Helena Gas Company v. Rogers
Citation | 135 S.W. 904,98 Ark. 413 |
Parties | HELENA GAS COMPANY v. ROGERS |
Decision Date | 20 March 1911 |
Court | Supreme Court of Arkansas |
Appeal from St. Francis Circuit Court; Hance N. Hutton, Judge reversed.
STATEMENT BY THE COURT.
This is a suit by the administrator for damages for the benefit of the widow and next of kin and the estate of E. M. Burns deceased, for his wrongful death, caused, it was alleged, by the negligence of the Helena Gas Company. The negligence complained of was the digging of a post hole 24 inches in diameter and six feet deep, at a point near the northeast corner of Cherry and Perry streets, in the city of Helena, in which to place a pole for the stringing of its wires and the distribution of electricity in said city, and negligently and carelessly permitting it to remain open, unguarded unprotected and in a dangerous condition for persons using said Cherry and Perry streets and failing to place over and around such excavation such warning as would give notice of the dangerous condition of the street.
The Gas Company denied every allegation of the complaint; denied any negligence upon its part or any liability to the plaintiff admitted making the excavation "within the curb on the north side of Perry Street east of its intersection with Cherry Street," and that said excavation was made at the direction of the city, and under the supervision of the city engineer, for the purpose of placing a pole therein on which wire was to be stretched for lighting the city; denied that the excavation was made in the street; alleged that it was within the curb and at a place safely removed from where there was traveling on horseback or otherwise; denied that it negligently and carelessly permitted said hole to remain open, unguarded and unprotected and in a dangerous condition and, on the contrary, says that the same was covered with boards two inches in thickness and in the most secure manner possible.
The testimony tended to show that E. M. Burns was riding horseback north along Cherry Street in the city of Helena on the afternoon of August 26, 1909, on his way home to dinner. After he had crossed Perry Street and at a place in the street upon which he was riding opposite a blacksmith shop, the side of the street next to same being somewhat obstructed by vehicles left there for repairs, a negro boy, driving a wagon south, suddenly pulled his horse toward Burns, and the shaft struck the left flank of the horse ridden by him, scaring him, and he bolted to the right and ran across the corner of the sidewalk and fell into the hole dug by said company, which was only partly covered by a 1x6 board, throwing his rider violently to the sidewalk, his head striking same and fracturing the skull, from which injury he died the next day, after much pain and suffering.
The hole was on the outside of the paved part of the sidewalk and between it and the curb on Perry Street at its intersection with Cherry Street. The streets and sidewalk at this place were about on a level. The hole was dug by the Helena Gas Company under the supervision of the city engineer, and when finished covered with some old boards about two inches thick, from an old bridge nearby. About five days thereafter the injury occurred, and there was no testimony showing any further care or attention upon the part of the company to guard or keep covered the excavation, which was shown to have been uncovered and open several times after it was made.
The court gave, over defendant's objection, the following instruction No. 4, and refused to give requested instruction for it No. 2 as follows:
The jury returned a verdict for $ 5,000 on the first count of the complaint and $ 2,500 on the second in favor of plaintiff, and from the judgment rendered thereon this appeal is brought.
Judgment reversed and cause remanded.
S. H. Mann, Moore & Vineyard, Norton & Hughes, and Rose, Hemingway, Cantrell & Loughborough, for appellant.
1. In removing the pole, the gas company was simply the agent of the city, and a city is not liable for injuries occasioned by defective streets. 49 Ark. 139; 4 S.W. 450; 52 Ark. 84; 12 S.W. 157; 73 Ark. 447; 84 S.W. 480; 74 Ark. 519; 86 S.W. 295.
2. From the nature and place of the excavation, the purpose for which and the authority under which it was made, the appellant was not required to use more than ordinary care. 61 Ark. 141; 32 S.W. 500; 79 Ark. 490; 86 Ark. 36, 45. The effect of the fourth instruction given at appellee's request was to make appellant an insurer of the safety of persons passing along the streets by this excavation. 1 S.W. 865, 869; 9 N.E. 155; 56 P. 141. A municipality is not an insurer of the safety of persons who go upon its streets. In the construction of public ways, it is bound only to the use of ordinary care, skill and diligence, and is only required to keep them in a reasonably safe condition. 61 Ark. 141; 95 N.W. 1084; 72 N.E. 531; 73 N.E. 481; 120 Ill. 607; 86 P. 264; 67 A. 175; 81 N.E. 594; 59 S.E. 992; 132 Ill.App. 604; 119 S.W. 1084; 32 App. D. C. 32; 116 N.Y. 657; 123 S.W. 249. The licensee of a municipality does not owe to the public any higher duty, nor incur any greater liability, than would the city itself under the same circumstances, 69 A. 636.
The duty to insure the safety of persons in the use of public streets and highways arises only in those cases where the excavation, obstruction or other defective...
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