Mayfield Water & Light Co. v. Webb's Adm'r

• Decision Date: 20 June 1908
• Citation: 111 S.W. 712,129 Ky. 395
• Parties: MAYFIELD WATER & LIGHT CO. et al. v. WEBB'S ADM'R.
• Court: Kentucky Court of Appeals

111 S.W. 712

129 Ky. 395

MAYFIELD WATER & LIGHT CO. et al. v. WEBB'S ADM'R.

Court of Appeals of Kentucky.

June 20, 1908

Appeal from Circuit Court, Graves County.

"To be officially reported."

Action by Charley M. Webb's administrator against the Mayfield Water & Light Company and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Robbins & Thomas, for appellant Mayfield Water & Light Co.

W. B Stanfield, for appellant telephone company.

W. J Webb, Webb & Seay, and Weaks & Weaks, for appellee.

HOBSON J.

The Mayfield Water & Light Company maintains a system of electric lights in Mayfield. It erected along College Cross street a line of poles 18 feet high, and at the top of the poles on a cross-arm it placed two electric wires 20 inches apart and 18 feet from the ground. After this had been done, the Home Telephone Company put up a line of poles along the street 30 feet high, and on these poles it placed wire cables containing its telephone wires. At the intersection of Sixth street, the telephone poles turned in Sixth street, and to keep its pole straight at this point it attached two guy wires to the top of the pole and ran them out to a deadman or log, buried in the ground; the guy wires running down from the top of the pole at an angle of about 45 degrees being about four feet apart at the ground and coming together at the top of the pole. The guy wires passed in about 8 inches of the electric wire. The children of the neighborhood would hold on to the upper guy wire with their hands and walk on the lower wire, and then slide down, using the wires to play upon. Charles M. Webb, a little boy 11 years old, was playing upon the wires in this way, when his head touched the electric wire, thus completing the circuit, and he was instantly killed. This suit was brought against both the electric light company and the telephone company to recover for his death. A recovery was had in the circuit court for $1,000, and the defendants appeal.

There was proof on the trial that the insulation on the electric light wire was defective, and there was also proof that whatever the condition of the insulation might have been, the result would have been the same when the little boy's head touched it while he was standing on the other wire which ran into the ground; the proof being that the insulation will not protect from injury when such a high current of electricity is carried as was used on this wire. The ground upon which the recovery is rested is that in the construction of the wires they were made attractive and inviting to children, and that the defendants were guilty of negligence in so maintaining the wires and permitting them to remain in this dangerous and unprotected condition. This court has in a number of cases held electric light companies responsible where it permitted live wires to hang in the street. Thus, in City of Owensboro v. York's Adm'r, 117 Ky. 294, 77 S.W. 1130, a little boy 12 years old discovered that a wire was hot, and, being dared by one of his companions to touch it, got on a board, took it in his hands, and was killed. A judgment for the plaintiff was sustained. To same effect, see Macon v. Paducah Street Railway Co., 110 Ky. 680, 62 S.W. 496; Lexington Railroad Co. v. Fain's Adm'r, 71 S.W. 628, 24 Ky. Law Rep. 1443; Thomas v. City of Somerset, 97 S.W. 420, 7 L. R. A. (N. S.) 963, 30 Ky. Law Rep. 131; Maysville Gas Co. v. Thomas' Adm'r, 21 Ky. Law Rep. 1690; Id., 75 S.W. 1129, 25 Ky. Law Rep. 403. But in all of these cases the wire was in the street. Here the wire was 18 feet above the street. It could only be reached by a person climbing the electric light pole or walking up the guy wire of the telephone company. In all the cases where a liability has been imposed for what is known as an attractive nuisance to children, the nuisance has been placed within their reach. We know of no case where this has been applied to things put 18 feet above the ground, which may only be reached by climbing a pole or walking up a wire. Such structures are not an invitation to children to use them. A child may climb a dead tree, and thus get hurt; but the owner of...