49 So. 617 | Miss. | 1909
Lead Opinion
delivered the opinion of the court.
Appellee owned and operated an electric light plant, by means of which its streets were lighted. On the evening of March 8th, or the morning of March 9th, between the hours of eleven o’clock p. m. and four o’clock a. m., one of the lamps used in lighting the streets fell, and was lying in the street on the morning mentioned, when, at about six o’clock, appellant, a boy ten or twelve years old, came in contact .with one of the wires, which was then attached and conducting electricity to the lamp, and was injured in the head and hand, necessitating the amputation of the latter. Appellant testified that he was walking along the street, and did not see the wire, or know it was there, until he came in contact with it. The evidence of appellee showed that appellant and another boy were walking along the street, when they observed the lamp, and appellant proposed that they .go over to it, and “see if there was a bird’s nest in it;” that on reaching the lamp appellant said, “I bet you won’t touch this wire,” and then touched it himself, thereby receiving the injury. This lamp was not on the sidewalk, but was in the middle, and at the intersection, of two streets. There was a verdict and judgment for the city; hence this appeal.
In determining the city’s liability, there was only one question for the jury to decide, and that was whether appellant was guilty of and chargeable with contributory negligence. Corporations, private or municipal, engaged in the business of transmitting electricity along highways, are charged with the
Appellant, on account of his tender age, is prima facie presumed not to be possessed of sufficient discretion to make him guilty of contributory negligence for his failure, if such there was, to exercise due care for his safety. This presumption may be overcome by proof, in which event it becomes a question of fact for the jury. Even when chargeable with contributory negligence, a child of the tender age of appellant is not held to the same degree of care as is required of adults under similar circumstances, but only such care as it is capable of exercising, taking into consideration its age, experience, knowledge, and intelligence. Instructions Nos. 3, 5, and 6, granted appellee, withdrew altogether from the jury the question of whether appellant, by reason of his tender years, was possessed of sufficient discretion to permit his being charged with contributory negligence. This principle is referred to in instruction No. 3; but by it the jury were told that appellant was chargeable with contributory negligence “if he was an intelligent boy for
Reversed and remanded.
Concurrence Opinion
delivered tbe following specially concurring opinion.
I concur in tbe reversal of tbe judgment in this case, but do not think tbe opinion goes far enough. Tbe secret and deadly agency which produced tbis injury to tbis unfortunate little bo'y was electricity, a force little understood by men of experience, and not comprehended at all by a child. I think tbe facts warrant tbe statement that tbe city bad negligently allowed tbis lamp to fall in the streets, and but for tbis negligence the fallen lamp, with its deadly wires, would not have stood as a temptation to tbe boy to touch them. Tbe injury which be received resulted from tbe negligence of the city, and caused tbe boy the loss of bis band, thereby maiming him for life. This court said, in tbe case of Temple v. McComb City Electric Light Company, 89 Miss. 1, 42 South. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698: “Tbis court, so far as tbe exertion of its power in a legitimate way is concerned, intends to exert that power so as to secure, at the bands of these public utility corporations, handling and controlling these extraordinarily dangerous agencies, tbe very highest degree of skill and care.”
The city claims that it is not liable for this injury, because the boy was guilty of contributory negligence, and voluntarily, by touching the lamp, brought on the injury complained of. I do not think, under the facts of the case, considering the age of the boy, and further considering the. nature of the agency producing the injury, that there is any question of contributory negligence involved, or that such question ought to have been submitted to the jury. I concede that in many instances a child of this age may be guilty of contributory negligence, and that in many cases it is a question of fact which should go to the jury; but I do not think, under the facts of this case, where the injury is produced by a child so young voluntarily coining in contact with a live -wire, negligently allowed to drop into the street, innocent in appearance, but yet charged with this mysterious and deadly current, the dangers of which are neither manifest nor capable of being comprehended by a child of his years, any sort of contributory negligence on the child’s part can or ought to excuse from liability. A boy is venturesome and daring by nature, and this known habit should be recog nized, and the boy be protected from being lured to his death by wires in the street. Even if this boy had lived in a municipality having an electric light plant all" his life, it is impossible that he could have understood anything about it, or have supposed that the apparently harmless lamp in the center of the street by his mere touch would have inflicted upon him the injuries which he received. Children must be protected from
On the facts of this case, I think a peremptory instruction should be given as to the liability of the city when this case is tried again, unless it plainly appears that the falling of this lamp or the injury to the boy was one of inevitable accident.
