Lexington Ry. Co. v. Fain's Adm'r

• Decision Date: 28 January 1903
• Citation: 71 S.W. 628
• Parties: LEXINGTON RY. CO. v. FAIN'S ADM'R.
• Court: Kentucky Court of Appeals

71 S.W. 628

LEXINGTON RY. CO. v. FAIN'S ADM'R.

Court of Appeals of Kentucky.

January 28, 1903

Appeal from circuit court, Fayette county.

"Not to be officially reported."

Action by A. J. Fain, as administrator of the estate of E. S. Fain deceased, against the Lexington Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

R. C Stoll, Morton & Darnall, and Breckinridge & Shelby, for appellant.

Allen &amp Duncan, for appellee.

SETTLE J.

One Eastin Fain, a boy 14 years of age, was killed in the city of Lexington December 18, 1899, by an electric shock received from one of the wires of appellant. His father, the appellee A. J. Fain, having qualified as administrator of his estate, brought suit against appellant in the Fayette circuit court, and upon the trial recovered a verdict and judgment for $4,500. A new trial was refused by the lower court, and appellant asks a reversal of that judgment by this court.

It appears from the record that appellant, at the date mentioned, was operating an electric light plant in Lexington, and furnishing electric light to the city by means of arc lamps located at various places therein. One of the arc lamps was suspended over the center of the intersection of Chestnut and Sixth streets, and was attached to a wire rope strung between two poles; one erected on the southwest corner of Sixth and Chestnut streets, and the other on the corner diagonally opposite. To this wire, called the "span wire," was fastened a pulley wire, which ran from the top of the arc lamp, then passed through a pulley fastened to the suspension wire at the center of the street thence to a pole situated on the southwest corner of Chestnut and Sixth streets, there through another pulley at the side of the pole, thence down the street side of the pole to a reel, which was located on the side of the pole about four feet six inches from the ground. To this reel the pulley wire was attached, and by means of the reel the pulley wire was wound and unwound, and the arc lamp raised and lowered. The pole to which the reel and pulley wire were thus attached was in the pavement or sidewalk, about 30 inches inside of the curb intersection of the sidewalk of the streets. The main wire connected with the power house, and over which the electric current is conveyed, runs along the east side of Chestnut street. Two wires make connection with the main wire at the pole located on the northeast corner of Sixth and Chestnut streets, and these two wires, passing diagonally across Chestnut street in manner as the span wire, were attached to the pole on the southwest corner of said streets, and thence taken back and connected with the lamp. These wires, called "feed wires," conduct the electrict current through the lamp, and produce illumination at the carbon points. The span and pulley wires are between the feed wires, and a few inches apart from the feed wires at a point where attached to the pole, and even closer at other points. It is alleged in the petition, and, we think, conclusively established by the evidence, that on the date named, and for some time prior thereto, the appellant negligently permitted the pulley wire mentioned to be and remain without any or proper insulation, and to become at frequent intervals, if not continuously, heavily and dangerously charged with electricity. While passing along Chestnut street about 7 o'clock in the evening, and evidently without knowing that the pulley wire was charged, or likely to become charged, with electricity, appellee's intestate touched or took hold of it with his hand, whereby he received the charge of electricity which caused his death. The intestate was in company with his brother, Elmore, at the time of the catastrophe, who was a year or more his junior in point of age. The brothers were on their way to a temperance lodge not far from their home. In his testimony given on the trial, Elmore said, in reference to what happened to his brother: "We got to Chestnut street, and the light wasn't burning, and my brother said it was mighty dark along here. That light wasn't burning. We went on down the street. I went on the right side and he went on the left side [of the pole], and as he got to the pole he caught hold of the wire, and, as soon as he touched it, it got to dangling and throwing him around, and directly threw him out in the street about six or eight feet." The question was then asked the witness, "Did he shake the wire himself?" to which he replied, "No, sir." The contention of appellant's counsel seems to be that Eastin Fain deliberately pulled and jerked the pulley wire, and that his death was caused by the pulley wire being thus forced into contact with one of the feed wires at a point where the insulation was defective. In support of this contention the testimony of Robert Clardy is cited, who testified to having seen two or three flashes at the lamp, appearing before the flame came out on the wire between the lamp and the pulley. Clardy's wife and the negro Reuben Edwards testified in some sort to the same effect, but the reliability of this testimony is by no means conclusive. On the other hand, Elmore Fain, who is an intelligent...