Kelly v. City of Higginsville

• Decision Date: 21 December 1914
• Docket Number: No. 11306.,11306.
• Citation: 171 S.W. 966
• Parties: KELLY et ux. v. CITY OF HIGGINSVILLE.
• Court: Missouri Court of Appeals

171 S.W. 966

KELLY et ux. v. CITY OF HIGGINSVILLE.

No. 11306.

Kansas City Court of Appeals. Missouri.

December 21, 1914.

1. NEW TRIAL (§ 163)—ORDER GRANTING— EFFECT.

The granting of a new trial on the sole ground that the verdict was excessive in effect overruled the other grounds assigned in the motion.

2. APPEAL AND ERROR (§ 977) — REVIEW — DISCRETION OF COURT — NEW TRIAL.

The rulings of the trial court on a motion for a new trial on the grounds that the plaintiff did not establish a case for the jury, that the verdict was against the weight of the evidence, and was the result of passion and prejudice, and that it was excessive, while presumptively

correct, may be reversed if there was an abuse of the court's discretion.

3. APPEAL AND ERROR (§ 867)—REVIEW— QUESTIONS PRESENTED—GROUNDS FOR NEW TRIAL.

Where the trial court granted a new trial to the defendant on the sole ground that the verdict was excessive, all the grounds assigned in the motion may be considered on plaintiff's appeal from that order, since if the ruling was right, it will be affirmed, though the reasoning was wrong.

4. ELECTRICITY (§ 19)—ACTIONS—EVIDENCE —NEGLIGENCE.

In an action against a city for the death of plaintiff's son, evidence held sufficient to take to the jury the question whether the city was negligent in maintaining its electric light wires.

5. EVIDENCE (§ 594)—WEIGHT AND SUFFICIENCY —UNCONTRADICTED TESTIMONY.

The jury are not required to accept the testimony of city employés that they tested the electric light wires shortly before the accident and found no leakage of electricity therefrom, though such testimony is uncontradicted.

6. ELECTRICITY (§ 14)—CARE REQUIRED—USE OF CITY STREETS.

Those who transmit electricity on wires along a city street must exercise the highest degree of care to protect persons rightfully using the streets from injury.

7. ELECTRICITY (§ 19) — ACTIONS—RES IPSA LOQUITUR.

Proof that a pedestrian on a public street, while exercising due care, was injured by contact with an escaping electric current, establishes prima facie negligence of the owner of the wire from which it escaped, and the burden is upon such owner to show that the escape was in spite of the exercise of the highest care.

8. ELECTRICITY (§ 19)—ACTIONS—EVIDENCE —NEGLIGENCE.

Where insulation of an electric wire had been defective and a cross-arm on the pole broken and loose for some time, and the wire was brought in contract with a guy wire during a storm, proof that shortly before the accident the owner of the wire tested it and found no leakage does not establish the exercise of the required degree of care on the part of the owner.

9. ELECTRICITY (§ 19) — ACTIONS FOR INJURIES —EVIDENCE—PROXIMATE CAUSE.

In an action against a city, as the owner of an electric light wire, for the death of plaintiff's son, evidence held sufficient to take to the jury the question whether the boy was killed by an electric shock, though no burn or mark was found on his body.

10. ELECTRICITY (§ 19)—ACTIONS FOR INJURIES — EVIDENCE — CONTRIBUTORY NEGLIGENCE.

In an action against a city for the death of a boy killed by an electric shock, evidence held not to show, as a matter of law, that the boy was contributorily negligent.

11. DEATH (§ 95)—MEASURE OF DAMAGES— SERVICES OF CHILD.

The measure of a parent's damage for the death of a minor child is the pecuniary value of the child's services during his minority and the expenses incurred by his death, less the expense of his support and maintenance, and no damages can be allowed for mental anguish or distress for the death or loss of society of the child.

12. DEATH (§ 99) — DAMAGES — EXCESSIVE DAMAGES — SERVICES OF CHILD.

An award of $2,300 for the loss of services of a 17 year old boy who was going to school at the time, and who earned $2 a day in vacation, is excessive, and should be reduced to $1,500.

13. APPEAL AND ERROR (§ 1140) — AFFIRMANCE —REMITTITUR.

Where the trial court rules that the amount of the verdict was excessive, but the result only of an honest overestimate of the amount recoverable, the appellate court may order a remittitur that will reduce the judgment to the proper sum.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by A. H. Kelly and wife against the City of Higginsville. A verdict for the plaintiffs was set aside and new trial granted by the trial court, and plaintiffs appeal. Reversed and remanded, on condition that plaintiffs file a remittitur, otherwise to stand affirmed.

Aull & Aull, of Lexington, for appellants. Charles Lyons, of Lexington, G. W. Stegen, and J. P. Chinn, both of Higginsville, for respondent.

JOHNSON, J.

Plaintiffs, who are husband and wife, sued to recover damages for the death of their minor unmarried son, which they charge was caused by negligence of defendant. The answer is a general denial and a plea of contributory negligence. A verdict was returned for plaintiffs in the sum of $2,500, but afterward defendant's motion for a new trial, which alleged a number of grounds, was sustained on the sole ground of an excessive verdict. Plaintiffs did not offer to enter a remittitur, and the court did not indicate its views concerning the extent of the excessiveness. Plaintiffs appealed.

Defendant insists that the court did not err in granting a new trial on the ground stated in the order, but did err in not sustaining the motion upon other grounds, the principal one of which was alleged error in overruling defendant's request for a directed verdict.

Young Kelly was 17½ years old at the time of his death, which occurred in the night of July 7, 1909, on one of the public streets of Higginsville. He was walking north on the sidewalk on the east side of Russell street, and had just passed over the crossing of Ambrose street when suddenly he sank down with a scream, attempted unsuccessfully to rise, struggled a brief moment, and then expired. He was a strong, vigorous boy, in the best of health, and a post mortem examination failed to reveal any weakness of the heart or other symptoms of disease. The doctors who made the examination testified to the absence of any burns or other marks of violence on the body, but witnesses introduced by plaintiffs testified to a mark resembling a burn across the inside of the fingers of the right hand. The electric lighting plant, which furnished electricity for both public and private consumption, was owned and operated by defendant, and one of its high-power lines ran north and south along the curb line on the west side of Russell street. One of the poles of this line was at the southwest corner of the intersection of Ambrose street. It carried three wires attached to a cross-arm in the usual manner. Heavy currents were transmitted by each of these wires, which were insulated. There is evidence tending to show that the insulation had been allowed to become and remain in a worn and defective condition, and that on account of the cross-arm having become defectively fastened to the pole, the wires were brought into contact with, or close proximity to, guy wires attached to the top of the pole, permitting the escape of electricity from its appointed channels. A span wire attached to the top of the pole crossed diagonally over the street intersection to the top of a guy pole at the northeast corner. The guy pole, which was set at the corner just outside the west line of the sidewalk, was held in place by guy wires, one of which extended from the top of that pole downward to a point 9 feet north of the pole and about 20 inches west of the sidewalk, where it was fastened to an iron rod, which in turn was fastened to a "dead man" buried in the ground. Neither this guy wire nor the span wire was intended to be charged with electricity, but, owing to the defects at the top of the pole at the southwest corner, electricity was escaping to the guy wires attached to the top of that pole, and was conducted by the span wire to the top of the guy pole on the northeast corner, from which it traveled over the guy wire and iron rod to the ground. The day and evening had been rainy, and sputterings of electric fire had been noticed at the ring on the top of the iron rod to which the guy wire was attached. The ring had grown rusty, and as rust is an impediment to the free passage of electric currents, the flashes were due to such impediment, which hampered, but did not destroy, the circuit. The evidence of plaintiffs tends to show that the defects at the top of the line pole we have noted had been in existence long enough for defendant, in the exercise of proper care, to have discovered and repaired them. On the other hand, the evidence of defendant is to the effect that tests made that afternoon showed the absence of a short circuit on that line, and that the flow of electricity over the span and guy wires necessarily began after that test. Young Kelly was stricken at a point about midway between the guy pole and the point where the guy rod entered the ground. When his struggles ended his body was in the gutter two or three feet west of a line drawn from the guy pole to the iron rod. Evidently when stricken he was walking close to the outer edge of the sidewalk, and it is the contention of plaintiffs that he must have brushed against, or in some way, touched, the guy wire and received from it a lethal shock.

In granting a new trial on the sole ground that the verdict was excessive the court, in effect, overruled the other grounds assigned in the motion. Among such other...