Johnston v. New Omaha Thomson-Houston Elec. Light Co.

• Decision Date: 05 January 1907
• Citation: 110 N.W. 711,78 Neb. 24
• Parties: JOHNSTON v. NEW OMAHA THOMSON-HOUSTON ELECTRIC LIGHT CO.
• Court: Nebraska Supreme Court

78 Neb. 24

110 N.W. 711

JOHNSTON

v.NEW OMAHA THOMSON-HOUSTON ELECTRIC LIGHT CO.

Supreme Court of Nebraska.

Jan. 5, 1907.

Syllabus by the Court.

In an action for damages for personal injuries to an infant, alleged to have been caused by the negligence of another, the foundation for recovery, if there is any, is not the tender years of the child, but the culpable negligence of the defendant.

In an action for damages for personal injuries alleged to have been inflicted by the negligence of another, a recovery can be had for such consequences only, of the act complained of, as ought reasonably and probably to have been anticipated to flow therefrom.

Commissioners' Opinion. Department No. 1. Appeal from District Court, Douglas County; Kennedy, Judge.

Action by James W. Johnston against the New Omaha Thomson-Houston Electric Light Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded.Greene, Breckenridge & Kinsler, for appellant.

T. W. Blackburn and R. S. Horton, for appellee.

AMES, C.

This is an appeal from a judgment for damages for a personal injury to a son of the plaintiff, a lad twelve years of age.

There is a foot passageway or sidewalk along the side of a viaduct in the city of Omaha. On the outside of this walk, and along the edge of the viaduct, is an iron railing or fence 44 to 46 inches in height, and constructed of three horizontal rails, connected with cross-pieces or lattice work. On the outside of this fence and fastened thereto, and to the substructure of the viaduct, a street railway company has erected and maintainstrolley poles. From the outside of these poles brackets or arms are extended, and upon insulators at the ends of the arms wires are suspended for the carrying of currents of the defendant, which is an electric light company. The apparatus of the defendant was erected in compliance with regulations of the city authorities with reference to the subject, and under the supervision of the city electrician. The distance of the wires from the top rail of the fence is not less than 18 and is perhaps 30 inches; much the greater weight of the testimony favoring the latter. On the occasion of the happening of the injury the plaintiff's son and four other boys of about the same age approached the viaduct on foot for the purpose of crossing it, when one of them remarked that another boy, not then present, had received a shock some days before from a wire on one of the poles, which was designated. When the party had arrived at this place, one of the boys climbed on the second or middle rail of the fence and proposed to grasp the wire, but was dissuaded from so doing by his companions. After that the plaintiff's son proposed that he would climb on the fence “and see if he could get a shock.” All the other lads warned him against so doing, but he persisted, telling them to stand at one side, so that if, when he should touch the wire, he should fall, he would not hurt them, and after making a second attempt did succeed in touching the wire, from which he received the injury complained of. There is no evidence with respect to the insulation of the wire, except what may be inferred from the circumstances just narrated, and none that the defendant, its agents or servants, had any knowledge or notice of the previous occurrence mentioned by the boys, or that their apparatus was out...