191 Ky. 106 | Ky. Ct. App. | 1921
Opinion op the Court by
Reversing tbe judgment in the first case, granting an appeal and reversing the judgment in the second case, and affirming the judgment on the cross appeal.
On the morning of August 27, 1918, between 8:30 and 9:00 o ’clock Martin Winfrey, a colored man about 61
The accident resulting in decedent’s death was a most peculiar one and the undisputed testimony shows that it happened in this way: ,The deceased at the time of the accident was employed by a man named Budy to haul
The first question, therefore, is did the court err in overruling the motion of each of the appellants made at the close of plaintiffs’ testimony, and also at the close of all the testimony, to direct a verdict in their favor upon the grounds of (1), that the decedent was guilty of such contributory negligence as to defeat this suit brought to recover damages for his death alleged to be due to the negligence of the defendants, and (2), that the testimony failed to show any legal grounds in avoidance of the" compromise settlement hereinbefore referred to?
In order to arrive at a true and just conclusion with reference to ground.. (1) we have not only closely studied the record and briefs of counsel, but have devoted considerable time in the investigation of the question as it has been treated and disposed of by the various courts of the country. This study and investigation have led us to the conclusion that there can be no doubt that the deceased under the facts of this case was guilty of such contributory negligence as necessarily defeats a recovery. The adjudicated cases, as well as text writers, all agree that the handlers of electricity are required to exercise the highest degree of care and diligence to prevent the dangerous commodity which they handle from inflicting injury to others, and this degree of care is specially impos
Prom the numerous eases cited in those notes it will be seen that many of them turn on the ag'e and intelligence of the person injured, it being quite universally held that one under the age of 14 years will be prima facie presumed not chargeable with contributory negligence, but even that presumption favoring the indiscretions of youth may be overcome. Stark v. Muskegon Traction and Lighting Co., 1 L. R. A. (N. S.) 822, and Johnson v. New Omaha, etc., Electric Co., 17 L. R. A. (N. S.) 435. In those cases youths under 14 years of age voluntarily came in contact with what they knew to be charged wires, and not as a result of any attractive nuisance, and when they knew that such ’contact would produce a shock but, perhaps, miscalculated the extent of the injury which it might produce. The court in each case held that the deceased, being a person of intelligence and aware of all the facts constituting the danger, by voluntarily touching the wire, so far contributed to their deaths as to prevent a recovery therefor.
In the case before us there exists no fact which would, under the- doctrine of any case coming under our observation, relieve the. deceased of the charge of contributory negligence so as to defeat a recovery herein. There is no fact about which reasonable men might entertain different opinions entering into the consideration of, or in anywise affecting, the question. The deceased knew that the wires were charged and were, therefore, dangerous and in assisting to cover them he was engaged in an act to make them safe for the purpose of being driven over. The evidence is quite conclusive that he had witnessed a shock received by Mr. Heady and, as we have seen, he expressed a fear in assisting Heady to cover the wires at the time the latter received his first shock. He was warned by at least one witness, and perhaps two, of the danger in attempting to cross the wires and also of the danger in attempting to unloose the team of Heady from the wagon. But it is argued that while he might have known of the danger in coming in contact with the wires he did not know or appreciate the danger of their
The text in the Law of Electricity, by Curtis, to which we have referred, on page 800, in stating the rule, as applying to facts almost similar to those we- have here, says: “Hf, however, the wire in a highway is charged with a deadly current of electricity and the traveler has actual knowledge of such a condition or in the exercise of due care would have had actual knowledge thereof, he is not justified in attempting to drive over or near to the wire. Great care and caution are required of a driver who knows the presence of a dangerous condition in a public highway.” Under the facts of this case there can be no different effect upon the plea of contributory negligence where Heady’s wagon attempted to cross the .wires instead of that of the deceased, since he knew the facts which produced the danger to Heady’s wagon the same as if the danger had been produced to his wagon.
It seems to us that if there could possibly be a case where- one could be guilty of contributory negligence in an accident produced by coming’ in contact with an electrical -current, this is one of them. The deceased was, as we have seen, of mature age and possessed more than ordinary intelligence. He had lived and worked in the city of Owensboro for a number of years, where electricity was distributed over wires and used by the members of the public generally. He knew that the wires on this particular occasion were charged with the electrical current and he knew the danger in coming in direct contact with them and -also the- danger of a wagon coming* in contact with them, as is proven by his effort to remove the danger by covering the wires; and, added to all this, he was expressly warned of the danger and advised not to risk
In the discussion so far, we have assumed that the negligence alleged in the petition was the proximate cause of the injury sued for and have not taken into account the intervening agency created by knowingly bringing Heady’s wagon in contáct .with the live wires. Whether, therefore, the negligence of the defendants was the proximate cause of the decedent’s death, or whether such result, produced and brought about in the manner shown, was reasonably to be anticipated by the defendants, are questions not determined; nor, in view of the conclusions reached, have we thought it necessary to either discuss or dispose of the issues relative to the compromise agreement. For the same reason we have refrained from considering other questions relating to the introduction of evidence and instructions to the jury.
For the reasons indicated the judgment against the city of Owensboro is reversed, and the motion of Owensboro City Railroad Company for an appeal is sustained, the appeal granted and the judgment against it is reversed, also the judgment in favor of the defendant Berry,