Laurel Light & Ry. Co. v. Jones

• Decision Date: 27 October 1924
• Docket Number: 23932
• Citation: 102 So. 1,137 Miss. 143
• Parties: LAUREL LIGHT & RY. CO. v. JONES. [*]
• Court: Mississippi Supreme Court

102 So. 1

137 Miss. 143

LAUREL LIGHT & RY. CO. v. JONES. ^[*]

No. 23932

Supreme Court of Mississippi

October 27, 1924

Suggestion of Error Overruled Dec. 15, 1924.

(In Banc.)

1. ELECTRICITY. Placing uninsulated electric wire in tree branches adjoining school playground held negligence.

A person or corporation using the dangerous agency of electricity is bound to exercise the highest degree of care and it is negligence to place an uninsulated feed wire in the branches of trees adjoining a public school playground where such trees are of such nature as would attract children to climb them.

2 ELECTRICITY. Company held not relieved from negligence on theory of intervening efficient cause.

Where wires highly charged with electricity and uninsulated are strung through tops of trees where children habitually play and a school boy eleven years of age attracted to the tree and learning that a shock would be received if a person came in contact with the wires so exposed, placed a hay wire on the feed wire so negligently exposed, and a third person was injured by coming in contact with the hay wire, the company is liable for the injury; the negligence of the company in having such a continuing situation being a contributing proximate cause of the injury.

3. DAMAGES. Ten thousand dollars for permanent injuries to eleven year old boy by contact with negligently placed uninsulated electric wire held not excessive.

The facts of the case examined and considered; a verdict for ten thousand dollars for an injury received as shown in the opinion is not excessive.

ANDERSON, J., dissenting.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.

Action by Silas Jones, by next friend, against the Laurel Light & Railway Company. From a verdict for plaintiff, defendant appeals. Affirmed.

Verdict affirmed.

Shannon & Schauber, for appellant.

At the conclusion of the plaintiff's testimony, the defendant made a motion to exclude all the testimony introduced by the plaintiff and direct the jury to return a verdict for the defendant. This motion was overruled by the court, which is the basis of the first assignment of error on behalf of appellant. After both plaintiff and defendant had rested their case, defendant asked for a peremptory instruction, which was refused by the court, and which refusal is the basis of the fourth assignment of error on behalf of appellant.

In order for liability to be fastened upon the appellant, it was necessary that this negligence, if any, should be the proximate cause of the plaintiff's injury. Billingsly v. I. C. R. R. Co., 100 Miss. 612; A. T. & S. F. Ry. Co. v. Samuel Calhoun, 53 L.Ed. 671; Green v. West Penn. Ry. Co., 55 L. R. A. (N. S.) 1915-C 151; Stark v. Muskegon Traction & Lighting Co., 1 L. R. A. (N. S.) 822; Seith v. Commonwealth Electric Co., 24 L. R. A. (N. S.) 978; J. S. Moody v. Gulf Refining Co., 8 A. L. R. 1234; Afflick v. Bates, 21 R. I. 281, 79 Am. St. Rep. 801; Bettz v. Brooklyn, 41 N.Y.S. 1009, 10 A.D. 382; 1 Cooley on Torts (3 Ed.), 99; Wharton on Negligence, sec. 134; 22 R. C. L. 113, sec. 3; 22 R. C. L. 124, sec. 11; Cole v. German Savings & Loan Society, 63 L. R. A. 416; Solles v. Moore, 21 L. R. A. 723; Wood v. Penn. R. R. Co., 35 L. R. A. 199; Stone v. Boston & Albany R. R. Co., 41 L. R. A. 794; Note in Cahill v. Stone & Co., 19 L. R. A. (N. S.) 1094; Parker v. Charlotte Electric R. Co., 169 N.C. 68, 85 S.E. 33; Johnston v. New Omaha Electric Light Co., 78 Neb. 24, 17 L. R. A. (N. S.) 435; Charette v. L'Anse, 154 Mich. 204, 117 N.W. 737; Adams v. Bullock, 227 N.Y. 208, 125 N.E. 93; Graves v. Washington Water Power Co., 44 Wash. 675, 11 L. R. A. (N. S.) 452.

The sixth instruction granted plaintiff on the trial of the case in the lower court is in these words: No. 6-- "If you find for the plaintiff, the form of your verdict may be, 'We, the jury, find for the plaintiff, and assess his damages at $ , not to exceed twenty-five thousand dollars, the amount sued for.'" This form of an instruction has been especially condemned by this court in the recent case of Gulf & Mississippi Coast Traction Co. v. Keebler, Alabama & Vicksburg Ry. Co. v. Dennis, 91 So. 4; Gulf & Mississippi Coast Traction Co. v. Keebler, 94 So. 705.

