242 Mo. 111 | Mo. | 1912
Plaintiff, then between seven and eight years of age, was injured on the 2d of September, 1905, while using a street, by coming in contact with an electrically charged wire which was broken and hanging over the street about eighteen inches above the curb and which touched one of plaintiff’s hands, causing him to be severely injured and a per
Plaintiff testified that he was then ten years of age; that he was seven when he was injured, three years before; that he did not know his birthday. He was temporarily withdrawn and his father was put upon the stand, who testified that plaintiff would be eleven years old on the 24th of December, 1908. Plaintiff was then recalled. Whereupon defendant asked leave to examine the witness to ascertain if he “understood the obligation of an oath.” The court upon objection of plaintiff’s counsel declined to permit that examination to be gone into at the time, but indicated defendant might ask questions afterwards.
The examination of plaintiff was then continued in chief, after which he was cross-examined but no questions were put to him touching his knowledge of the obligation of an oath. While being cross-examined, he testified in substance that his father was a motorman; that he was sent to the bakery to get bread for breakfast about seven a. m.; that in the course of his trip he came to a place where “building was going on there and they were just digging the foundation and these pieces of plank were' there to walk over. There was no sidewalk — just dirt. I walked along the sidewalk until I got to that place, and I jumped for the board and it slid, and my hand went up, and touched that wire. These boards were between the house line and the curb line. I was about two feet from the curb on the inside when I slid. I saw this wire hanging down and it was about two or three inches inside of the curb, and there were two telegraph poles there, and the wire was hanging down along the side of the pole inside of the curb , about two or
The father of plaintiff testified: “I was at home the day my boy got hurt, as that was my day off. He left home to go to the bakery about seven o’clock. I got to the place where the boy was hurt about five minutes afterwards, I guess. A lady came to me and told me the boy was at the drugstore and I started for there. I saw two poles near there. That exact pole and an old pole which had not been taken down; there seemed to be a change of wires on these poles. They were taking down the old poles and new ones were being put up at this place and further down I saw the wire hanging there and don’t remember much about it," as I was very much excited. It was hanging about eighteen inches from the pole and looked to me probably eighteen inches or a foot from the ground. It was an insulated wire. An electric current for electric lights was carried on it. The King Electric Company has light wires out there. Before I left the drugstore with the boy I telephoned for the doctor and then took the boy home. About an hour afterwards I saw the wire again, and the King electric light men were there with their wagon taking it up. That name was • on the wagon.”
A letter carrier also testified for plaintiff that in the afternoon of the day before plaintiff was hurt, he saw defendant’s wagon and a gang of men working' there, bossed by a young man then in the court room.
Other witnesses for plaintiff testified that the injury happened as stated above; that the night before it stormed and rained but cleared about five o’clock a. m. One witness stated he saw this wire emit sparks •at two a. m., and that the accident, happened about seven-thirty or eight; that the wire causing the injury was an insulated one, such as is used to carry electric currents; and that defendant furnished electricity in that part of the city.
The evidence of the defendant is not material to the scope of review arising on the questions presented on this appeal. Plaintiff had judgment for $9000, from which defendant duly perfected its appeal.
OPINION.
I. It is insisted for defendant that the refusal of the court to cause a voir dire examination of the plaintiff upon the request of defendant, made after plaintiff had been sworn as a witness and had proceeded to testify until he stated in answer to a question that he did not remember Ms birthday, was reversible error.
This point is untenable, unless it can be shown that the trial court abused its discretion or misconceived the law in this matter. [2 Rice on Evidence, n. 289 et seq.; State v. Scanlan, 58 Mo. l. c. 205; State v. Jefferson, 77 Mo. l. c. 138; State v. Doyle, 107 Mo. l. c. 42; State v. Nelson, 132 Mo. 184; State v. Brown, 209 Mo. l. c. 419; State v. Jeffries, 210 Mo. 326.]
