Laurel Light & Ry. Co. v. Jones, 102 So. 1

102 So. 1 | Miss. | 1924

Ethridge, J.,

delivered the opinion of the court.

The appellee was plaintiff in the court below and sued the appellant for personal injuries and recovered a verdict of Jen thousand dollars. The appellant owns and operates a street car system in Laurel, Miss., and an interurban line from Laurel to Ellisville, and its cars run from Laurel to Ellisville and are operated by electricity generated at a power plant in Laurel, Miss. In-operating its line to and through Ellisville, appellant uses not only the trolley wire but also a feed wire of approximately the same size of the trolly wire and carries about tire same voltage. This feed wire is suspended on poles about twenty feet from the ground on the east side of the car tracks, and is attached to the same poles that support the braces that hold up the trolley wire. In addition to this wire, appellant has several small light wires fastened to cross-arms above this feed wire. The street car line in entering Ellisville passes along the street just west of the yard of the Ellisville public school. Adjoining the school lot is what is known as the Anderson lot. About twenty-seven or thirty yards north of the school lot and about eight feet west of the Anderson lot there are six persimmon trees. The defendant’s feed wires and electric light wires pass through several of these persimmon trees about twenty feet from the ground. On the day of the injury to the plaintiff four boys about eleven years old attending the Ellisville public school planned to shock some one. In furtherance of this pan, one of the boys got a wire, which is referred to in the record as a “hay wire,” bent one end of it, climbed one of the persimmon trees until up beyond the feed wire, dropped the bent end of the “hay wire” over the defendant’s uninsulated feed wire, and called to the plaintiff to take hold of the “hay wire,” which the plaintiff did, and at once both his hands and the beel and toes of one foot were severely burned. The feed wire of the defendant is insulated within the limits of the city of Laurel, but is uninsulated on its interurban line from the city limits of Laurel to and through the city of Ellisville. Plaintiff’s testimony shows that the muscles of three fingers of his right hand were so severely burned and drawn that the fingers were bent to the band, rendering bis right hand practically useless; that both hands were burned and the heel and toes of one foot. The testimony shows that the school children frequently climbed these persimmon trees and discovered that if they touched the feed wire they would get a shock; that they climbed the trees and touched the wire to get the shock. The trees had been climbed so much that they had been worn slick. There was some conflict in the testimony as to whether it was practical to insulate the feed wire, and there was some „ testimony for the defendant that a rusty wire such as the one used by these boys would transmit electricity from the feed wire even if it were insulated.

At the conclusion of the plaintiff’s evidence, the defendant moved the court to exclude all the testimony introduced for the plaintiff and to direct a verdict for the defendant. This motion was overruled. After the conclusion of all of the testimony the plaintiff requested a peremptory instruction, which was also refused.

The first assignment of error challenges the correctness of the ruling of the court in refusing to direct a verdict for the defendant. It is insisted by the appellant that it is not liable even though it was negligence on its part to.leave its feed wire uninsulated because it is contended that the act of the boy, Cooley, in attaching the hay wire to the feed wire, was an intervening efficient cause which constituted the proximate cause of the injury. In-the opinion of the court it was negligence for the appellant to place and maintain an uninsulated feed' wire through the branches of the trees, such as would attract boys of the age of these boys ten and eleven years of age, into the trees.

It is the settled law in this state that a person using electricity for business purposes is charged with the highest degree of care in the use of such electricity. In the case of Temple v. McComb Electric Light & Power Co., 89 Miss. 1, 42 So. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. 924, this court, speaking through Judge Whitfield, said:

“The citizens of a municipality have the right to the reasonable use of the streets, not only on their surface, but above their surface. Many uses of the streets, or the spaces above the streets, may be readily imagined in cities, where buildings are erected twenty to fifty stories high, that might not be available in any ordinary town. The corporations handling the dangerous agency of electricity are bound, and justly bound, to the very highest measure of skill and care in dealing with these deadily agencies. The appellee had the right to such reasonable use of the streets for its poles and wires as the conditions existing at the time in the community warranted. On the other hand, the appellant had the reciprocal right to what was a reasonable use of the streets on his part. The rights of the appellant and the appellee are mutual and reciprocal. Neither could so use his own rights as to wantonly injure the other. These two correlative rights, if the law is obeyed, operate in perfect harmogy with each other. There are no interferences, and no vacancies in the sphere of their harmonious movement.

“The declaration shows that the tree in which this boy was injured, by contact with an uninsulated wire, was an oak tree, a little tree abounding in branches extending almost to the ground—just such a tree as the small boys of any community would be attracted to, and use, in their play. Whether this appellee knew that this particular small boy was in the habit of climbing this tree or not, it is clear from the averments of the declaration that it did know the tree, the kind of tree, and, knowing that, knew what any person of practical common sense would know—that it was just the kind of a tree that children might climb into to play in the branches. It is perfectly idle fqr the appellee to insist that it was not bound to have reasonably expected the small boys of the neighborhood to climb that sort of tree. The fact that such boy would, in all probability climb that particular tree, being the kind of tree it was, was a fact which, according to every sound principle of law and common sense, this corporation must have anticipated. The argument that it did. not almqst suggests the query whether the individuals composing this corporation, its employees and agents, had forgotten that they were ohce small boys themselves. The immemorial habit of small boys to climb little oak trees filled with abundant branches reaching almost to the ground is a habit of which corporations stretching their wires over such trees must take notice. This court, so far as the exertion of its power in a legitimate way is concerned, intends to exert that power so as to secure, at the hands of these public utility corporations, handling and controlling these extraordinarily dangerous agencies, the very highest degree of skill and care.”

