City of Owensboro v. York's Adm'r

• Decision Date: 13 January 1904
• Citation: 77 S.W. 1130,117 Ky. 294
• Parties: CITY OF OWENSBORO v. YORK'S ADM'R.
• Court: Kentucky Court of Appeals

77 S.W. 1130

117 Ky. 294

CITY OF OWENSBORO v. YORK'S ADM'R.

Court of Appeals of Kentucky.

January 13, 1904

Appeal from Circuit Court, Daviess County.

"To be officially reported."

Action by the administrator of James P. York against the city of Owensboro. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

G. W Jolly, for appellant.

Wilfred Carico and Berkhead & Clements, for appellee.

HOBSON J.

Appellee filed this suit as the administratrix of the estate of James P. York to recover of appellant for his death. The intestate was a boy 12 years old. Some boys playing in the street discovered that a wire connecting with the electric light system was hot. When the curfew rang, the larger boys went home. The intestate was sitting on a fence post. One of the boys dared any one in the crowd to touch the wire, and said he would give a nickel if some one would touch it. The intestate said that if he could get a board and stand on it he could touch it, and it would not hurt him. Some one got a board, and the little boy got on it. As soon as he touched the wire he was immediately killed. One of the boys who pulled him off from the wire by catching hold of his person was severely shocked. One of the older boys, who was 14 years of age, before he left, told the boys not to touch the wire or they would get killed. But it is uncertain from his testimony whether the intestate heard this. About this time also, one of the boys got a piece of wood, and touched the wire with the wood, and it shocked him. It is earnestly insisted for the city that there can be no recovery, although it was negligent in having the hot wire in the street, for the reason that the intestate knew the danger, and voluntarily took the risk, assuming that, if he stood on the board, the electrical current would not hurt him. This would be true of an adult, but the question is whether the same rule should be applied to an infant 12 years old. If the child had been 3 years old, it would not be maintained that his negligence or willfulness in touching the wire would acquit the city of responsibility for having such an instrument of death negligently in the street; and when the child is older it is a question for the jury whether considering his age, he exercised such care and discretion as might be reasonably expected of a child situated as he was. In Macon v. The Paducah Street Railway Company (Ky.) 62 S.W. 496, a boy 12 years old was killed by a live wire in the streets, and there was evidence in that case, as here that the child was warned of the danger, but, after showing that there was evidence of negligence on the part of the defendant sufficient to take the case to the jury, the court, in disposing of the defense of contributory negligence, said: "It was also the province of the jury to determine whether or not plaintiff had in fact been warned of the danger of taking hold of the wire, and, if so, whether, considering his age and capacity, and all the other circumstances as shown by the evidence at the time that he did take hold of it, he was guilty of such contributory negligence as barred his right to recover in this action." In Texarkana Gas Company v. Orr (Ark.) 27 S.W. 66, 43 Am. St. Rep. 30, the wire was lying in the street, and a hog had been shocked by it. A boy, who was passing along the street, took hold of one of the wires lying in the street, which was not charged, and began dragging it across the street. A policeman saw him, and called to him to put it down. He then took the wire in both hands, and began throwing it backwards and forwards, with a view to throwing it down. When he did this, the wire was thrown in contact with a live wire, while he yet held it in his hands, and he was killed. His exact age is not stated in the report, except that it appeared that he was "of that indiscreet age which is between the irresponsibility of youth and the full responsibility of manhood." It was held that it should be left to the jury to say how far he should be held responsible. These decisions are in accord with the current of authority. In Washington, etc., R. R. Co. v. Gladmon, 15 Wall. 401, a child seven years old was injured. The court said: "Of a child three years of age less caution would be required than of one of seven, and of a child of seven less than one of twelve or fifteen. The caution required is according to the maturity and capacity of the child, and this is to be determined in each case by the circumstances of that case." In P. & M. Railroad v. Hoehle, 75 Ky. 41, a child 12 years old was struck by a train. It was held that she could not recover if she would have escaped injury "by exercising the caution and prudence that one of her age would ordinarily have used under the circumstances." In Kentucky Central Railroad v. Gastineau's Adm'r, 83 Ky. 119, a boy between 14 and 15 years old was run over and killed by a car. It was held that the jury should have been instructed to find "whether, from the age of the deceased, he had discretion enough to know his danger, and guard against it, or not." In 1 Shearman & Redfield on Negligence, § 73, it is said: "It is now settled by the overwhelming weight of authority that a child is held, so far as he is personally concerned, only to the exercise of such degree of care and discretion as is reasonably to be expected from children of his age. No injustice is done to the defendant by this limitation of the defense of contributory negligence, since the rule itself is not established primarily for his benefit, and he can never be made liable if he has not been himself in fault." In 7 Am. & Eng. Ency. of Law, p. 408, after a discussion of the rule requiring that allowance must be made for childish instincts, impulses, and want of discretion, it is said: "As the standard of care thus varies with the age, capacity, and experience of the child, it is usually, if not always, where the child is not wholly irresponsible, a question of fact for the jury whether the child exercised the ordinary care and prudence of a child similarly situated; and, if such care was exercised, a recovery can be had for an injury negligently inflicted, no matter how far the care used by the child falls short of the standard which the law erects for determining what is ordinary care in a person of full age and capacity." Electricity is such a deadly instrumentality, as used by an electric light company, and the wire when charged with it has so little appearance of danger, that a child of 12 years would not appreciate the peril of touching the wire. The fact that the child was warned of the danger, or told not to touch the wire, while it is a circumstance to be considered by the jury, is not conclusive on the question of negligence; for it is the want of discretion in the child, rather than the want of information, which underlies the rule exempting him from the consequences of his act, as shown by the authorities above referred to. Children act upon childish instincts and impulses. That discretion which is expected of an adult cannot be required of them. It is incumbent on those handling dangerous instrumentalities not to leave exposed to the...