Macon v. Paducah St. Ry. Co.

• Citation: 62 S.W. 496,110 Ky. 680
• Parties: MACON v. PADUCAH ST. RY. CO. et al. [1]
• Decision Date: 26 April 1901
• Court: Kentucky Court of Appeals

62 S.W. 496

110 Ky. 680

MACON v. PADUCAH ST. RY. CO. et al. ^[1]

Court of Appeals of Kentucky.

April 26, 1901

Appeal from circuit court, McCracken county.

"To be officially reported."

Action by Willie Macon, by next friend, against the Paducah Street-Railway Company and Paducah Electric Light Company to recover damages for personal injuries. Judgment for plaintiff for only a part of the amount claimed, and he appeals. Reversed.

Bishop & Hendricks, for appellant.

GUFFY J.

This action was instituted by the appellant against the appellees Paducah Street-Railway Company and Paducah Electric Light Company, to recover damages for injury sustained by the gross negligence of the defendants. The substance of the negligence complained of is: That the defendants had established various posts and overhead wires along and over the streets of the city of Paducah, and were engaged in furnishing electric power to run and operate a street railway in said city, and to furnish lights to the inhabitants thereof. That about April 26, 1898, the defendants had, at or near the corner of Sixth and Norton streets, and as part of said electric system, a post, and about 40 feet from the corner of Sixth street stood another post, and to these posts were attached electric wires charged with electricity, and were being used by the defendants in the transaction of their business; and at or near said post and about 40 feet from the corner of Sixth and Norton streets, on south side of Sixth street, the said defendants suffered and permitted what is known and commonly called a "live wire"--that is, a wire fully and heavily charged with electricity--to hang down from one of their posts so operated and used by them, to and near the ground on said Sixth street. That the said "live wire" so charged with electricity was dangerous to the lives and safety of all persons traveling along or across said street. That plaintiff was an infant about 12 years of age, and was sent by his mother to a neighbor's, and it was necessary for him to pass under or near said "live wire," and while so engaged in passing along said public street as aforesaid, without any negligence on his part, he came in contact and collision with said "live wire" so hanging down from defendant's post to, on, or near the surface of said street and ground, and was thrown by the electric current imparted to him from said "live wire" to the ground, and was terribly burned and injured, so as to make him a cripple for life, and was burned to the hollow of his body, his thumb burned off entirely, and his body otherwise burned and injured. It was further alleged that the said live wire was by defendants negligently suffered and permitted to hang down from the post aforesaid to the ground so as to be exceedingly dangerous to persons traveling thereon, and that plaintiff suffered the burns and injuries in consequence of the gross negligence of both the defendants in suffering and permitting said live wire to so hang as aforesaid; that each and both defendants knew of the dangerous condition of said live wire, or could have known by ordinary diligence, and could have, by the use of ordinary diligence, or any diligence, repaired said wire removed and placed same at such elevation from the ground as that no harm could or would have resulted to any one; that it was their duty to do so, and the defendants, well knowing the dangerous condition of the live wire, permitted it to remain in said condition for more than two weeks before said injury that plaintiff was damaged by the burns and injuries aforesaid in the sum of $10,000. The answer may be treated as a denial that they suffered the live wire charged with electricity to hang down as charged by plaintiff, or that they knew, or had reason to know, that any live or other wire at the time mentioned was hanging from a wire used in their electric light or power plant at or near the place mentioned by plaintiff; nor did they have any information that such a wire was so hanging; that, if such wire had been hanging from their system so as to touch the ground, it would have manifested itself in the operation of their electric plant that after the accident complained of they discovered the wire hanging from the electric wire which was a part of their system, but that said wire so hanging down within a few feet of the ground was not a wire used, or ever had been used, or could ever have been used in the operation of defendants' business; but that said wire was a loose wire, which had been used by the East Tennessee Telephone Company in their system of operating an electric telephone, and that same had been cut by the said telephone company, or some stranger not connected in any way with these defendants, and had been allowed to fall across the wire belonging to these defendants, without their knowledge or consent; and that defendants did not know or had no information that said wire was so hanging; and they deny that said wire was there by the carelessness or negligence of defendants. Defendants admit that plaintiff was injured by coming in contact with said wire, but aver that he willfully and knowingly caught hold of said wire with his hands well knowing, and after being informed, that, if he did so, it would shock and burn him; that he was informed immediately before he caught hold of the wire that, if he did so, it would shock and burn him, but he stated that he was not afraid of same, and against the protest and advice of his friends he willfully caught hold of said wire, and was thus burned; which negligence is pleaded in bar of plaintiff's right to recover. It is further stated in the answer that "defendants had no knowledge or information as to whether said wire had remained hanging towards the ground for two weeks or not." It is further denied that plaintiff was damaged in the sum of $10,000, or any other sum. By an amended petition it is alleged, in substance, that the live wire which injured plaintiff was either a wire which had been used by the East Tennessee Telephone Company, or by some other person unknown, or else it was the wire of defendants; that one or the other of these things is true, but plaintiff does not know which. The amended petition also repeats the other averments of negligence charged to the defendants. The reply of plaintiff is a traverse of all the defensive averments in defendants' answer. By a further amended petition it is alleged that defendants' electric system in the city of Paducah, and especially at the point where the wire hung down with which the plaintiff came in contact, was defectively and insufficiently insulated. They say that especially at the time and place where the said hanging wire was that caused the injury to plaintiff, the place of contact between the wires was not insulated at all; and, if it was insulated, it was defectively and insufficiently done. It was further alleged that defendants could have kept said wires...