Beckwith v. City of Malden

Decision Date26 June 1923
Docket NumberNo. 3333.,3333.
Citation253 S.W. 17,212 Mo. App. 488
PartiesBECKWITH v. CITY OF MALDEN.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Junius Beckwith, a minor, by his next friend, against the City of Malden. Judgment for plaintiff, and defendant appeals. Affirmed.

T. R. R. Ely and George Smith, both of Kennett, for appellant.

Casper M. Edwards, of Malden, and Sam M. Phillips, of Poplar Bluff, for respondent.

BRADLEY, J.

Plaintiff, a boy eight years old, sued by next friend to recover for injuries caused by coming in contact with a highly charged wire owned by defendant. The cause was tried before the court and a jury, plaintiff recovered, and defendant appealed.

Plaintiff alleged that the defendant negligently permitted an uninsulated printery electric light wire carrying 2,300 volts to pass through the branches of a tree easily accessible and attractive to children, and that plaintiff was injured while up in said tree by coming in contact with said wire. The answer was a general denial, and a plea of contributory negligence.

Defendant city owns and conducts its light plant. Not far from the plant primary wires carrying 2,300 volts each passed through the branches of a sycamore tree from 18 to 24 inches in diameter and about 30 feet high. The wires were about 18 feet from the ground. A board fence 4 feet high stood about 2 feet north of this tree. The tree stood on the right of way of the St. Louis Southwestern Railway Company, at a place generally used by the public as a passageway, but was not a dedicated street or alley. The first limb was about 9 feet from the ground, but below that was the stub of a limb which had been sawed off. Plaintiff lived with his mother about 500 feet north of the tree. On August 10, 1920, the day plaintiff was injured, he and other boys were playing "Chase," and plaintiff climbed upon the board fence, and thence into the tree. He climbed up where the wires were and slipped.

"Q. What did you do when you got up there? A. Slipped and started to fall. I then started to grab a limb. I grabbed hold of an electric light wire. No, sir; I did not know the wire was up there before I went up there. No, sir; no one ever told me that it was there before I went up. When I slipped and started to fall, I thought I was grabbing hold of a limb. I did not know the wire was there until I grabbed hold of it."

There was evidence tending to show that the defendant city knew through its officers that the insulation on the portion of the wires passing through this tree had rubbed and whipped off by contact with the branches, and that such had been the condition for a long time prior to plaintiff's injury. Defendant offered no evidence, but stood on its demurrer at the close of plaintiff's case.

Defendant assigns error on the overruling of its demurrer, on the instructions, the admission of evidence, and an alleged excessive verdict.

Before proceeding to the merits, we will dispose of plaintiff's contention that there is nothing before us but the record proper. This contention is based on the fact that the abstract of the bill of exceptions before us does not show an exception to the order overruling the motion for a new trial. Absent our construction of Rule 15 (181 S. W. vi), plaintiff would seem to have reasonable ground upon which to base his contention. In Walls v. Tinsley, 187 Mo. App. 462, 173 S. W. 19, we liberally construed Rule 15. There it is said:

"Under our rules, if the abstract of the record, taken as a whole and including what is shown by the bill of exceptions, shows the timely filing and overruling of the motion for new trial and an exception saved thereto and it is therein stated that the appeal was duly taken and the bill of exceptions duly filed that is sufficient."

Robertson v. Robertson, 178 Mo. App. 478, 163 S. W. 266, by this court, is substantially to the same effect.

Plaintiff's contention cannot be sustained for two reasons: First, because the exception mentioned is shown in the abstract of the record proper. This is not a proper place to show such exceptions, but under Rule 15 it is permissible. In the second place, plaintiff does not say as a matter of fact that the bill of exceptions filed with the clerk of the trial court does not show an exception to the order overruling the motion for a new trial. It was conceded on argument that the bill of exceptions filed with the clerk of the trial court does in fact show such exception. Under our Rule 15 and our construction thereof in the Walls and Robertson Cases, supra, we rule against plaintiff's contention. We might say here that we have, subsequent to the submission of this case, amended Rule 15 by striking out the proviso thereto, and adding a new proviso in the exact language of the second paragraph of Rule 13 of our Supreme Court (228 S. W. viii).

Plaintiff also moved to dismiss because defendant did not file its bill of exceptions in time, and did not serve abstracts and brief in time; but this point was abandoned at the argument.

