81 Fla. 743 | Fla. | 1921
Lead Opinion
To a judgment against the plaintiff in error in the Circuit Court for Monroe County in favor of Annie Roberts for damages for the wrongful death of her son Clifton Roberts in the sum of five thousand dollars a writ of error was taken by the Key West Electric Company, defendant in the court below.
On a corner of Division and' Center Streets in the City of Key West a wooden store building consisting of two stories is located; in the rear of the building and attached to it is a shed room the roof of which is a few feet below the window sills of the second story rear window. The first floor of the building and the shed room is occu
The electric wires from the pole enter the building near the front and very close to the eaves or gutter. These wires sag slightly and during a wind rub against the metal eaves or gutter. The friction thus produced wore away the insulation of both the wires for several inches.
On the 11th day of October, 1919, Clifton Roberts, the son of the plaintiff, and whose age is variously stated to have been from nine years to fourteen, went to the house on Division and Center Streets to play with the Cremata
About a month- before the accident a gale or hurricane of unusual violence accompanied by heavy rain occurred' in Key West, which, according to Mr. Mesa, caused the wires running from the electric pole to the house tó sag about six inchés so that a slight breeze would cáuse them to rub against the metal roof or gutter and it was the Me
The declaration as filed on December 1st, 1919, contained three counts. The, first count alleged negligence in permitting the wires to rub against the metal roof and wear away the insulation and cause to be made a direct contact of the wires with the roof. The second count alleges the negligence of the defendant to consist in the same act of omission, and so does the third count. The last alleged that the omission of the defendant to place good and sufficient insulators or brackets on the
A motion was made to amend the declaration by requiring the plaintiff to allege what duty the defendant owed to Clifton Roberts and his mother, what act on the part of the defendant, whether of commission or omission, constituted negligence on its part, and to set out facts that would enable the court to determine whether Clifton Roberts was “lawfully” in a place where he had a right to be when the accident occurred. A demurrer was also interposed to the three counts of the declaration; The motion for amendment and the demurrer were both overruled. These orders of the court are made the bases of the twenty-first and twentieth assignments of error. The twenty-first assignment of error is not argued, so it will not be considered.
The first assignment of error is based upon the court’s denial of the motion for a new trial, one of the grounds of which was that the court erred in denying the defendant’s motion for a directed verdict in its behalf at the conclusion of the testimony.
Counsel for plaintiff in error express the thought that the evidence adduced by the plaintiff at the trial being weaker than the allegations of the declaration the case may be disposed of on its merits. The evidence certainly does not support the allegation that the boy Clifton
Occasionally Mrs. Cremata would give the boy something to eat, at which time the boy would go in the house, get what was given him and then leave. On one occasion several months, perhaps a year, before, Mrs. Cremata asked him to go out upon the roof and get a towel that-had blown out there from the window.
Mr. Vegue who rented the building from the Haskins’ heirs and occupied the first floor and the shed for his place of business, had not given the Roberts boy permission to go upon the roof. Upon the day of the accident, the boy was a mere trespasser upon the premises of the people occupying the house. There was neither express nor implied authority for his conduct in going upon the roof. It was not a place which attracted children as a play ground. Even as a playmate of the children he seemed to have forfeited his welcome and their hospitality. He came to the place that day without invitation and apparently in violation of his mother’s instructions who had sent him to her brother’s house. When he arrived at the Vegue or Cremata place, he began chasing a
Under these circumstances what was the measure of the defendant’s duty toward the boy, or any one in his situation ? The accident occurred in the day time about 12:30 P. M. But whether in the day time or the night time he was none the less a trespasser. Assuming that the company, the defendant below, was guilty of negligence in not putting brackets and' insulators on the house upon which to carry the wires through which the current was transmitted for lights, after the roof had been changed from a wooden roof to a metal one, or in not observing that the friction of the slack wires upon the metal eaves or gutter had worn away the insulation so that during a breeze, the wires would be blown occasionally against the edge of the roof and momentarily make a connection through which the electric current might pass to the roof and thence to the ground through the body of a person who might be unlawfully upon the shed roof at the moment, that a gust of wind carried the wires against the eaves of the roof or gutter and at the same moment touch a gas pipe which entered' the ground', can it be said as a matter of law that the company was bound to exercise the same degree of care to prevent injury to such a person
There was no actionable negligence on the part of the company toward the boy because the company under the-circumstances did not owe to the boy, or any one situated as he was at the time of the accident, that high degree of care which would have required the company to have discovered the worn insulation and occasional contact of the wires with the roof.
There is also- another reason why the judgment should be reversed, and that is because of the variance between the allegation and the proof as to the boy’s being lawfully at the place where the aceident occurred.
It is unnecessary to discuss the other assignments of error.
The judgment is reversed.
Browne, C. J., and Taylor, Whitfield and West, J. J., concur.
Concurrence Opinion
concurring.
Even if the electric company should have known that the insulation on the wire had been impaired by rubbing against the eaves or gutter of the metal roof when the wind would blow the wire toAvards the roof, so that the electric current would pass along the metal roof to the metal pipes touched by the decedent, the electric company should not in reason be required to anticipate that any one would be upon the roof under the circumstances shown in this case. See principles discussed in 213 U. S. 1. The burden was on the plaintiff to show a breach of duty to the decedent that proximately caused the death. See 20 C. J. 380.
In Temple v. McComb City Electric Light & Power Co., 89 Miss. 1, 42 South. Rep. 874, 10 Ann. Cas. 924, it appeared that the defendant electric company “had negligently removed the insulation from its wires at a place Avhere said wires passed through a tree which had numerous branches extending almost to the ground, and in Avhich plaintiff:and other children played.” A cause of action was stated. 20 C. J. 353.
In Benton v. North Carolina Public Service Company, 165 N. C. 354, 81 S. E. Rep. 448, the long continued dangerous condition of the wires in the tree with attractions to boys should have been knoAvn to the defendant company. Recovery was allowed. See also Mullen v. Wilkes-Barre G. & E. Co., 229 Pa. 54, 77 Atl. Rep. 1108; Daltry v. Media Electric Light, Heat & Power Co., 208 Pa, 443,
In Clements v. Louisiana Electric Light Co., 44 La. Ann. 692, 11 South. Rep. 51, 16 L. R. A. 43, the decedent was properly on the roof where the wires were improperly placed, and not property insulated. No contributory negligence appeared and damages were recovered'. See also 46 L. R. A. 745; 34 L. R. A. 812; 164 Mass. 492.
Elements essential to liability were not shown in this case. See 61 Fla. 293; 63 L. R. A. 469; 52 L. R. A. (N. S.) 1170; 49 South. Rep. 772; 20 C. J. 351; 9 R. C. L. 1209; 115 Me. 361; 165 N. Y. Supp. 852; 89 Conn. 286; 166 Fed. 651.