Davenport v. King Electric Co.

• Decision Date: 29 February 1912
• Citation: 145 S.W. 454
• Parties: DAVENPORT v. KING ELECTRIC CO.
• Court: Missouri Supreme Court

145 S.W. 454

DAVENPORT v. KING ELECTRIC CO.

Supreme Court of Missouri. Division No. 1.

February 29, 1912.

Motion for Rehearing Overruled March 29, 1912.

1. WITNESSES (§ 77) —COMPETENCY—PRELIMINARY EXAMINATION—DISCRETION OF TRIAL COURT.

While the preliminary examination of youthful witnesses, whose competency is questioned, under Rev. St. 1909, § 6362, providing that a child under 10 years, who appears incapable of receiving just impressions of the facts or of relating them truly, is incompetent, should take place before the witness is sworn and admitted to testify, and the demand therefor should be made before the witness has testified, it was not an abuse of the trial court's discretion, where a boy 11 years old was allowed to testify without objection until his recall after the testimony of his father, who, upon the witness' statement that he did not remember his birthday, testified as to his age and the day of his birth, to refuse the opposite party permission to then examine the witness as to his comprehension of the obligations of an oath; nothing up to that time having tended to show that the witness had no knowledge of the obligations of the oath, and it appearing that the opposite party was not refused that privilege on cross-examination.

2. ELECTRICITY (§ 19)—INJURIES—ACTIONS— EVIDENCE.

In an action by one injured by a wire carrying a heavy current of electricity, evidence held sufficient to show that the wire belonged to defendant.

3. EVIDENCE (§ 596)—WEIGHT AND SUFFICIENCY.

Where a fact is within the peculiar knowledge of the defendant, slight circumstances are sufficient to establish it.

4. ELECTRICITY (§ 19)—INJURIES—ACTIONS— EVIDENCE—SUFFICIENCY.

In an action by one injured by a wire carrying a heavy current of electricity, evidence held sufficient to support a finding that the defendant was negligent in the maintenance of the wire, and that plaintiff was not guilty of contributory negligence.

5. ELECTRICITY (§ 14)—INJURIES—DEGREE OF CARE.

The owner of electrically charged wires, strung on public streets and highways, is bound to use the highest degree of care in maintaining them so as to protect the public.

6. ELECTRICITY (§ 19)—ACTIONS—PLEADING— VARIANCE.

In an action by one injured by a heavily charged electric wire, where the petition charged its negligent maintenance, proof that a broken wire had been in that condition, dangerously charged with electricity, long enough to make its existence at the time of the injury an act of negligent maintenance, warrants a recovery; there being no specific act of negligence pleaded.

7. DAMAGES (§ 132)—PERSONAL INJURIES— EXCESSIVENESS.

Where plaintiff, a boy of seven or eight, came in contact with a broken electric wire, which touched one of his hands, burning him severely and causing a permanent deformity of the arm, a verdict of $9,000 is excessive and must be reduced by $1,500.

Appeal from St. Louis Circuit Court; Daniell G. Taylor, Judge.

Action by Robert E. Davenport, Jr., by his next friend, R. E. Davenport, Sr., against the King Electric Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition that plaintiff enter a remittitur; otherwise reversed.

Plaintiff, then between seven and eight years of age, was injured on the 2d of September, 1905, while using a street, by coming in contact with an electrically charged wire which was broken and hanging over the street about 18 inches above the curb and which touched one of plaintiff's hands, causing him to be severely injured and a permanent deformity of the arm. Plaintiff sued by his next friend on the 18th of November, 1905. Defendant answered by general denial and plea of contributory negligence. The trial was had on the 14th of May, 1908. Plaintiff testified that he was then ten years of age; that he was seven when he was injured, three years before; that he did not know his birthday. He was temporarily withdrawn, and his father was put upon the stand who testified that plaintiff would be eleven years old on the 24th of December, 1908. Plaintiff was then recalled. Whereupon defendant asked leave to examine the witness to ascertain if he "understood the obligation of an oath." The court, upon objection of plaintiff's counsel, declined to permit that examination to be gone into at the time, but indicated defendant might ask questions afterwards. The examination of plaintiff was then continued in chief, after which he was cross-examined, but no questions were put to him touching his knowledge of the obligation of an oath. While being cross-examined, he testified, in substance: That his father was a motorman; that he was sent to the bakery to get bread for breakfast about 7 a. m. That in the course of his trip he came to a place where "building was going on there, and they were just digging the foundation, and these pieces of plank were there to walk over. There was no sidewalk—just dirt. I walked along the side-walk until I got to that place, and I jumped for the board, and it slid, and my hand went up and touched that wire. These boards were between the house line and the curb line. I was about two feet from the curb on the inside when I slid. I saw this wire hanging down, and it was about two or three inches inside of the curb, and there were two telegraph poles there, and the wire was hanging down along the side of the pole inside of the curb about two or three inches. I jumped from one board to the other to keep out of the mud. I did not get hold of the wire, but my hand came in contact with it to push it out of my way. The wire was on the second pole I came to. I did not touch the poles." When the witness received the electric shock, he became unconscious and was taken to a neighboring drug store, where, he says, "he came to," and thence was taken home and treated by two physicians, whose testimony tends to show that it would be better for him if his arm were amputated.

The father of plaintiff testified: "I was at home the day my boy got hurt, as that was my day off. He left home to go to the bakery about 7 o'clock. I got to the place where the boy was hurt about five minutes afterwards, I guess. A lady came to me and told me the boy was at the drug store, and I started for there. I saw two poles near there, that exact pole, and an old pole which had not been taken down; there seemed to be change of wires on those poles. They were taking down the old poles, and new ones were being put up at this place and further down. I saw the wire hanging there and don't remember much about it, as I was very much excited. It was hanging about 18 inches from the pole and looked to me probably 18 inches or a foot from the ground. It was an insulated wire. An electric current for electric lights was carried on it. The King Electric Company has light wires out there. Before I left the drug store with the boy, I telephoned for the doctor and then took the boy home. About an hour afterwards I saw the wire again, and the King Electric Light men were there with their wagon taking it up. That name was on the wagon."

A letter carrier also testified for plaintiff that, in the afternoon of the day before plaintiff was hurt, he saw defendant's wagon and a gang of men working there, bossed by a young man then in the courtroom. Adding: "I was on the opposite side of the street delivering mail going west, and probably got diagonally across to where this electric light was, when I heard a holler and a shout and saw the boy fall down, and a lady ran out of the real estate office and a man out of the drug store. * * * The boy fell on the dirty sidewalk just about where the wire was hanging. The wire hung over the sidewalk about a foot, I should judge, from the curb."

Other witnesses for plaintiff testified that the injury happened as stated above; that the night before it stormed and rained, but cleared about 5 o'clock a. m. One witness stated he saw this wire emit sparks at 2 a. m.; that the accident happened about 7:30 or 8:00 a. m.; that the wire causing the injury was an insulated one, such as is used to carry electric currents; and that defendant furnished electricity in that part of the city.

The evidence of the defendant is not material to the scope of review arising on the questions presented on this appeal. Plaintiff had judgment for $9,000, from which defendant duly perfected...