Sykes v. Portland

• Citation: 177 Mich. 290,143 N.W. 326
• Parties: SYKES v. VILLAGE OF PORTLAND et al.
• Decision Date: 01 October 1913
• Court: Supreme Court of Michigan

177 Mich. 290
143 N.W. 326

SYKES
v.
VILLAGE OF PORTLAND et al.

Supreme Court of Michigan.

Oct. 1, 1913.

Error to Circuit Court, Ionia County; Frank D. M. Davis, Judge.

Action by John Sykes, as administrator of the estate of John Sykes, Jr., against the Village of Portland and the Citizens' Telephone Company. Judgment for plaintiff, and defendants bring error. Affirmed.

Argued before STEERE, C. J., and MOORE, McALVAY, BROOKE, KUHN, STONE, OSTRANDER, and BIRD, JJ.

[143 N.W. 326]

Thomas E. Barkworth, of Jackson, William J. Stuart, of Grand Rapids, and R. A. Hawley, of Ionia, for appellants.

Ellis & Ellis, of Grand Rapids, and Scully & Davis, of Ionia, for appellee.

KUHN, J.

This is an appeal from a judgment recovered by the appellee, as administrator of the estate of John Sykes, Jr., deceased, against the appellants, the village of Portland and the Citizen's Telephone Company, for wrongfully causing the death of his son, said John Sykes, Jr.

The defendant the village of Portland has since 1896 maintained and operated an electric lighting plant, which is used both for municipal lighting and for furnishing light to private consumers. Prior to 1902 it had erected its wires along Brush street, an east and west street in said village. Crossing Brush street at substantially right angles are Kearney and Grant streets, and midway between these streets an alley runs north from Brush street. In 1902 a franchise was granted the Citizens' Telephone Company to erect its poles and maintain them with necessary

[143 N.W. 327]

equipment for an electric telephone system. A line of poles was placed on the alley running north and south, and wires were also stretched diagonally across Brush street and to a point in the alley about 58 feet north of the north line of Brush street. The relative situation of the poles and wires at the time of the accident which gave rise to this litigation is shown by the annexed plat, which is admitted to be approximately correct.

IMAGE

About 50 feet from the east line of the alley, on the north side of Brush street, the village had a pole from which electric light wires were extended to a pole on the west side of the alley about 79 feet north of the north line of Brush street. This pole, designated as ‘Pole No. 1’ on the plat, contained a transformer. Across the alley and a little south from this pole was a pole of the telephone company, designated as ‘Pole No. 2’ on the plat. The electric light wires were stretched underneath the telephone wires.

On the 21st day of April, 1909, plaintiff's decedent, a boy between nine and ten years of age, while passing along Brush street came in contact with one of the electric light wires which had become severed at a point about 10 or 15 feet from pole No. 1. No one saw the accident, but it is conceded that the contact caused his death. The short end of the broken electric light wire hung down from the transformer pole, and the long end had been carried by the wind or the recoil of the wire over the other electric light wire, which still remained intact, and had slid down this wire toward the street. When found, it extended across the worn path used as a walk to the electric light pole on Brush street near the house of a Mr. Flowers, being designated on the plat as ‘Pole No. 3.’ The body of the boy was found in the path about six feet from this pole. The wires of the village carried about 2,000 volts of electricity and were of copper with ordinary cotton insulation. The telephone wires were uninsulated and carried only a small quantity of electricity. The telephone pole on the east side of the alley at the time of the accident was leaning from the perpendicular to the west several feet, and no guy wires or support of any kind had been placed to maintain it perpendicular. According to the reports of the weather bureau, a strong wind had been blowing during the day, and at 4 o'clock in the afternoon, which is, at least approximately, the time of the accident, it was blowing not to exceed 35 miles an hour, and there was a space of about 14 inches between the two sets of wires. It also appeared that about a year before this accident, at the point where these wires crossed in the alley, the electric light wires and telephone

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wires came into contact and burned off two inside telephone wires.

An employé of the Citizens' Company testified that, when the wires came together the year before, the insulation on the electric light wires was ‘roughed up in two places,’ and that so far as he knew they were never taped again until the accident happened.

At the time of the trial the remaining electric light wire, which had not been removed at the time of the accident, was taken down and its insulation was discovered to be frayed at the places underneath the wires of the telephone company above it.

The declaration alleges that the immediate cause of the wires being down was as follows: ‘That afterwards, to wit, on the 21st day of April, 1909...