Day v. Consolidated Light, Power & Ice Co.

• Decision Date: 01 March 1909
• Citation: 136 Mo. App. 274,117 S.W. 81
• Parties: DAY et al. v. CONSOLIDATED LIGHT, POWER & ICE CO.
• Court: Missouri Court of Appeals

117 S.W. 81

136 Mo. App. 274

DAY et al. v. CONSOLIDATED LIGHT, POWER & ICE CO.

Kansas City Court of Appeals. Missouri.

March 1, 1909.

1. APPEAL AND ERROR (§ 997)—OVERRULING DEMURRER TO EVIDENCE—REVIEW.

The court, on reviewing the ruling on a demurrer to plaintiff's evidence, must consider the facts in their aspect most favorable to the cause of action asserted.

2. ELECTRICITY (§ 16)—INJURIES INCIDENT TO PRODUCTION AND USE—INSULATION.

One making merchandise of electricity and transmitting it along public thoroughfares of populous communities must prevent its escape, and where an ordinarily prudent person, observing the highest degree of care, would anticipate that persons in the exercise of their lawful right might be brought in contact with electrically charged wires, he must insulate the wires and maintain them in a proper state of repair.

3. ELECTRICITY (§ 14)—INJURIES INCIDENT TO PRODUCTION AND USE—CARE REQUIRED.

Where one making merchandise of electricity and transmitting it along the public thoroughfares, observing the highest degree of care, ought to anticipate that persons rightfully on the flat roof of a building might come into contact with wires maintained in an alley in the rear of the building, he must exercise the highest degree of care to replace defective wires, and a breach thereof is actionable negligence.

4. ELECTRICITY (§ 16)—INJURIES INCIDENT TO PRODUCTION AND USE—CARE REQUIRED.

Where a company engaged in manufacturing and vending electricity for light and power maintained wires at the rear of the flat roof of a building with constructive knowledge that the occupants of the adjoining building used such roof with the acquiescence of the owner thereof, the company was required to maintain its wires in a safe condition and was liable for the death of a child, playing on the roof, by contact with a defectively insulated wire.

5. DEATH (§ 103)—OF CHILD—CONTRIBUTORY NEGLIGENCE OF PARENT — QUESTION FOR JURY.

Whether the mother of a child, six years old, was negligent in permitting the child to play on the flat roof of an adjacent building, precluding recovery by her for the death of the child by contact with a live wire negligently maintained near the roof, held, under the evidence, for the jury.

6. ELECTRICITY (§ 18)—CONTRIBUTORY NEGLIGENCE OF CHILDREN.

A child, six years old, playing on the flat roof of a building and coming in contact with a live electric wire maintained near the roof, is not chargeable with contributory negligence.

7. DEATH (§ 104)—OF CHILD—CONTRIBUTORY NEGLIGENCE OF PARENTS—INSTRUCTIONS.

An instruction, in an action by parents for the death of a minor child, that the burden was on defendant to establish that the child was killed by his own negligence or the negligence of his mother contributing thereto, "and not by the negligence of the defendant," etc., was erroneous for imposing on defendant the burden of proving its freedom from negligence, while plaintiffs had the burden to show affirmatively that defendant's negligence was the proximate cause of the injury.

Appeal from Circuit Court, Jasper County; Hugh C. Dabbs, Judge.

Action by I. D. Day and another against the Consolidated Light, Power & Ice Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

A. E. Spencer, John A. Eaton, and E. H. McVey, for appellant. Perkins & Blair and Walden & Andrews, for respondents.

JOHNSON, J.

Plaintiffs were the parents of Shelton Day Moody, a boy six years old at the time of his death, which occurred February 14, 1907. Defendant is a corporation engaged in the business of manufacturing and vending electricity for light and power in the city of Joplin. The death of the child was caused by an electric shock which he received by coming in contact with one of defendant's highly charged wires, and it is alleged in the petition that defendant was negligent: First, in placing the wire; and second, in permitting it to remain in a defective and dangerous condition caused by the decay and consequent removal of a part of the insulation. The answer is voluminous, but in effect the main defenses interposed are a general denial and a plea of contributory negligence. Verdict and judgment were for plaintiff's in the sum of $2,000, and the cause is here on the appeal of defendant.

First we shall dispose of the questions raised by the contention of defendant that its request for an instruction peremptorily directing a verdict in its favor should have been granted. Material facts disclosed by the evidence of plaintiffs are as follows: At the time of his death, the boy was living with his mother (now Mrs. Moody), who kept a rooming house on the third floor of a business house in Joplin at No. 413 Main street. Adjoining this building on the south was a two-story store building with a flat tin roof. Windows in Mrs. Moody's apartments afforded easy access to this roof, and the evidence tends to show that the roof was used as a back yard by Mrs. Moody, her family, and tenants. A clothesline was stretched across it. In the summer tenants sometimes slept there, and at times children used it as a playground. We are stating the facts in their aspect most favorable to the cause of action asserted—a thing we should do in ruling on the demurrer to the evidence. The owner of the adjoining building was not Mrs. Moody's landlord, and there is evidence that he complained about the roof being littered with trash and refuse; but he made no complaint to Mrs. Moody, and it is fair to say that for a long period he tacitly acquiesced in the use of the roof by her and her tenants. Early in the afternoon of February 14, 1907, the boy was playing with a return rubber ball in one of the rooms of his mother's apartments. The weather being...