Instruction No. 8 granted the plaintiff by the lower court is in these words: No. 8-- "The proximate cause in law does not necessarily mean the act immediately precedes in point of time, but the act next to in point of cause to the accident." This instruction was granted by the court to the plaintiff, without notice to appellant or its attorneys, after the case had been closed by both plaintiff and defendant, and one-half of the argument made by counsel. That is Mr. Taylor on behalf of the plaintiff had spoken, and Mr. Arnold on behalf of the defendant had spoken, when the court granted Mr. Collins this instruction. The counsel for defendant prepared a bill of exceptions, setting out this fact, and also, setting out several objectionable statements made by Mr. Collins in the closing argument of the case, but the Judge in the lower court declined to approve appellant's bill of exceptions. However, on the motion for a new trial, evidence was introduced by the appellant to show that this instruction was granted by the court after Mr. Taylor had spoken, and while Mr. Arnold was making his argument on behalf of the appellant. In addition to our objection to have this instruction granted out of time, which we think was an injustice to the appellant, we think the instruction erroneously states the law, and is especially harmful in the case disclosed by this record in which an independent wrongful act just precedes the injury to the plaintiff. In the 3rd volume of Words & Phrases, 2nd series, p. 1333, proximate cause is several times defined as the immediate cause which was the phrase used in the defendant's instructions.

J. T. Taylor, for appellee.

The first thing the counsel for appellant calls the court's attention to, is the fact that the court below denied defendant a peremptory instruction, and called the court's attention to a part of the testimony of witness Duke Cooley. There is no contention that Duke Cooley was under the control of the defendant in this case, but we do contend, and the undisputed evidence bears out our contention, that the defendant, Laurel Light & Railway Co. had full and complete control over their electric wires and also, the control over the fact as to whether or not these persimmon trees should grow up and mingle their branches among these wires of defendants highly charged with a deadly current of electricity. The facts in this case show clearly that the defendant the Laurel Light & Railway Co. is liable. Meyer v. King, 16 So. 245; Giles v. Canal Co., 36 Am. St. Rep. 807-861.

In a case like this, the supreme court of Mississippi has laid down the rule and in the case of Temple v. McComb City Electric Light & Power Co., 42 So. 874, this thing is used, where a small boy, climbing an oak tree having abundant branches is injured by coming in contact with an electric wire passing through the trees and negligently permitted by the company to remain uninsulated, the company is liable, since it is bound to take notice of the immemorial habit of small boys to climb such trees. Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617; Yazoo City v. Birchett, 42 So. 569. "Electric Companies must take notice of instinct of boys to climb trees." Godfrey v. Kansas City Light & Power Co., 253 S.W. 233.

Counsel for appellant contended that because Duke Cooley hooked the hay wire over defendant's uninsulated and highly charged feed wire, that the defendant, Laurel Light & Railway Co. should not be held liable. Now, that would be true, we concede, if the defendant, Laurel Light & Railway Co. had exercised such care and caution as the law requires them to exercise when using the highly dangerous element of electricity. Cumberland Telephone & Telegraph Co. v. Coshahan et al., 62 So. 824; Hale on Torts, 217.

It must be observed that there is a great deal of difference between an intervening responsible agency and an intervening irresponsible agency, for instance, children. Binford v. Jones, 82 Ind. 426, 42 Am. St. Rep. 508.

In reference to intervening negligent acts, it is generally held that where a person, by his negligence produces a dangerous condition of things, which does not become active for mischief, until another person has operated upon it by the commission of another negligent act, which might not unreasonably be anticipated to occur; in that case the original act of negligence is then regarded as the proximate cause of the injury which finally results. The principle is, that the first act is regarded as being continuous in its operation up to the time of the second, and therefore, for the purpose of fixing the defendant's liability, the two acts are treated as contemporaneous. Harriman v. Pittsburg etc. Railway Co., 4 Am. St. Rep. 507.

Collins & Collins, for appellee.

It is a well-established rule of this court that where a case is submitted to a jury under proper instructions, this court will not disturb the verdict of the jury unless their verdict and findings are manifestly contrary to the overwhelming weight of the testimony, or unless there were no facts upon which for them to base their verdict. This rule is so well established by this court that we presume it will not be disputed or contradicted by counsel for appellant. The only question presented to the jury in this case as shown from the record for their determination was the question as to what was the proximate cause of the injury to appellee, and we submit that the court was correct in submitting this question to the jury. Co...