Defendant contends that its demurrer to the evidence should have been sustained, because, as it is claimed, the evidence does not show that the tree was attractive or that it was easy to climb, and that the facts do not justify the inference that defendant city should have anticipated that boys would likely climb this tree and be injured by uninsulated wires. Defendant further contends that the evidence does not tend to show that the officers of the city had or should have had knowledge of the condition of this wire. By using the fence this tree was easily climbed. The fence was 4 feet high. The lowest limb was 9 feet from the ground; but below that, how far is not stated, was the stub of a limb. Plaintiff climbed the tree without difficulty. As to the tree being attractive to children there is no direct evidence in the record. It stands among a number of other trees, some of which are over in the yard of Mr. Morris north of the board fence, and some just outside as is the tree in question. There is no evidence that boys had theretofore climbed this particular tree, but there was evidence that some of the trees over in the yard had been frequently climbed by boys. Mr. Morris testified that his children and others frequently played in the vicinity of this tree. There was substantial, and considerable evidence, and not contradicted, tending to show that the defendant had knowledge that the insulation was off these wires where they passed through these trees, and had been for several months before plaintiff's injury. The trees were in plain view of the light plant, and not over 300 feet away, and there is evidence that it is less than 300 feet. The former superintendent of defendant's plant, having reference to the tree plaintiff climbed and the others near by, through which the light wires passed,

"These trees had given us trouble at the plant, you might say practically ever since I was there. Yes, sir; this tree had given me trouble at the plant, about four trees had. In the springtime when the leaves had come out and the wind would blow, the limbs would bend over and cause a short, and we would have to go up and take those limbs off so they wouldn't touch our wires. Yes, sir; that is the way that I found out that the insulation was off these wires. Yes, sir; the insulation was off during the entire time I was superintendent. No, I was only superintendent about 18 months, but worked there about 3 years and 8 months. Well, every time there came a rain in the spring of the year we could see sparks in those trees; that meant to me that the limbs were coming in contact with those wires. Yes, sir; that indicated to me that the insulation was off the wires."

This witness testified on cross-examination that a "right smart while" before plaintiff was injured he called to the attention of the mayor and board of aldermen the fact that "the insulation was off those wires." However, he further stated that he did not call their attention to "that particular place," but to the condition all over town.

Those who handle electricity, if reasonably chargeable with knowledge, of facts making it reasonably probable, that persons may lawfully come into close proximity to the wires for purposes of business or pleasure, are obligated to use every precaution to insulate the wires at such places and to use the utmost care to keep them insulated. Williams v. Gas & Electric Co., 274 Mo. 1, loc. cit. 8, 202 S. W. 1, and cases there cited. In the Williams Case the court gave recognition and approval of the rule of law that a company stretching electric wires in a city...

To continue reading

Request your trial
23 cases
  • Thornton v. Union E.L. & P. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • June 5, 1934
    ......Missouri & Kansas Tel. Co., 216 Mo. 601, l.c. 609, 116 S.W. 526; Brubaker v. Kansas City Elec. Light Co., 130 Mo. App. 439, l.c. 447, 449, 110 S.W. 12; Leuhrmann v. Laclede Gas Light Co., ...1136, 287 S.W. 1031; Godfrey v. Kansas City Light & Power Co., 299 Mo. 472, 253 S.W. 233; Beckwith v. City of Malden, 212 Mo. App. 488, 253 S.W. 17; Rogers v. Meyerson Printing Co., 103 Mo. App. ......
  • Afton Electric Co. v. Harrison
    • United States
    • United States State Supreme Court of Wyoming
    • February 18, 1936
    ......L. R. 1351; Whetherby v. Electric. Company, (Vt.) 25 L. R. A. (N. S.) 1220; Reddy v. City, (S. D.) 220 N.W. 851; Salt River Valley Water. Users' Association v. Compton, (Ariz.) 8 P.2d ...204;. Heller v. New York, 17 A. L. R. 823; Stedwell v. Chicago, 17 A. L. R. 829; Beckwith v. Malden,. (Mo.) 253 S.W. 17. The rule that ordinary persons must. all know danger attends ......
  • Stark v. Holtzclaw
    • United States
    • United States State Supreme Court of Florida
    • July 25, 1925
    ......North Carolina Public-Service Corporation, . 165 N.C. 354, 81 S.E. 448; Temple v. McComb City Electric. Light & Power Co., 89 Miss. 1, 42 So. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. ...486, 130 N.E. 729, 17. A. L. R. 829, and notes page 837; 29 Cyc. 447; Beckwith. v. City of Malden, 212 Mo.App. 488, 253 S.W. 17;. Godfrey v. Kansas City Light & Power Co., ......
  • Bridges v. Arkansas-Missouri Power Co.
    • United States
    • Court of Appeal of Missouri (US)
    • December 8, 1966
    ...... along a meandering route (concerning which there were conflicts in the testimony) over city streets and then either through an old orchard and a nine-acre cotton patch or along the right of ...at 559. Consult also Beckwith v. City of Malden, 212 Mo.App. 488, 493, 253 S.W. 17, 19, where plaintiff climbed from a board ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT