Kentucky & West Virginia Power Co. v. Riley's Adm'r

• Court: Kentucky Court of Appeals
• Writing for the Court: WILLIS, J.
• Citation: Kentucky & West Virginia Power Co. v. Riley's Adm'r, 233 Ky. 224, 25 S.W.2d 366 (Ky. Ct. App. 1930)
• Decision Date: 25 February 1930
• Parties: KENTUCKY & WEST VIRGINIA POWER CO. et al. v. RILEY'S ADM'R.

25 S.W.2d 366

233 Ky. 224

KENTUCKY & WEST VIRGINIA POWER CO. et al. v. RILEY'S ADM'R.

Court of Appeals of Kentucky

February 25, 1930

Appeal from Circuit Court, Perry County.

Action by Allen Riley's administrator against the Kentucky &amp West Virginia Power Company and the Wakenva Coal Company. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Joe W Craft and W. E. Faulkner, both of Hazard, for appellants.

Jesse Morgan, H. C. Johnson, and J. T. Bowling, all of Hazard, for appellee.

WILLIS J.

Allen Riley, a boy about 12 years old, was electrocuted by a live wire dangling from a pole upon or adjacent to a highway in the city of Hazard. His administrator instituted an action against the Kentucky & West Virginia Power Company and the Wakenva Coal Company to recover damages for the death alleging that it was caused by the concurring negligence of the two companies. Separate answers were filed, each traversing the averments of the petition. The power company also pleaded that the wire which electrocuted Riley was controlled and maintained by its codefendant, the Wakenva Coal Company; that it was broken during a severe storm about midnight preceding the day Riley met his death; that the defendant could not, by the exercise of reasonable diligence, have prevented the accident, since it did not know or have notice that the wire was broken or dangling by the roadside, and that it could not, by the exercise of any diligence, have known of the breaking of the wire by the storm. It also pleaded contributory negligence on the part of the deceased. The Wakenva Coal Company, in addition to a traverse of the allegations of the petition, pleaded that the wire mentioned was one of the lines of its codefendant, Kentucky & West Virginia Power Company, over which electric power was furnished to a part of its mining camp, and that some time after midnight immediately preceding the day of Riley's death the wire was broken by a storm, and that it could not, by the exercise of reasonable diligence, have discovered and corrected the danger in time to have prevented the accident. The affirmative defenses were appropriately denied, and a trial before a jury resulted in a verdict of $15,000 in favor of the plaintiff against both defendants. A new trial was requested and refused, resulting in this appeal.

Numerous grounds for reversal of the judgment are urged, but, since a new trial is necessary, and none of the matters complained of will likely occur again, it is unnecessary to consider anything except the rulings of the court respecting the admission of testimony and the instructions to the jury. It appears that the electric line was broken down in a windstorm and the live wire extended nearly to the ground. The accident to the boy happened about 9:00 o'clock the next day. It is argued that the evidence of Henry Johnson respecting the condition of the wire a few days subsequent to the accident was incompetent. Like complaint is made respecting the testimony of another witness.

It appeared that the conditions had not been altered from the time of the accident, and, so long as the situation was unchanged, time was not material. The conditions shown tended to prove what they had been at the time of the accident. A wire carrying a deadly current of electricity was dangling 8 or 10 inches above the level of the roadway. It was allowed to remain for several hours after the storm, and those facts constituted evidence of negligence on the part of both companies. It was their duty to exercise the highest degree of care to discover the danger and to cut off the current or repair or remove the dangerous wire.

Complaint is made also respecting the admission of the testimony of Luther Riley, father of Allen Riley. The evidence was comparatively unimportant. It related to no transaction with the deceased, or to any conversation with him, or to any act or omission of his. It concerned conditions discovered after the death of the boy which any witness could see, and it was not improper to permit the father to testify respecting them. Chesapeake & O. R. Co. v. Perkins, 127 Ky. 110, 105 S.W. 148, 31 Ky. Law Rep. 1350. The testimony of David as to the discontinuance of electric service and restoration thereof without inspection of the lines was competent, but the references to nonpayment of bills by the mining company should be omitted as immaterial in itself and unnecessary to connect anything that was material.

It is argued that the appellants were entitled to a directed verdict upon the ground that there was no proof of negligence. The argument overlooks the duty resting upon persons who distribute a dangerous current of electricity. They must exercise the highest degree of care to protect persons along the highways from coming in contact with the danger, and that duty is not performed when a live wire carrying a deadly current is permitted to remain for hours in a public road in a populous community. The fact that there had been a storm was material only in so far as it explained if it did so, whether the breaking of the wire was the result of negligence or the consequence of an unexpected natural force which the highest degree of care could not have guarded against. But if the negligence of the companies and the incidents of the storm concurred to cause the injury, the liability is not defeated. Cohen et al. v. Home Telephone Co., 179 Ky. 107, 200 S.W. 344; Evans v. E. K. T. & T. Co., 124 Ky. 620, 99 S.W. 936, 30 Ky. Law Rep. 833; Union Light, Heat & Power Co. v. Lunsford, 189 Ky. 785, 225 S.W. 741; Mitchell v. Charleston Light & Power Co., 45 S.C. 146, 22 S.E. 767, 31 L. R. A. 577; Paducah Railway Co. v. Bell, 85 S.W. 216, 27 Ky. Law Rep. 428; Mangan's Adm'r v. Louisville Electric Light Co., 122 Ky. 476, 91 S.W. 703, 29 Ky. Law Rep. 38, 6 L. R. A. (N. S.) 459; Lewis v. Bowling Green Gaslight Co., 135 Ky. 611, 117 S.W. 278, 22 L. R. A. (N. S.) 1169. Even though the dangerous condition was created solely by the storm, it was nevertheless the duty of the defendants in the exercise of the highest degree...