Harrelson v. Eureka Springs Electric Co.

• Decision Date: 06 December 1915
• Docket Number: 27
• Parties: HARRELSON v. EUREKA SPRINGS ELECTRIC COMPANY
• Court: Arkansas Supreme Court

181 S.W. 922

121 Ark. 269

HARRELSON v. EUREKA SPRINGS ELECTRIC COMPANY

No. 27

Supreme Court of Arkansas

December 6, 1915

Appeal from Carroll Circuit Court, Western District; J. S. Maples Judge; affirmed.

Judgment affirmed.

Charles D. James and Fred F. Harrelson, for appellant.

1. One can not escape liability for negligence merely because the injured party was a trespasser, where before the commission of the act the presence of the trespasser was known to him or ought to have been known by the use of ordinary care and diligence, by the use of which the injury might have been avoided. 29 Cyc. 443, 120 Ga. 521; 81 N.W. 333; Wharton on Neg., § 340; 45 P. 407; 75 N.W. 919; 67 N.Y.S. 63; 16 S.E. 4; 48 Id. 166; 80 N.E. 345; 42 So. 516. The care must be commensurate with the danger involved, having regard for the dangerous character of the agency employed. This rule applies to trespassers and licensees. The company had notice that boys had been seen playing on the roof. 41 Ark. Law Rep. 142.

2. The court erred in its rulings as to the admission of testimony. Kirby's Dig., § 3135; 14 Ark. 558; 90 Id 399; 39 N.W. 871; 106 P. 74; Greenl. on Ev., § 445; 97 Ark. 290; 72 Ark. 467; 77 Id. 431.

3. Argument of appellee's counsel was improper and prejudicial. 70 Ark. 184; 71 Id. 433; 61 Id. 138; 89 Id. 59; 81 Id. 87. The franchise from the city was admissible in evidence. 116 Ark 125; 44 Id. 344; 108 Ark. 95, 110; 86 Id. 553.

4. Appellee is presumed to have knowledge of the condition of its wires and of their unsafe condition. 99 S.W. 879; 80 N.E. 345. The very highest degree of care for the safety of those who are liable to come in contact with wires is required. 100 S.W. 240; 97 Id. 420; 102 Id. 451; 89 P. 815; 60 Ark. 545; 70 Id. 331; 119 Am. St. 698. Where dangerous premises are attractive to children, the owner is liable. 65 Kan. 798; 70 P. 884. Appellee had knowledge of the danger and was liable even to a trespasser. 131 Iowa 622; 109 N.W. 177; 60 Ark. 545.

5. Testimony that boys were in the habit of playing on the roof was not hearsay. General notoriety is generally competent to charge notice. Greenl. Ev. (15 ed.), 202; 13 Am. St. 84; 82 Id. 108.

6. It was error to admit the plat in evidence. 17 Cyc. 412; 91 Ark. 175. Also the piece of wire. 77 Ark. 238.

7. Review the instructions, contending there was error. Beach on Cont. Neg., § 7; 29 Cyc. 509; 81 Ky. 403; 49 Am. St. Rep. 406; 114 Ark. 140; 85 Am. St. 735; Joyce on Elec. Law, § 450; 15 Cyc. 472; 61 Ark. 386; 89 Id. 581; 85 Am. St. 735.

C. A. Fuller, for appellee.

1. The case was submitted to the jury upon instructions most favorable to appellant, and the verdict is sustained by the evidence.

2. On cross-examination great latitude is allowed in civil cases. When incompetent evidence is admitted, prejudice is presumed, but here none is apparent and none could result. 77 Ark. 431; 72 Id. 467.

3. No improper argument was allowed.

4. No error in refusing to admit the franchise. 108 Ark. 95; 86 Id. 553.

5. Only ordinary care, such as would be exercised by a prudent person under the circumstances, was required. 99 S.W. 879; 25 Id. 229; 61 Ark. 381; 89 Id. 581; 108 S.W. 240; 97 Id. 420.

6. Evidence of general reputation or common notoriety among boys is not admissible Greenl. Ev. (15 ed.) Vol. 1, 202.

7. The plat was properly introduced, as was also the piece of wire. 77 Ark. 238.

8. There is no error in the instructions. 25 S.W. 246; 26 A. 973; 31 N.E. 128; 61 Ark. 381.

OPINION

MCCULLOCH, C. J.