In the case of Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617, this court reiterated the ruling in the Temple case, supra. Speaking through Justice Smith, the court said: .

“Corporations, private or municipal, engaged in the business of transmitting electricity along highways, are charged with the very highest degree of care for the safety of persons lawfully using the highway. They must not only properly erect their plants, but must maintain them in such conditions as not to endanger the public. Temple v. Electric Light Co., 89 Miss. 1, 42 So. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698; Walter v. Baltimore Electric Light Co. (Md.), 71 Atl. 953. The mere fact that this lamp, with the wires attached thereto, bearing their invisible, but deadly, current, had fallen into the street, unexplained, was prima-facie evidence of negligence on the part of appellee. ‘Res ipsa loquitur.’ There being no explanation of this fact, other than that shown by the evidence introduced by plaintiff, which was to the effect.that the plant of the city was out of repair, appellant was entitled to recover, unless the jury believed that he was guilty of, and chargeable with, contributory negligence.”

At the present time by statute of this state contributory negligence is not a defense, but only goes to minimize the recovery. The injured boy in that case was ten or twelve years old when he received the injury, and the court held that the plaintiff should have been presumed incapable of contributory negligence, unless the presumption were rebutted by evidence; he should not be held to the same degree of care required of adults under like circumstances, but only to such care as he was capable of exercising considering his age, experience, knowledge, and intelligence, and evidence to rebut the presumption presents a question of fact for the jury.

In McTighe, etc., v. Johnson, 114 Miss. 862, 75 So. 600, which was a suit for damages for an injury caused by the explosion of dynamite in which a child of tender years was injured, the court held that a person using dynamite has to use the highest degree of care and that the defendant in that case was liable for an injury caused to a child who found dynamite caps left in an outhouse by the servants of the defendant which the child finding the said caps turned over to his sister, who was injured and who caused the explosion by manipulating the cap' with a hair pin. In that case it was held that a person leaving dynamite unguarded in a, vacant house should anticipate that the house would be reoccupied by some one, and if reoccupied that small children would be there to play in and about the premises and that such dynamite might result in injuring them.

Applying these principles laid down in these cases, we think that the defendant could have anticipated that an injury would have occurred from such exposed wire carrying a large voltage of electricity passing through trees near the playground of the school building. It is not necessary that the particular injury should be anticipated, but that some injury would reasonably be anticipated, and, if the negligence of the defendant was a continuing and contributing cause of the injury, the defendant is liable.

In Sioux City & Pacific R. R. Co. v. Stout, 17, Wall. 657-665 (21 L. Ed. 745), the supreme court of the United States, in one. of the turntable cases, discussing the question as to whether the defendant could anticipate an injury resulting from its negligence there involved, said:

“That the turntable was a dangerous machine, which would be likely to cause injury to children who resorted to it, might fairly be inferred from the injury which actually occurred to the plaintiff. There was the same liability to injury to him, and no greater, that existed with reference to all children. When the jury learned from the evidence that he had suffered a serious injury, by his foot being caught between the fixed rail of the road-bed and the turning' rail of the table, they were justified in believing that there was a probability of the occurrence of such accidents.”

It was the- electricity in the feed wire that attracted the curiosity of the boys. It was this current of electricity exposed to the touch and situated as it was in trees, which boys would naturally be expected to climb, and of whose propensities or habits persons of ordinary intelligence would have knowledge, that prompted these boys to attach the wire thereto for the purpose of conveying this electric current so negligently exposed and situated to the plaintiff in this case who was injured. These children did not have knowledge of the dangers of electricity and of the use of it which would enable them to appreciate and understand its harmful effects. The defendant however knew, or should have known, that it was likely to cause injury when thus situated and exposed. It was the electricity in the wire, and not the wire itself, that constituted the danger, and it was this electricity which the hoys sought to convey from the feed wire to the plaintiff for the purpose of shocking the plaintiff. The deadly agent of electricity was at the place where the injury occurred partly through the negligence of the defendant. Its negligent transmission under the circumstances was a contributing cause of the injury. The act of the hoys who -attached the wire was not the sole cause of the injury. It is true that this particular injury, would not have happened had the hoys not attached the wire to the feed wire, hut it is also true that the injury would not have happened but for the negligence of the defendant in having an uninsulated exposed wire situated like the one here involved was. So in our opinion the act of the boys was not an independent, efficient, intervening cause. The hoys here were below the age of fourteen years, and incapable of fully appreciating the dangers of the wire and of playing with it. But the defendant knew, or ought to have known, of such danger, and ought to have guarded against it either by removing the trees from proximity to the wires, or by insulating the wire, or by both.

We think there is not sufficient merit in the other assignments of error to warrant a discussion of them in view of the settled law of the state and of the instructions given the defendant, except, we will briefly discuss the assignment that the verdict is excessive.

The injured boy is about eleven years of age and suffered considerable pain, and the injury to his right' hand is permanent and will impair his usefulness through life. It is peculiarly a matter for the jury to determine the proper compensation for injuries of this kind, and unless there is something in the record which shows that the jury was biased, partial, or prejudiced in the case, and where the amount is not so large as to shock the conscience of fair and intelligent men, we will not disturb its finding. At the time of the jury the purchasing power of a dollar is one element that may he properly considered in determining the number of dollars it requires to compensate for an injury. Looking carefully through the record, sensible of our obligations to administer the law and secure the litigants fair trial, we are unable to say in this case that the verdict is excessive. The verdict is therefore affirmed.

A firmed.

Anderson, J., dissenting.