116 Ky. 451 | Ky. Ct. App. | 1903
Opinion op the court by
Affirming.
The city of Owensboro owns and operates its own electric light plant, conducted both for public and commercial lighting. Appellee’s intestate, a child some fourteen years of .age, while passing along one of appellant’s streets, inadvertently and • innocently came in contact with a guy wire running from the top of a pole, along which were strung the wires for conducting the electric current, to a short post set near the sidewalk. By reason either of imperfect insulation or other improper and neglectful failure’ to keep the wires from coming in contact, the guy wire
The instruction most complained of, and the only one of enough novelty, presumably, to have engaged the serious attention of learned counsel, is this: “The court instructs the jury that defendant was required to have and keep safe and properly constructed wires and poles at the place where plaintiff was injured; and that it was its duty, in using electricity at the place and manner shown in the evidence, to use such care as was commensurate with the danger, and to employ such skill and knowledge as are ordinarily possessed and 'exercised by those experienced in the nature of the element and probable consequences of its application for the purpose it was used; and that if they believe, from the evidence, the defendant failed to have there such wires and poles ox- to employ such skill and knowledge, in consequence of which plaintiff was injured, it was negligent, and they should jind for the plaintiff.” The criticism leveled against this instruction is that it imposes an absolute duty upon the city; whereas, it is argued, the law requires merely, as to keeping the city’s streets in a safe condition, that the city shall be liable only if it had notice of the defect a sufficient length of time to remedy it, or might have had such notice by the exercise of reasonable care on the part of its governing officials. This action is not to charge the city for neglecting to keep its streets in safe condition.- The city, as a body corporate,
Another objection urged against the verdict is that in the 'Concluding argument to the jury counsel for plaintiff indulged in improper criticisms of one of appellant’s witnesses, going so far as to detail an event concerning the witness which was no wise connected with the record. The matter, as used, was improper, but it was of too slight significance to have at all influenced the jury, in any probability. Even if the whole effect of this witness’ testimony be eliminated from the record, it could not have affected the verdict. The testimony of this witness went solely to reduce the. recovery for a certain feature of suffering after the shock. It tended to show that the suffering complained of was not the result of the shock. Be that so. The verdict of the jury barely compensated for what had gone before. We concur in the trial judge’s opinion that the remark of counsel complained of was at most but a harmless error.
Perceiving no error prejudicial to appellant’s substantial . right, the judgment must be affirmed, with damages.