Thomas v. City of Somerset

• Decision Date: 22 November 1906
• Citation: 97 S.W. 420
• Parties: THOMAS v. CITY OF SOMERSET.
• Court: Kentucky Court of Appeals

97 S.W. 420

THOMAS v. CITY OF SOMERSET.

Court of Appeals of Kentucky.

November 22, 1906

Appeal from Circuit Court, Pulaski County.

"Not to be officially reported."

Action by John Thomas, by next friend, against the city of Somerset. Judgment for defendant. Plaintiff appeals. Reversed, and new trial directed.

E. P Morrow and W. Boyd Morrow, for appellant.

O. H Waddle & Son, for appellee.

CARROLL C.

The city of Somerset owns an electric light plant, and rented or leased to Elmer Burton for compensation an electric globe with a brass socket, which was installed by it in a booth kept by him in the sale of confections. The globe was inside the booth, and so high that appellant, a boy 17 years of age who was employed by Burton, could only reach it by elevating his hands over his head. He testified, in substance, that, on the evening the injury occurred, it was rather cold and damp had been raining, and there being no fire in the booth, he put his hand up to the globe for the purpose of warming it when one of his fingers came in contact with the brass socket, injuring him quite severely. Children and other persons were in the habit of visiting the place for the purchase of candies and nuts, and the globe was so situated that it might have been reached by a man of ordinary size standing on the sidewalk of the city. An electrical engineer, introduced as a witness for appellant, said that the lamp and socket was not properly insulated or protected, and that the dampness of the atmosphere added to the danger incident to coming in contact with it; that if it had been properly insulated, there would be no danger in handling or touching it; but that if exposed to dampness as this light was, the socket would become charged with electricity, and dangerous to handle or touch. Upon the conclusion of the testimony for plaintiff, appellant here, the court peremptorily instructed the jury to find for appellee, defendant below. It is argued for appellee that the condition of the lamp was unknown to the city, that it had received no request to repair it, nor had any notice that the dampness rendered it dangerous; and, further, that appellant was not required by his duty or business to handle or touch the lamp or socket, and in so doing was a trespasser, and the city owed him no duty, and therefore he could not recover. It was held by this court in McLaughlin v. Electric Light Co., 38 S.W. 851, 18 Ky. Law Rep....