untenable in this •case.
The judgment is affirmed.