Parsons v. Appalachian Elec. Power Co.
| Decision Date | 23 October 1934 |
| Docket Number | 7825. |
| Citation | 176 S.E. 862,115 W.Va. 450 |
| Parties | PARSONS v. APPALACHIAN ELECTRIC POWER CO. |
| Court | West Virginia Supreme Court |
Submitted October 9, 1934.
Syllabus by the Court.
1. It is not necessary to prove actual knowledge on the part of the representatives of a corporation transmitting electricity of the fact that children were accustomed to climb onto the superstructure of a public bridge where its high voltage wires were strung, in order to place upon the company the duty of exercising a high degree of care for their safety. Proof showing circumstances from which the company's representatives should have gained such knowledge is sufficient for the purpose.
2. A boy eleven years old, concerning whom there is proof tending to overcome the presumption that he was incapable of contributory negligence, some time after being warned of the danger, climbed upon an upright in the superstructure of a public bridge, where, at a distance of between seventeen and eighteen feet from the floor of the bridge, he was killed by coming in contact with defendant's high voltage wires strung within twenty-six inches of the upright on which the boy was climbing. Held, the question of contributory negligence was for the jury.
Error to Circuit Court, Logan County.
Action by E. V. Parsons, administrator of the estate of Densil Duty deceased, against the Appalachian Electric Power Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
N. D Waugh and Mark T. Valentine, both of Logan, for plaintiff in error.
Chas L. Estep and John Chafin, both of Logan, for defendant in error.
Densil Duty, a boy of eleven years of age and plaintiff's decedent, lost his life on the 27th day of September, 1932 by coming in contact with a high tension electric wire carrying 6,600 volts owned and maintained by the defendant, Appalachian Electric Power Company, and stretched across a public bridge over the Guyandotte river at Chapmansville in Logan county. The bridge carried both vehicular and foot traffic and was in three spans with a steel superstructure. The largest span was in the middle, a smaller span was on the Chapmansville side of the bridge, and the smallest span, and the one on which the boy was injured, was at the end of the bridge away from Chapmansville. The electric line was stretched on wooden cross-arms that extended out from the superstructure or framework of the bridge, on the outside, between seventeen and eighteen feet above the bridge's floor. These arms carried the wire, at some points seventeen inches from the steel superstructure of the bridge, and at the point where the boy came in contact with the wire, a distance of twenty-six inches from the superstructure. The testimony shows that plaintiff's decedent resided with his parents on the side of the river opposite Chapmansville, and that he, together with some thirty or forty other children, was accustomed to cross the bridge several times daily in going to school in Chapmansville. On the day that he came in contact with the wire, he, together with one or two other boys, climbed into the superstructure of the bridge. The Duty boy was climbing a vertical beam or truss of the bridge, the dimensions of which do not directly appear in the evidence, but which was made of two flat and solid steel uprights connected at the edges by diagonal lattice work of steel strips which formed a footing in the triangular opening between the steel strips and side pieces that it was possible to use in climbing it. It is inferable from the testimony that the Duty boy was climbing the beam by putting his arms partially around it as he ascended and that when he reached the approximate level of the wire, he either slipped or fell against the wire or put out his hand and touched it in his climbing. At any rate, he made contact with the wire by touching it with his left hand.
There is direct testimony that on two or three occasions the boy had been warned of the danger of climbing the superstructure of the bridge, both on account of the danger inherent in that sort of play and on account of the danger that existed from the presence of the electric wires. There is evidence also that children had, for a number of years, been accustomed to climbing onto the superstructure of the bridge, and that on several specific occasions witnesses had seen boys playing in the superstructure of the bridge.
This action was brought in the circuit court of Logan county, tried to a jury, a verdict in favor of the plaintiff in the sum of $7,000 was rendered, and from the judgment pronounced on that verdict, this writ of error is prosecuted. There are but two assignments:
First, that the record does not disclose primary negligence on the part of the defendant.
Second, that the record does disclose contributory negligence on the part of plaintiff's decedent, and that in either case the trial court should have directed a verdict in favor of the defendant.
A point is raised as to an instruction given on behalf of the plaintiff, which told the jury in effect that if the defendant knew, or by the exercise of reasonable care should have discovered, that children were accustomed to playing in the superstructure of the bridge, that it thereupon became its duty to anticipate that they might do so and to either safely insulate or remove their wires from danger of coming in contact with children so playing. This assignment, however, is interwoven with the assignment predicated upon the lack of negligence on the part of the defendant, and the proposition of law involved in the instruction will be discussed in connection with that assignment of error.
We are of the opinion that the case cannot be reversed upon any of the assigned grounds of error.
As to the matter of the defendant's primary negligence, we do not believe that it is necessary to decide whether the case falls within that class of cases wherein by reason of the circumstances shown, defendant electric company must have anticipated that persons would go about their wires, whether or not it is shown that any persons have actually gone there. In the case of Runyan v. Water & Light Co., 68 W.Va 609, 71 S.E. 259, 35 L.R.A. (N. S.) 430, for example, it was held that an electric company must anticipate that workmen, such as painters, would be required to go into the superstructure of a large bridge. The question, then, would perhaps arise, whether any person outside the one single class whose presence at the place of injury must be anticipated, can recover on the same showing. In other words, because the company must anticipate the presence of workmen and guard against injury to them, does it...
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