Plaintiff 's intestate, Herbert Harrelson, a boy thirteen years of age, met his death by coming in contact with an electric wire maintained by the defendant company, and this is an action against the company to recover damages on account of alleged negligence. The defendant is a corporation engaged in furnishing electricity for commercial and domestic purposes in the city of Eureka Springs. It maintains a park in the city, and there is situated therein an auditorium which is covered by a low, flat roof. The roof on one side is in close proximity to a high bluff which overhangs the roof, and persons may conveniently climb to the roof by walking over the bluff. Electric wires come over the bluff and thence to the roof of the auditorium for the purpose of conveying electricity to illuminate the building. The wires run along three or three and a half feet above the roof and run through a transformer for the purpose of reducing the force of the current, and near the transformer is what the witnesses call a second roof of the building.

On February 9, 1914, there was a basket ball game played at the auditorium and plaintiff's intestate attended the game with the other pupils in his school, who were conducted thither by the teacher, and this boy and two or three of his companions separated themselves from the other pupils and went around on the bluff and thence climbed to the roof. They played around on the roof for a while and threw acorns down on the basket ball players below, when their presence was discovered and word was sent to them by the teacher to get down from the roof. One of the boys led the way to the second roof, and in doing so he climbed upon the transformer and thence to the second roof. Plaintiff's intestate attempted to do likewise, and while climbing upon the transformer he took hold of the wires and was electrocuted.

It is alleged in the complaint that the defendant was negligent in several particulars; first, in allowing children to play upon the roof and failing to give warning of the danger of the exposed wires; in allowing the insulation around the wires to become rotten so that children who took hold of them while in play would receive the electric current; and also in failing to place the transformer off on a pole so that the force of the current would be reduced to the extent that children coming in contact with it would not be injured.

Defendant filed an answer denying all of the alleged acts of negligence, and a trial before a jury resulted in a verdict in defendant's favor. There was proof adduced by the plaintiff tending to show that children were sometimes allowed to play on the roof, and that there was no warning of any kind given to them or effort of any kind on the part of the company to keep them away from there. The proof also tends to show that the insulation around the wires running along the top of the building, or near the transformer, was rotten and worn off at places so that the wires were exposed. On the other hand, defendant adduced testimony tending to show that the insulation around the wires was in a good state of preservation and was not worn off at any place except that at one place near the transformer the insulation was broken off, indicating that it had been broken off by one of the boys climbing up there at the time plaintiff's intestate was killed. The proof also tends to show that children were never permitted to play there on the roof and never before this time had frequented the roof. Since the jury has found against the plaintiff upon the issues joined in the pleadings, it is unnecessary to enter into any discussion as to how far the complaint and evidence adduced in support thereof constitute a cause of action.

The instructions of the court are not abstracted, therefore we must assume that the issues were submitted to the jury upon correct instructions. Appellant has assigned numerous errors of the court in giving and refusing instructions, and there are set out in the brief the particular instructions to which those assignments relate, but there has been no attempt to abstract all of the instructions. Therefore, we are unable to say whether or not the court erred. Error of the trial court in refusing to give an instruction will not be considered by this court where the abstract fails to set out all of the instructions which the court gave. We must indulge the presumption under those circumstances that the refused instructions, which are found to be correct, were covered by others given. St. Louis, I. M. & S. Ry. Co. v. Boyles, 78 Ark. 374, 95 S.W. 783; Karatofsky v. Fybush, 90 Ark. 230, 118 S.W. 1009; Wallace v. Strickler, 95 Ark. 108, 128 S.W. 565; Keller v. Sawyer, 104 Ark. 375, 149 S.W. 334. Nor can we consider, when all of the instructions are not set out in the abstract, assignments of error relating to giving of certain instructions, unless those instructions are so inherently defective that they could not be cured by others. The presumption is that correct instructions were given curing those complained of, unless they are so inherently defective that they can not be cured. Jacks v. Reeves, 78 Ark. 426, 95 S.W. 781; Dobbins v. Little Rock Ry. & Elec. Co., 79 Ark. 85, 95 S.W. 794. We find none of the instructions of which plaintiff complains to be so defective that, even if they are considered incorrect, the defects might not have been cured by other instructions.

The principal contention is that the evidence is not sufficient to sustain the verdict, but we find that there is, upon every issue in the case, evidence legally sufficient to support the verdict in favor of the defendant.

Error is assigned in the ruling of the court permitting defendant's counsel to ask the plaintiff whether or not h...