City of Madisonville v. Nisbet's Adm'r
| Citation | 270 Ky. 248,109 S.W.2d 593 |
| Parties | CITY OF MADISONVILLE v. NISBET'S ADM'R. |
| Decision Date | 19 October 1937 |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Hopkins County.
Action by Ollie Cary Nisbet's Administrator against the City of Madisonville. Judgment for plaintiff, and defendant appeals.
Affirmed.
L. R Fox and H. F. S. Bailey, both of Madisonville, for appellant.
Chas G. Franklin and Waddill, Laffoon & Waddill, all of Madisonville, for appellee.
The appeal is from a $5,000 judgment for death.
Madisonville owns and operates an electric distribution system for lighting its streets and selling electricity to its citizens. The electricity is distributed from the municipal building. After leaving the municipal building there is no connection between the wires carrying current to light the streets and the wires carrying current for lighting homes and commercial purposes. At the northwest corner of Kentucky avenue and Lake street, where the decedent died, a pole was set in the pavement, and on the other side diagonally across was another pole. The electric street light is suspended over the center of the intersection of Kentucky avenue and Lake street, and is swung from a wire strung between the two poles. To this wire, called a span wire, is fastened a pulley chain which runs from the top of the street light through a pulley fastened to the suspension wire at the center of the street, thence to the pulley on the northwest corner of Kentucky avenue and Lake street, and through another pulley at the side of the pole, thence down the street-side of the pole, where it is fastened. Near the bottom of the chain there is an insulator four inches long with its top about seven feet and one inch from the ground. The chain is used to raise and lower the street light. Attached to the poles are wires carrying 110 volts for lighting homes and a wire carrying 2,200 volts for street lighting purposes. The two wires from the 2,200-volt wire, called feed or lead wires conduct the current to the street light. The span wire and pulley chain are between the feed wires and not far apart.
Between 1 and 2 o'clock on the morning of August 11, 1935, the decedent, Ollie Cary Nisbet, and some other negroes were standing at the intersection of Kentucky avenue and Lake street. Nisbet raised his hand above his head, placed it on the pole, and fell dead. Of those present Leroy Marshall, Grace Gordon, and Robert Bronaugh testified. Leroy Marshall described the accident in the following language: "He just leaned up against the post like that (indicating a position with his hand against the post) and Grace Gordon said, 'Look there,' and I looked and fire was flying from his feet, and he fell out backwards."
Marshall also testified that he examined the decedent's hand after the accident, and saw that his hand was burned. Decedent placed his left hand on the pole, and the chain was within his reach. According to Grace Gordon, they were going home and stopped on the corner. They were talking and Ollie Cary "got tickled" and leaned against the post touching the post with his hand at a place slightly above his head. There was a hissing noise and something that looked like fire flew from his feet and he fell back. She did not see him grab the chain. He placed his hand on the north side of the post. It was dark and windy and had been raining. Robert Bronaugh described the occurrence in the following language:
Decedent did not pull or jerk the chain. As soon as he put his hand against the post, it knocked him plumb loose from it. The night was "kind of windy and rainy." Doug Barbee, who was a member of the coroner's jury, testified that he saw decedent's hand the night of the accident, and there was a light burn across the palm. It had been sprinkling rain, and the wind had been blowing. Other witnesses who examined decedent's hand shortly after the accident testified that it was burned, and that it was a rainy, windy night, one of them saying that the wind was "rough," and another saying that it was sort of a blustery night. Dr. A. F. Finley testified that he examined the decedent's hand next morning and found burns in and around his thumb along that part of the hand where the metacarpal bones joined the palm. In his opinion the decedent was electrocuted.
On behalf of the city, Hall Arnold, superintendent of the Light & Water Plant, testified as follows: One of the night policemen called him about 2 o'clock. He called Jasper Gentry, night trouble man, and they went to the scene of the accident. He went up the pole himself and laid his hand on it, saw nothing wrong with the insulator, and placed his hand on the pole below the insulator and felt nothing at that point. He also took hold of the chain below the insulator, after he had examined the insulator, and found it to be o. k. On being asked to tell the ways by which the chain might become charged he said: "If the lamp was defective, a break down in the lamp, the chain would become energized, or a failure of the insulator on the end of the cross arm supporting the wires fastened in to the lamp, or swinging, violent swaying, of the lamp could produce, or cause, one of the leads to the lamp to come in contact with the chain, or one of the jumper leads, leading from the cross arm off to the lamp above the lamp to come in contact with either the chain, or the cross arm that supports the wires leading to the lamp."
He added that when they got there everything was in normal operating condition, no current on the chain and nothing out of fix. Witness also testified that the next morning he and several others went to the scene of the accident and made a test, but the court declined to permit him to give the result of the test. Jasper Gentry, who accompanied Arnold to the scene of the accident, testified that the equipment there was of standard construction, and that he made an inspection and could not find anything wrong at the top of the pole.
The morning after the accident Mr. Arnold, accompanied by M. F Beisber, J. L. Walker, M. E. Johnson, O. C. Hinton, Ruby Siria, and Jasper Gentry, all of whom had more or less experience as electricians, went to the scene of the accident and carried instruments with them to test the equipment. Their evidence is in substance as follows: At the time of the test there was a...
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... ... 12. The case of McHenry v. City of Parkersburg, 66 W.Va. 533 [66 S.E. 750, 29 L.R.A.,N.S., 860], appraised ... 262, and City of Madisonville v. Nisbet's Adm'r, 270 Ky. 248, 109 S.W.2d 593, are cited to support the ... ...
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...v. Coburn, 285 Ky. 544, 148 S.W. (2d) 705; Commonwealth v. Hoover's Adm'r, 274 Ky. 472, 118 S.W. (2d) 741; City of Madisonville v. Nisbet's Adm'r, 270 Ky. 248, 109 S.W. (2d) 593; Keys v. Nash's Adm'x, 264 Ky. 398, 94 S.W. (2d) 1006; Chesapeake & O.R. Company v. Banks' Adm'r, 153 Ky. 629, 15......
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...street, in which tree the boys of the neighborhood played, 'The boy had a right to be in the tree.' Cf. City of Madisonville v. Nisbet's Administrator, 270 Ky. 248, 109 S.W.2d 593. See Annotations 17 A.L.R. This case, however, was practiced under the doctrine of attractive nuisance. Of cour......
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...street, in which tree the boys of the neighborhood played, "The boy had a right to be in the tree." Cf. City of Madisonville v. Nisbet's Administrator, 270 Ky. 248, 109 S.W. 2d 593. See Annotations 17 A.L.R. This case, however, was practiced under the doctrine of attractive nuisance. Of cou......