Temple v. McComb City Electric Light And Power Co.
| Decision Date | 18 February 1907 |
| Citation | 42 So. 874,89 Miss. 1 |
| Court | Mississippi Supreme Court |
| Parties | WILLIAM TEMPLE v. MCCOMB CITY ELECTRIC LIGHT AND POWER COMPANY |
November 1906
FROM the circuit court of Pike county, HON. MOYSE H. WILKINSON Judge.
Temple the appellant, an infant suing by his next friend, was plaintiff in the court below; the electric light and power company, the appellee, was defendant there. From a judgment sustaining a demurrer to the declaration and dismissing the suit the plaintiff appealed to the supreme court.
The plaintiff, a child ten years of age, sued for damages for injuries alleged to have been received by coming in contact with a live wire of defendant. The declaration alleged that the defendant, in transmitting electricity, which it knew to be a dangerous agency, through a thickly settled part of McComb City, negligently removed the insulation from its wires at a place where they passed through the limbs of a tree which had numerous branches extending almost to the ground, and in which plaintiff and other children played, and that by reason of the removal of the insulation from the wires they thereby became dangerous, while, if properly insulated, they would have been harmless, and that plaintiff being ignorant of their dangerous condition, while climbing among the branches of the tree, came in contact with an uninsulated wire and received the injuries of which complaint is made. The defendant demurred to the declaration because it failed to aver (1) that defendant had reason to believe that the wires were constructed in such place and manner as to result in injury to plaintiff or any one else; (2) that it was through the fault of defendant that plaintiff was injured, but, on the other hand, the declaration shows that it was through the fault of plaintiff that the accident occurred.
Judgment reversed and cause remanded.
Quin & Williams, and Fred H. Lotterhos, for appellant.
The declaration charges that electricity is a dangerous agency and the defendant knew it, and that the wires were dangerous if not insulated; that current would pass from uninsulated parts to substances coming in contact. That the insulation was removed by defendant from parts of the wires extending through the limbs of the tree; that this manner of construction was a menace to human life, and that this was a small tree with branches nearly to the ground in a thickly populated part of the city.
These would be sufficient facts for the defendant to have reason to believe that injury would result, at least, to one of tender years ignorant of the danger of electric wires from which the insulation had been removed, who might be in the little tree. The reason to believe was charged. It would not have strengthened the case, after charging these facts from which defendant had reason to believe to allege in general terms that it did have reason to believe.
But, it may be said that the declaration does not charge that defendant believed or had reason to believe that one of tender years and ignorant of the dangers in uninsulated electric wires would climb into the tree.
The declaration is that the tree stood in a thickly populated part of the city; that it had branches nearly to the ground. We think the courts would take judicial notice that children would climb such a tree. Spengler v. Williams, 67 Miss. 1.
Certainly, it would not be a fact that would have to be proved to a jury to warrant a verdict in a case otherwise proper for a verdict. The defendant, in using a dangerous agency in that tree would have to take notice, at its peril, that a child of tender years might get among the branches of the tree.
There is no question of the child's right to be in the tree. If it was in the street and if defendant has the right to use electricity in the streets, it was at its peril that it used this dangerous agency in the streets as an additional servitude. If it left its wires in a dangerous condition at a place where children playing in the streets, a child of tender years, might ordinarily be injured by those wires, it would have to respond in damages if such a child were injured thereby. McLain's Case, 67 Miss. 4; Girandi v. Electric Co., 107 Cal. 120; Winkleman v. Electric Co., 85 S.W. 99; Central Tel. Co. v. Sakala, 73 N.E. 143.
It is not the dangers at the surface of the street alone that are condemned, but the rights of the public extend indefinitely upward. Wheeler v. City of Fort Dodge, 108 N.W. 1057.
Mixon & Butler, for appellee.
The declaration in this case is fatally defective, in that it fails to charge that appellee knew, or had reasonable cause to know, that children were accustomed to play in the tree, or that they would likely do so. We admit that the true rule is that electric light companies are held to a very high, if not the highest, degree of care in properly maintaining their electric appliances, but they are only bound to anticipate such accidents and injuries as they can reasonably forecast as likely to happen. Snyder v. Wheeling Electric Co., 64 Am. St. Rep., 922.
In the case of Brush Electric Light & Power Company v. Lefevre, 93 Tex., 604, it was decided that where electric wires were placed over an awning not used as a place of resort, or for any purpose whatever by persons going on top of it, but simply for shade protection, there was no liability on the part of the electric light company to one injured thereby, the court saying that the injury must be the natural and probable consequence of the act complained of, which act ought to have been foreseen by the electric company. The court further says it was not negligence, with regard to persons traveling along the street or sidewalk to leave the wire exposed, because there was no reasonable and scarcely a possible chance for such persons to be injured thereby.
In the case of Brown v. Edison Electrical, etc., Co., 90 Md., 400 (S.C., 78 Am. St. Rep., 442), the court says with reference to the legal duty of electrical companies, that this legal duty would require it to see that its wires, when strung where persons were liable to come in contact with them, were properly placed with reference to the safety of such persons and were properly insulated.
The case of Perham v. Portland Electrical Co., 33 Ore 451 (S.C., 72 Am. St. Rep., 730), is a case which we consider directly in point. The...
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