Johnston v. New Omaha Thomson-Houston Electric Light Company

• Decision Date: 05 January 1907
• Docket Number: 14,602
• Citation: 110 N.W. 711,78 Neb. 24
• Parties: JAMES W. JOHNSTON, APPELLEE, v. NEW OMAHA THOMSON-HOUSTON ELECTRIC LIGHT COMPANY, APPELLANT. [*]
• Court: Nebraska Supreme Court

110 N.W. 711

78 Neb. 24

JAMES W. JOHNSTON, APPELLEE, v. NEW OMAHA THOMSON-HOUSTON ELECTRIC LIGHT COMPANY, APPELLANT. ^[*]

No. 14,602

Supreme Court of Nebraska

January 5, 1907

APPEAL from the district court for Douglas county: HOWARD KENNEDY JUDGE. Reversed.

REVERSED.

Greene Breckenridge, Matters & Kinsler, for appellant.

T. W Blackburn and R. S. Horton, contra.

AMES, C. OLDHAM and EPPERSON, CC., concur.

OPINION

AMES, C.

This is an appeal from a judgment for damages for a personal injury to a son of the plaintiff, a lad 12 years of age.

There is a foot passage way 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 maintains trolley 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 lighting 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 to 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 of repair, if it was so. At the close of the trial the defendant asked a peremptory instruction in its behalf, which the court refused, and submitted the case to the jury, who returned a verdict for the plaintiff, from a judgment on which this appeal is prosecuted.

We think that the instruction ought to have been given. It does not appear that the defendant's structure was unskillfully or negligently made, or that it differed in any respect from such as are required by the regulations and...