176 S.E. 862 | W. Va. | 1934
Densil Duty, a boy of eleven years of age and plaintiff's decedent, lost his life on the 27th day of September, 1932, by coming in contact with a high tension electric wire carrying 6600 volts owned and maintained by the defendant, Appalachian Electric Power Company, and stretched across a public bridge over the Guyandotte River at Chapmansville in Logan County. The bridge carried both vehicular and foot traffic and was in three spans with a steel superstructure. The largest span was in the middle, a smaller span was on the Chapmansville side of the bridge, and the smallest span, and the one on which the boy was injured, was at the end of the bridge away from Chapmansville. The electric line was stretched on wooden cross-arms that extended out from the superstructure or framework of the bridge, on the outside, between seventeen and eighteen feet above the bridge's floor. These arms carried the wire, at some *452 points seventeen inches from the steel superstructure of the bridge, and at the point where the boy came in contact with the wire, a distance of 26 inches from the superstructure. The testimony shows that plaintiff's decedent resided with his parents on the side of the river opposite Chapmansville, and that he, together with some thirty or forty other children, was accustomed to cross the bridge several times daily in going to school in Chapmansville. On the day that he came in contact with the wire, he, together with one or two other boys, climbed into the superstructure of the bridge. The Duty boy was climbing a vertical beam or truss of the bridge, the dimensions of which do not directly appear in the evidence, but which was made of two flat and solid steel uprights connected at the edges by diagonal lattice work of steel strips which formed a footing in the triangular opening between the steel strips and side pieces that it was possible to use in climbing it. It is inferable from the testimony that the Duty boy was climbing the beam by putting his arms partially around it as he ascended and that when he reached the approximate level of the wire, he either slipped or fell against the wire or put out his hand and touched it in his climbing. At any rate, he made contact with the wire by touching it with his left hand.
There is direct testimony that on two or three occasions the boy had been warned of the danger of climbing the superstructure of the bridge, both on account of the danger inherent in that sort of play and on account of the danger that existed from the presence of the electric wires. There is evidence also that children had, for a number of years, been accustomed to climbing onto the superstructure of the bridge, and that on several specific occasions witnesses had seen boys playing in the superstructure of the bridge.
This action was brought in the circuit court of Logan County, tried to a jury, a verdict in favor of the plaintiff in the sum of $7,000.00 was rendered, and from the judgment pronounced on that verdict, this writ of error is prosecuted. There are but two assignments: *453
First, that the record does not disclose primary negligence on the part of the defendant.
Second, that the record does disclose contributory negligence on the part of plaintiff's decedent, and that in either case, the trial court should have directed a verdict in favor of the defendant.
A point is raised as to an instruction given on behalf of the plaintiff, which told the jury in effect that if the defendant knew, or by the exercise of reasonable care should have discovered, that children were accustomed to playing in the superstructure of the bridge, that it thereupon became its duty to anticipate that they might do so and to either safely insulate or remove their wires from danger of coming in contact with children so playing. This assignment, however, is interwoven with the assignment predicated upon the lack of negligence on the part of the defendant, and the proposition of law involved in the instruction will be discussed in connection with that assignment of error.
We are of the opinion that the case cannot be reversed upon any of the assigned grounds of error.
As to the matter of the defendant's primary negligence, we do not believe that it is necessary to decide whether the case falls within that class of cases wherein by reason of the circumstances shown, defendant electric company must have anticipated that persons would go about their wires, whether or not it is shown that any persons have actually gone there. In the case of Runyan v. Water Light Co.,
In our opinion, there is little difficulty on the question of contributory negligence. The presumptions are against its existence in the case of a boy only eleven years of age. It is perfectly true that the defendant introduced proof tending to show that it might exist in this case. Defendant had a fair chance with this proof before the jury and lost. We think that makes an end of the matter.
Among other cases relied upon by counsel for plaintiff in error on the question of contributory negligence is that ofAustin v. Public Service Company,
Another case relied upon by counsel for plaintiff in error is that of Graves v. Washington Water Power Co.,
Another case relied upon by the plaintiff in error is that ofState ex rel. Kansas City Light Power Co. v. Trimble, (Mo.) 49 A.L.R. 1047,
Defendant urges that contributory negligence results as a matter of law because it says that this boy was on the bridge in violation of a statute. Code,
For the reasons stated, the judgment of the circuit court of Logan County is affirmed.
Affirmed.