City of Owensboro v. Knox's Adm'r

• Decision Date: 15 October 1903
• Citation: 116 Ky. 451,76 S.W. 191
• Parties: CITY OF OWENSBORO v. KNOX'S ADM'R.
• Court: Kentucky Court of Appeals

76 S.W. 191

116 Ky. 451

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

Court of Appeals of Kentucky.

October 15, 1903

Appeal from Circuit Court, Daviess County.

"To be officially reported."

Action by H. L. Knox's administrator against the city of Owensboro. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Geo. W Jolly, for appellant.

J. D Atchison and C. S. Walker, for appellee.

O'REAR J.

The city of Owensboro owns and operates its own electric light plant, conducted both for public and commercial lighting. Appellee's intestate, a child some 14 years of age, while passing along one of appellant's streets, inadvertently and innocently came in contact with a guy wire running from the top of a pole, along which were strung the wires for conducting the electric current, to a short post set near the sidewalk. By reason either of imperfect insulation or other improper and neglectful failure to keep the wires from coming in contact, the guy wire had become charged with a heavy current of electricity. The child was severely shocked and burned. In this suit to recover damages for appellant's negligence in suffering the guy wire to become in this dangerous condition the court charged the jury as to the law governing this case, which charge is the principal point of objection on this appeal. The verdict was for appellee's intestate, and the city appeals.

The instruction most complained of, and the only one of enough novelty, presumably, to have engaged the serious attention of learned counsel, is this: "The court instructs the jury that defendant was required to have and keep safe and properly constructed wires and poles at the place where plaintiff was injured; and that it was its duty, in using electricity at the place and manner shown in the evidence, to use such care as was commensurate with the danger, and to employ such skill and knowledge as are ordinarily possessed and exercised by those experienced in the nature of the element and probable consequences of its application for the purpose it was used; and that if they believe, from the evidence, the defendant failed to have there such wires and poles or to employ such skill and knowledge, in consequence of which plaintiff was injured, it was negligent, and they should find for the plaintiff." The criticism leveled against this instruction is that it imposes an absolute duty upon the city; whereas, it is argued, the law requires merely, as to keeping the city's streets in a safe condition, that the city shall be liable only if it had notice of the defect a sufficient length of time to remedy it, or might have had such notice by the exercise of reasonable care...