Yazoo City v. Birchett

42 So. 569 | Miss. | 1906

Calhoon, J.,

delivered the opinion of the court.

On both sides this case has been argued orally and by brief with thoroughness. It is needless to get outside the written arguments for authorities. The instructions on either side present every possible view of the law which could be fairly contended for. There is nothing to be said for either, as to the negligence of the city or the contributory negligence of the deceased, which has not beeii urged below and here. The jury had the whole case. There was testimony going to show gross negligence on the part of the city, and testimony going to show that the deceased did no more than an ordinarily prudent man might do. When a city embarks in the management of any utility for profit, it is liable, or not liable, by precisely the same rules applicable to private corporations or individuals conducting such enterprises. The fact that the city was the owner' probably explains the serious tone of the defense. IVIany times the importance of a party makes the gravity of the case.

On the verdict we must see, as best we can, what was the observation of the jury on the facts shown. They saw that telephone wires- were not hurtful on contact; that Birchett went to correct a trouble with Birdsall’s telephone connection; that he went directly to the telephone pole from which that connection came, and promptly ascended it, and was killed by a circuit formed by what should have been a cold and harmless guy wire with a high-voltage death-armed wire of the city, negligently put in circuit with it, which he did not see, or, if he did see, was not apparently dangerous where he was. There was no danger from the connection of the incandescent wire east on North alley with the guy wire there, if it had not been in connection with the guy wire south on Washington street at the top of the city’s pole. A process of elaborate inductive reasoning is not to be attributed to a man in the discharge of ordinary duty in an ordinarily harmless function. The attachment of the hay wire to the step of the telephone pole, of which all seem •ignorant, may have been the fact without which the calamity would not have occurred; but, all the same, the negligent current on the guy wire was the proximate cause of the death, and the jury did not hold Birchett to a strict scrutiny of every step he took up the pole.

The reading by counsel of the instructions refused to the other side, under the circumstances, if error at all, was not objected to at the time. The other two matters in this argument, if reversibly hurtful ordinarily, are not so here, because withdrawn and the jury admonished. Jurors are not to be regarded as senseless objects.

If anything could result from Birchett’s seeing the trouble on North alley, there was very strong testimony that he could not have seen it.

Affirmed.