Grady v. Louisiana Light, Power & Traction Co.

• Decision Date: 12 June 1923
• Docket Number: No. 17960.,17960.
• Citation: 253 S.W. 202
• Court: Missouri Court of Appeals
• Parties: GRADY v. LOUISIANA LIGHT, POWER & TRACTION CO.

253 S.W. 202

GRADY v. LOUISIANA LIGHT, POWER & TRACTION CO.

No. 17960.

St. Louis Court of Appeals. Missouri.

June 12, 1923.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by Dawson Grady against the Louisiana Light, Power & Traction Company. From a judgment for plentiff, defendant appeals. Affirmed.

J. E. Pew, of Louisiana, Mo., Guy K Wood, of St. Louis, and D. A. Ball, of Louisiana, Mo., for appellant.

Hostetter & Haley, of Bowling Green, and Pearson & Pearson, of Louisiana, Mo., for respondent.

BRUERE, C.

This is an action by plaintiff to recover damages for the death of his son, a minor, five years of age, caused by coming in contact with a broken electric wire owned by the defendant.

The charging part of the petition is as follows:

"That on the 30th day of June, 1918, defendant's electric wires, charged with electricity and dangerous to life, had become loosened from the poles, and broken and fallen down, and the poles rotten and broken, and the insulation on the wires had become worn at a point close to the property in which the plaintiffs were residing, and which was being used by the general public as a highway, and in such a position as to come in contact with people passing along at that place; that the position of the wires and the condition thereof, and of the poles, and its proximity and consequent danger to people going along, at the placeaforesaid, was known to the defendant, or by the exercise of ordinary care could have been discovered by the defendant, in time, by the "use of ordinary diligence, to have repaired and removed the same, before plaintiff's injury, but that defendant permitted said poles and wires to be, and remain, in said dangerous position and condition; that on the said 30th day of June, 191.8, and about the hour of 10:30 o'clock in the morning, while plaintiff's minor child was passing along said place, going from plaintiff's home to the home of Thomas Moore, and while said child was unaware of the proximity of said wires, he came in contact therewith, and, by coming in contact with said dangerous wires, he received an electric shock, causing his death, and that he (plaintiff's said child) died on the 30th day of June, 1918, as aforesaid."

The answer contains a general denial and in addition pleads:

"That on the date of the death of the child of plaintiffs and but a short time prior thereto there occurred an unusually severe wind and rain storm that blew a limb of a tree on the wire of defendant, breaking it and causing it to fall to the ground; that, if the child of plaintiffs came in contact with the wire, it was no fault, negligence, or carelessness on the part of defendant for the reason that defendant did not know and, by the exercise of diligence, could not have known that the wire was down. Besides, the child was on the premises of the Chicago & Alton right of way that was occupied by defendant's wire, and defendant did not know and could not have known that the parents of said child would permit it to go upon said right of way."

The reply is a general denial. Upon the issues thus joined the case was tried by a jury and resulted in a verdict for the plaintiff for $1,500. From a judgment on that verdict defendant appeals.

The defendant assigns for error the refusal of the trial court to direct a verdict for it; also its action in giving plaintiff's instruction No. 2.

In support of the first error assigned, It is urged, first, that there was no evidence adduced to show that the defendant, after the storm on the night before and the storm on the morning of the death of plaintiff's child, either knew or by the exercise of the utmost diligence could have known that said wire was broken; second, that the plaintiff's child was a trespasser and therefore no recovery could, for that reason, be had.

The uncontradicted facts in the case are these: At the time of the death of the deceased, and for several years prior thereto, the defendant was maintaining and operating an electric light plant in the city of Louisiana, Mo. It also furnished electricity to the Stark Bros. Nursery & Orchard Company, an institution located about two miles west of Louisiana, and close to Stark's addition. Said addition is inhabited by about 280 people, mostly employees of said nursery company. The north line of the Chicago & Alton Railroad right of way is the south boundary line of Stark's addition. The plaintiff lived with his family in said addition. The lot on which his home was located is north of and adjacent to the right of way of said railroad, and immediately east of the lot upon which Thomas Moore has his residence. Twenty-Third street runs north and south through Stark's addition and terminates at the right of way of the railroad. This street runs along the east boundary line of plaintiff's lot. The railroad right of way is unfenced and open at the point where this street intersects said right of way in going to and from their work, employees of the nursery company and others used the right of way of the railroad company. This had been their custom even prior to the time that the defendant company began furnishing electricity to the nursery company. This use was evidenced by a well worn and beaten pathway, which ran along the north side of said right of way and within a few feet of the south line of plaintiff's said lot. In carrying the electricity to the Stark Bros. Nursery & Orchard Company the defendant erected its poles and wires along this pathway, in the north side of the said right of way.

On the morning of June 30, 1918, at about 10:30 o'clock the deceased left his father's house and started over to Mr. Moore's residence. The child followed the pathway in the said railroad right of way to a point opposite Mr. Moore's lot and there came into contact with defendant's wire, which lay upon the ground, charged with 2,300 volts of electricity, and was instantly killed.

Near the place of the accident the wires were strung through a wild cherry tree. One of the poles upon which the wires were strung, opposite the plaintiff's said property, had become rotten and had broken, and was Leaning against the tree. The breaking of the pole caused the wires to come in contact with the limbs of the tree. This condition of the pole and wires had, according to the testimony of plaintiff's witnesses, continued for several months prior to the accident.

The break in the wire occurred in the cherry tree. The broken ends remained hanging in it, but about 18 feet thereof fell to the ground, and it was this part of the wire that came in contact with the deceased. The insulation on the wire was in...