In the case at bar no objection was made when the plaintiff was sworn as a witness, nor to the giving of his testimony until he had been recalled after the temporary interrogation of his father showed the date of his birth. The witness had stated that he was ten years old and had been injured three years before, when he was seven years old, before any objection to his further testimony was made by defendant. The request then made was not that the witness should be examined as to his statutory disqualification (incapacity to understand the questions or to answer them truly) but as to his comprehension of the obligations of an oath. If the latter disqualification existed, then the witness was incompetent under the common law regardless of his age. Nothing had transpired up to the time this request” was made which tended even by inference to show that the witness on the stand had no knowledge
II. Defendant insists that the peremptory instruction to find in its favor should have been given at the close of plaintiff’s case. In support of this view, it is argued by defendant that there was no evidence that the wire causing plaintiff’s injury belonged to the King Electric Company, but this contention overlooks the reasonable inferences which the jury were at liberty to draw from the statements of the witnesses, showing that this part of the city was supplied with electricity by defendant; that it was engaged at the spot where plaintiff was injured in changing poles; that it had been at work there on the evening before, and that its men and representatives removed the very wire which caused plaintiff’s hurt. If any real doubt existed on that subject, the disproof of ownership was peculiarly within the power of the defendant. No attempt whatever was made to show that it did not
III. Defendant next insists that there was no credible evidence tending to prove its negligent maintenance of the wire causing the injury, and that for this reason its demurrer to the evidence should have been sustained.
Mrs. Richter’s testimony shows that the wire was broken and suspended over the street for the space of five hours before the injury to plaintiff, as she saw it, as early as two o’clock in the morning, dropping sparks of fire; that the rain had ceased at five o’clock; that she thought the end of the hanging wire was about eighteen inches above the ground. Defendant insists that this testimony is incredible, because it says the wire in question carried a current of about two thousand volts, and that according to the known laws of electricity, this voltage was insufficient to .transmit the current from the end of the wire through an air space of eighteen inches to the ground. Defendant asks the court to affirm this law as of its judicial knowledge.
If this theory of the defendant could be scientifically established as one of the laws ot electricity, and therefore proper to be declared as within the judicial knowledge of the court, still there is no reason why that should be done in the present case, for its application at all would depend upon two questions of fact. First, the exact voltage of the electrical current carried by the wire; and, second, the distance of the end of the wire above the soil. There was no testimony
There was ample proof in the record for the finding by the jury that the defendant owned the electrical wires causing plaintiff’s injury, and that he met with the mishap where he had a right to be and without fault on his part. The law on this subject has been announced after the most careful consideration in a number of recent decisions, to the effect that it is the duty of the owner of that dangerous agency to exercise the highest degree of care in maintaining electrically charged wires. The general use of these appliances on the streets and highways which the public are compelled to use at all times, makes it the duty of the owner to exercise a degree of care commensurate with the proper protection of the public. [Geismann
IY. The charge in the petition in this case is negligent maintenance of a dangerous electrical wire. This does not bring it within the purview of those decisions where it is ruled that when specific acts of negligence are pleaded, it devolves upon plaintiff to prove the particular negligence averred.
The recovery in this case was had upon the theory that the broken wire had been in that condition, and dangerously charged with electricity, for a sufficient length of time to make its existence at the time plaintiff was hurt an act of negligent maintenance on the part of the defendant. There was testimony inferably proving these facts. The recovery was had on that theory alone, and not for some different or other unpleaded negligence. The instructions in this case submitted this issue properly. Nor are they open to the objection of assuming facts in dispute. Nor can we find any evidence that the court by refusing other instructions than those it gave for defendant excluded from the jury any issué proper for their consideration. The result is that the judgment herein is affirmed.
PER CURIAM. — The foregoing opinion of Bond, C., is adopted as the opinion of the court. All the judges concur, as per curiam opinion filed herewith.
PER CURIAM. — The court concurs in the reason- . ing of our learned commissioner as expressed in his opinion, and to that extent adopts his opinion as the opinion of the court. We are however of the opinion
If however plaintiff refuses to file such remittitur within said ten days, then this judgment shall be reversed and the cause .remanded. To this extent the opinion of our commissioner is modified and as thus modified is adopted as the opinion of the court.