City Electric St. Ry. Co. v. Conery

• Decision Date: 14 December 1895
• Citation: 33 S.W. 426
• Parties: CITY ELECTRIC ST. RY. CO. v. CONERY.
• Court: Arkansas Supreme Court

33 S.W. 426

CITY ELECTRIC ST. RY. CO. v. CONERY.

Supreme Court of Arkansas.

December 14, 1895.

Appeal from circuit court, Pulaski county; Robert J. Sea, Judge.

Action by George Conery against the City Electric Street-Railway Company for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

J. M. Rose and J. F. Soughborough, for appellant. H. F. Auten, for appellee.

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, on 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 6 and 12 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 Markham 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 10 years, — 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.

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, 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.

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...