Plaintiff, a minor sues by his guardian (his father) for personal injuries sustained by reason of coming in contact with an uninsulated electric light wire of the defendant city. The suit was instituted in the circuit court of Saline county, but on change of venue it went to the circuit court of Audrain county, where a trial, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $3500.00 and the defendant appealed.
The amended petition upon which the cause was tried, after making certain formal allegations, avers that on June 17, 1911, and for a long time prior thereto, defendant, a city of the fourth class, owned and operated an electric lighting plant, by which it lighted its streets and furnished electricity to consumers, distributing the electric current over wires strung by it along its streets on poles and trees; that on one of its streets — Walnut street — defendant had strung two such wires, carrying an electric current of a high and dangerous voltage, and that at a certain designated point on this street “said two wires were by defendant negligently strung through the lower branches of a small tree; one of said wires being negligently attached to said tree about sixteen feet from the ground and the other wire being negligently swung loose through said branches about
The petition further avers that ón June 17, 1911, plaintiff, then a child under eight years of age, residing with his parents in defendant city, was attracted to the tree mentioned, “by the knowledge of a bird’s nest being in said tree, and not knowing the danger, from said wires, climbed into said tree for the purpose of examining said bird’s nest, and when in said tree his person came in contact with said electric light wires, which, at that time, were carrying more than two thousand volts of electricity, and the said current of electricity was thereby discharged into plaintiff’s body,” whereby he was seriously and permanently injured, etc.
A demurrer interposed by defendant to this petition having been overruled, defendant answered, admitting, among other things, that defendant owned and. operated the electric lighting plant and wires referred to in the petition; that two of its wires, carrying a very
The reply 'denies the new matter of the answer.
The evidence discloses that the tree mentioned in the petition was a small tree, or of medium size, the trunk being about ten or twelve inches in diameter. The upper branches thereof had previously been trimmed and it was referred to as a “bushy” tree. The height of its lower branches appears only by inference from the testimony that plaintiff’s father was able, by “jumping up” or making “a little hop,” to grasp one of the lower limbs and thus climb into the tree. One witness said that it was an elm or a maple,- another thought that it was an elm. It stood about six inches from the sidewalk on Walnut street, about one hundred and fifty feet from the house in which plaintiff lived with his father and mother on an intersecting street.
On June 17, 1911, plaintiff, being then about eight years of age, was passing this tree with his younger brother, when, according to his testimony, a boy told
It appears that plaintiff’s screams attracted the attention of his father, a railway conductor, then at home, who ran to the tree and, by jumping, grasped the lower branches thereof and thus climbed to a point near plaintiff and undertook to release the latter from the wire; hut upon grasping his son’s foot, the father re-. ceived a severe shock and was unable to accomplish his purpose. He thereupon descended and was undertaking to rescue his son by the use of a board or plank, when the hoy fell from the tree.
The evidence shows that the muscles of plaintiff’s left leg between the knee and ankle, wére very badly burned, as was also his right foot, the small toe of this foot having been burned entirely off; and that his left hand was also burned. It is clear that plaintiff’s injuries were of a very serious and painful nature, and to some extent, at least, permanent. For obvious reasons it is
The evidence shows that the wire with which plaintiff came in contact extended through the tree at a distance of about sixteen feet from the ground; that it originally had a covering, but that this had been worn off “until there was only a piece now and then on the wire.” It is said that the wire was entirely bare at and about the point where plaintiff came in contact with it. One witness testified that he saw the tree “on fire once in a while,” .from these wires; that this happened “every time it rained.” The wires carried an electric current of twenty-three hundred volts.
Defendant’s counsel admitted at the trial that the wires “were dangerous when they were put there and never had insulation enough on them to protect anybody from shock if they touched them.” Defendant adduced testimony of experts tending to show that the covering upon the wires was a mere weather-proofing, or “weather protector,” and not designed to prevent injury to persons who might come in contact therewith. And there was testimony in defendant’s behalf to the effect that it is impossible to effectively insulate wires carrying such voltage, without making the insulation so heavy as to make it impracticable to string the wires above ground. One of defendant’s witnesses, however, testified that the original covering upon these wires was intended, in part, to protect against “short circuits,” and prevent the wires from burning each other should they come in contact. And though his testimony appears to be somewhat contradictory, he said that if this covering had been on the wire at the time of the accident it would not have burned plaintiff’s leg.
It is contended that the court erred in refusing tó peremptorily direct a verdict for defendant. And in this connection it is argued that the petition is fatally defective; that it charges no facts constituting negligence on the part of defendant, in “that it neither alleges that defendant knew or should have known that children
That the evidence sufficed to make the case one for the jury, we think cannot be well doubted. It is conceded that' under the established rule of decision it was the duty of defendant to use the highest degree of care to
“Several cases are cited by plaintiff, and we think that such declare the law correctly, that electric companies stringing high power wires' along streets,, and alleys through or in close proximity to trees of such character and location that boys, following their natural adventure some tendency, are apt to climb same, must use the high care imposed on them to keep such wires in a safe condition. The high degree of care required of persons handling so dangerous an agency as electricity applies, we think, to the question of anticipating that children, and especially boys, are likely to indulge in the sport of climbing trees and going into somewhat dangerous and unusual places.
