City Electric Street Railway Co. v. Conery

• Citation: 33 S.W. 426,61 Ark. 381
• Parties: CITY ELECTRIC STREET RAILWAY CO. v. CONERY
• Decision Date: 14 December 1895
• Court: Supreme Court of Arkansas

33 S.W. 426

61 Ark. 381

CITY ELECTRIC STREET RAILWAY CO. v. CONERY

Supreme Court of Arkansas

December 14, 1895

Appeal from Pulaski Circuit Court.

ROBERT J. LEA, Judge.

Judgment affirmed.

J. M Rose and J. F. Loughborough, for appellant.

1. He who seeks recovery for an injury caused by the alleged negligence of defendant must prove, not only that he has suffered loss by defendant's act or omission, but also that the act or omission was a violation of a duty required of him. 36 Ark. 607. There is no proof that White's wire touched the wire of the street railway company at all, or that a current was communicated to it from the company's wire. But, if injured by a current from the company's wire, no negligence was proved. An electric railway is not bound, in the absence of statutory requirement, to maintain guard wires, so as to prevent telegraph wires from falling on the trolleys. Keasby on El. Wires, p. 167. The happening of an accident is not evidence of negligence to go to a jury. Whart. Negl. sec. 421. No contact of wires was shown; no negligence was shown; no evidence that the telephone wire was in dangerous condition.

2. Even admitting White's negligence, his negligence was the proximate cause of the injury, and there is no causal connection between his negligence and that of the street car company. Whart. Negl. sec. 139; Ib. sec 143; Ib. sec. 155; Booth, St. Ry. Law, sec. 134; 56 Ark. 271; 55 id. 521; Whart. Negl. 134; 33 P. 403.

3. The court erred in its instructions. Cases supra. 24 Ark. 251.

H. F Auten for appellee.

1. The evidence amply supports the verdict. Failure to maintain guard wires was negligence per se. 89 Tenn. 421; 14 S.W. 863.

3. There is no error in the instructions.

4. The doctrine of primary and proximate cause does not apply; but if it does, appellant did not ask a charge to the jury on this point, and cannot now complain.

OPINION

BATTLE, J.

The City Electric Street Railway Company is a corporation, and operates a street railway in the city of Little Rock, in this state, by means of electricity. Its railway traverses an extensive territory, and extends through many streets. One of the appliances used in its operation is a trolley wire, suspended by means of poles and charged with strong currents Of electricity. A part of the railway was constructed in Fourth street. Above it were suspended the trolley wires. Intersecting Fourth street at right angles is Cross street, running north and south, while Fourth runs east and west. At the southwest corner of Fourth and Cross, O. E. White resided. Three blocks distant, an the corner of Markham and Cross streets, was a drug store, which he owned and occupied. The residence and store were connected by a private telephone wire, which was suspended by passing it through loops of wire attached to insulators on poles, and was extended over the trolley wire of the street railway at Fourth and Cross streets, its distance above it, at the lowest point, being between six and twelve feet. In the course of time the telephone wire began to sag, sagged two or three feet between poles, and was finally broken near the corner of Markam and Cross by two electricians attempting to make it straight. The broken end was tied to a post, and in a few days became untied, or was again broken at or near the same place, and hung suspended in the street, the north end resting upon the ground. Two days afterwards, Arthur Conery, a lad of about ten year,--playing, perhaps, in the street in front of the home of his father and mother,--stepped upon it, and was shocked, thrown down, and burned. His mother, hearing his cries, went to his rescue, and, attempting to relieve him, was likewise thrown down. A workman, laboring near by, next went to his assistance, and cut the wire and relieved him. After this he sued White and the railway company for damages, recovered a judgment for $ 300, and the company appealed.

Sufficiency of evidence of negligence.

The appellant denies that the evidence shows that the trolley communicated to the telephone wire the electricity with which it was charged when appellee was shocked and burned. It says that it was not proved "that there was any contact between the two wires." It is true that there was no positive evidence to that effect, but there was only one other electric wire in that vicinity, and it was an "electric light wire," which was suspended above the telephone, and there is no evidence that it ever sagged or fell sufficiently low to come in contact with any wire below it. According to the evidence, there is only one reasonable theory upon which the condition of the telephone wire at the time appellee was injured by it can be accounted for, and that is that it came in contact with the trolley wire, while down, and received the electricity with which it was charged at the time. This fact is sufficient to sustain the verdict in that respect.

Duty of electric companies to prevent escape of electricity.

This fact being established, the next question is, upon what duty of the appellant to the appellee can this action be based? The answer to it is, upon the duty enjoined by the rule which requires every one to so use his property as not to injure another. The applicability of this rule may be shown by many illustrations. One is where an owner of a vicious animal accustomed to do hurt, knowing his habits, negligently allows him to escape. He is responsible for the mischief the animal does, because it was the duty of the owner to keep him secure. So it is lawful for any person to gather water on his own premises for useful and ornamental purposes, but it is his duty to construct the reservoirs for that purpose with sufficient strength to retain the water under all circumstances which can reasonably be anticipated, and afterwards to preserve and guard them with due care. "For any negligence, either in construction or in subsequent attention, from which injury results, parties maintaining such reservoirs must be responsible." It is the duty of railway companies to keep their tracks and rights of way free from inflammable matter, so as to prevent the communication of fire from their locomotives to adjoining property, and for a failure to discharge this duty they are liable for injuries occasioned by the neglect.

This rule applies with equal force to electric companies. They are bound to use reasonable...