Cook v. City of Beatrice
| Decision Date | 12 February 1926 |
| Docket Number | 23576 |
| Citation | 207 N.W. 518,114 Neb. 305 |
| Parties | JOHN G. COOK, ADMINISTRATOR, APPELLANT, v. CITY OF BEATRICE, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Gage county: LEONARD W. COLBY JUDGE. Reversed.
REVERSED.
Hazlett Jack & Laughlin and Sabin & Vasey, for appellant.
Sackett & Brewster and F. A. Dutton, contra.
Heard before MORRISSEY, C.J., DAY, GOOD, THOMPSON and EBERLY, JJ.
Plaintiff, as administrator of the estate of Robert Cook, brought this action against defendant, a municipal corporation, to recover damages sustained by the death of plaintiff's intestate, a boy approximately eight years of age. At the close of the testimony the court instructed the jury to return a verdict in favor of defendant. The jury complied with the instruction. A judgment was entered on the verdict, and plaintiff brings this appeal.
On and prior to the day on which the boy met with the fatal accident, defendant owned and operated an electric plant in the city of Beatrice, from which it lighted the streets and alleys of the city, and also did a commercial business. The Nebraska Gas & Electric Company was likewise the owner of an electric plant, and furnished service to its patrons, within the city of Beatrice, by means of wires strung along the public streets, and supported by poles and cross-arms. On certain streets the city wires were supported by the poles of the Nebraska Gas & Electric Company by means of cross-arms attached to the poles. The city and the Nebraska Gas & Electric Company, which, for convenience, will hereafter be referred to as the company, had service lines running north on Sumner street to Bismark street, and west from this intersection on the north side of Bismark street. From what we may call the terminal pole, or intersection pole, at the corner of Sumner and Bismark streets, there descended from the top of the pole to an anchor in the ground, about 40 feet north of the pole, a metal guy-wire, or cable. The anchor was closely adjacent to the foot-path on Sumner street. West from the terminal pole there were trees with limbs projecting over and above the lines of wire, and, according to the evidence of plaintiff, several weeks before the injury complained of, employees of the company cut off a number of these overhanging limbs. The evidence does not positively show, but it may be inferred, that one of the limbs thus cut off became entangled in the wires of the city, and the company, and was permitted to remain entangled in these wires for a considerable period, and up to the time of the injury suffered. While this limb was entangled in the transmission wires, plaintiff's intestate, a pedestrian upon the public street, came in contact with the guy-wire heretofore mentioned and was instantly killed.
After the death of the boy, employees of the company removed the limb and made an examination of the transmission lines. They testified upon the trial that the limb had disturbed the proper alignment of the wires, both of the city and of the company; that two wires had been drawn together and, as a result thereof, the insulation upon them was partially burned off and the current thus reached the guy-wire. It is alleged that this dangerous condition had existed for so long a time that the city and the company knew, or ought to have known, of its existence.
As we have reached the conclusion that the cause must be remanded for further proceedings, we refrain from a more extended statement of the pleadings and from a more detailed review of the evidence, to the end that, should the case again...
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