“Curtis’ Law of Electricity, section 512, states the law thus:
“ ‘An electric company, maintaining a dangerous wire through or near, a tree, is bound to anticipate that persons may lawfully climb the tree, and it
“The cases cited there- and by the plaintiff fully sustain this proposition. [Mullen v. Wilkes-Barre Gas & Electric Co., 229 Pa. 54, 77 Atl. 1108; Benton v. North Carolina Public Service Co., 165 N. C. 354, 81 S. E. 448; Philbin v. Marlborough Electric Co., 218 Mass. 394, 105 N. E. 893; Temple v. McComb City Elec. Light & Power Co., 89 Miss. 1, 42 South. 874, 11 L. R. A. (N. S.) 449, 119 Am. .St. Rep. 698, 10 Ann. Cas. 924.] This last ease is the leading case on the question, and the doctrine stated has received the approval of the authors of the able notes to this case of 10 Ann. Cas. 924, and 11 L. R. A. (N. S.) 449, where such doctrine is fully discussed and the cases reviewed.”
This statement of the law is, we think, at any rate, none too favorable to plaintiff, when applied to the facts of this case. In that case, however, the boy did not climb the tree, but attempted to pass into the upper part thereof from the top of the roof of ,a nearby building in process of construction, fell and came in contact with the defendant’s wires. In view of these circumstances a majority of the court held that no recovery could be.had. Robertson, J., however, dissented as to this, and at his request the cause was certified to the Supreme Court, where it is now pending.
In this connection appellant has cited a number of cases to which we need not refer. Nearly all of them involve facts so far different from those here present as to make them inapplicable, in our opinion; and in so far as any of them may be said to conflict with the rule stated above, we are unwilling to follow them.
This brings us to the contention that defendant’s negligence was not the proximate cause of the injury. In support of this contention appellant strongly re
It is unnecessary for us to express an opinion aa to the correctness of the result reached by the majority of the court in the Williams case. In view of the facts here involved that ruling is not persuasive. Indeed in the majority opinion it is said: “If . . . plaintiff had, in a manner natural for a boy of his age, and therefore one to be anticipated, climbed this tree or passed from the house to the tree, and in so doing came in contact with defendant’s dangerous wires, we would affirm his right to recover for his injuries.”
In Elliot v. Allegheny Co. L. Co., supra, the plaintiff, a painter, fell from a ladder, and, in falling, grasped an uninsulated electric light wire. It was held that the fall from the ladder was the proximate cause of the injury. In Geroski v. Allegheny Co. L. Co., supra, the plaintiff, in attempting to raise a flag upon a pole by means of a wire, stepped backward so as to bring this wire in contact with an uninsulated electric wire of defendant. This was held to-be a casualty which defendant could not reasonably have anticipated. Nothing in either of these cases has caused us to doubt plaintiff’s right to recover in this action. The argument that the breaking of the limb was the proximate cause of the accident we regard as unsound. The injury appears to have been the natural and probable consequence of the negligent act of defendant in maintaining uninsulated and highly dangerous wires through this tree, and is therefore properly referable thereto as being the proximate cause thereof. It is not essential that defendant could reasonably have anticipated that the very injury would occur, or that it would happen in the precise manner in which it did happen. It is sufficient if the circumstances are such that defendant ought to have anticipated that some injury would be likely to result from its negligence, that plaintiff’s
We think that the demurrer was well ruled.
An instruction given for plaintiff is assayed. It authorized the jury to find that “said tree, considering its size and location was an object likely to attract children, and that said children might climb on and up into said tree,”, and that “defendant knew, or by the exercise of ordinary care on its part could have known, that children might be attracted to said tree and climb on and up into' said tree. ” It is argued that in this respect the instruction is beyond both the pleading and the evidence; but from what we have said above it must be apparent, we think, that this contention has no merit. The instruction is otherwise criticised, but it is quite clear that it is not in any event fatally defective.
The errors assigned to the action of the court in refusing certain instructions offered by defendant are disposed of by what we have said above, in so far as they would warrant discussion.
It is said that the court erred in permitting plaintiff’s counsel to argue to the jury that defendant, in stringing its wires, ought to have cut the limbs from the tree, and that defendant had the. right to do so. But. an examination of the abstract reveals that upon defendant’s objection to the remark of plaintiff’s counsel in question the court told plaintiff’s counsel to confine his argument to the facts disclosed by the evidence.
We find no reversible error in tbe record, and tbe judgment is therefore affirmed.