Beckwith v. City of Malden
Decision Date | 26 June 1923 |
Docket Number | No. 3333.,3333. |
Citation | 253 S.W. 17,212 Mo. App. 488 |
Parties | BECKWITH v. CITY OF MALDEN. |
Court | Missouri 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.
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.
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.
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...
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