Thompson v. City of Slater

• Decision Date: 03 April 1917
• Docket Number: No. 14492.,14492.
• Citation: 197 Mo. App. 247,193 S.W. 971
• Parties: THOMPSON v. CITY OF SLATER.
• Court: Missouri Court of Appeals

193 S.W. 971

197 Mo. App. 247

THOMPSON v. CITY OF SLATER.

No. 14492.

St. Louis Court of Appeals. Missouri.

April 3, 1917.

Rehearing Denied April 18, 1917.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by Carl R. Thompson, by his guardian, George F. Thompson, against the City of Slater. Judgment for plaintiff, and defendant appeals. Affirmed.

S. B. Burks, of Slater, and David H. Robertson, of Mexico, Mo., for appellant. A. M. Ott, of Independence, Alf. F. Rector, of Marshall, and W. S. Flournoy, of Kansas City, for respondent.

ALLEN, J.

Plaintiff, a minor, sues by his guardian (his father) for personal injuries sustained by reason of coming in contact with an uninsulated electric light wire of the defendant city. The suit was instituted in the circuit court of Saline county, but on change of venue it went to the circuit court of Audrain county, where a trial, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $3,500, and the defendant appealed.

The amended petition upon which the cause was tried, after making certain formal allegations, avers that on June 17, 1911, and for a long time prior thereto, defendant, a city of the fourth class, owned and operated an electric lighting plant, by which it lighted its streets and furnished electricity to consumers, distributing the electric current over wires strung by it along its streets on poles and trees; that on one of its streets (Walnut street) defendant had strung two such wires, carrying an electric current of a high and dangerous voltage, and that at a certain designated point on this street "said two wires were by defendant negligently strung through the lower branches of a small tree; one of said wires being negligently attached to said tree about 16 feet from the ground and the other wire being negligently swung loose through said branches about the same distance from the ground; both of said wires being thus negligently placed by defendant where they might injure persons, particularly children, who might get into said tree not knowing the danger from said wires." It is averred that when these two wires were strung along the street mentioned, they were covered with some kind of insulation, "sufficient to protect them from the weather, but not sufficient to protect any one coming in contact with said wires from receiving a shock from the electricity carried by said wires, and on said 17th day of June, 1911, the insulation was worn off of both of said wires where they passed through said branches of said tree and had been off of them for a long time prior thereto; * * * that said wires, as originally placed in said tree and particularly with the said insulation off of them, were highly dangerous to persons who might come in contact with them or said tree, and the defendant either knew of said dangerous conditions of said wires, or by the exercise of ordinary care could have known of such condition, a sufficient length of time prior to said date to have had a reasonable time, by the exercise of ordinary care, to have remedied or repaired the same prior to said date."

The petition further avers that on June 17, 1911, plaintiff, then a child under eight years of age, residing with his parents in defendant city, was attracted to the tree mentioned, "by the knowledge of a bird's nest being in said tree, and, not knowing the danger from said wires, climbed into said tree for the purpose of examining said bird's nest, and when in said tree his person came in contact with said electric light wires, which, at that time, were carrying more than 2,000 volts of electricity, and the said current of electricity was thereby discharged into plaintiff's body," whereby he was seriously and permanently injured, etc.

A demurrer interposed by defendant to this petition having been overruled, defendant answered, admitting, among other things, that defendant owned and operated the electric lighting plant and wires referred to in the petition; that two of its wires, carrying a very high voltage, were strung along that portion of the street in defendant's city mentioned in the petition; that these wires "were covered with some kind of insulation sufficient to protect them from the weather, but not sufficient to protect any one coming in contact with said wires from receiving a shock of electricity carried by said wires"; and that the wires were carrying more than 2,000 volts of electricity. The answer then denies generally the other allegations of the petition, avers that the wires mentioned in the petition "were not susceptible to insulation which would prevent any one coming in contact with them from being shocked, and that no such insulation wire could be had," and pleads that plaintiff was injured "by reason of his own negligence and unlawful acts, directly contributing to produce his injury, in this, to wit, that plaintiff climbed a certain tree for the purpose of catching a wild bird or game bird, or taking or needlessly destroying the nest or the eggs of a wild bird or game bird, and while unlawfully in said tree, upon no lawful business or pleasure, he negligently came in contact with the aforesaid electric light wires."

The reply denies the new matter of the answer.

The evidence discloses that the tree mentioned in the petition was a small tree, or of medium size, the trunk being about 10 or 12 inches in diameter. The upper branches thereof had previously been trimmed, and it was referred to as a "bushy" tree. The height of its lower branches appears only by inference from the testimony that plaintiff's father was able, by "jumping up" or making "a little hop," to grasp one of the lower limbs and thus climb into the tree. One witness said that it was an elm or a maple, another thought that it was an elm. It stood about six inches from the sidewalk on Walnut street, about 150 feet from the house in which plaintiff lived with his father and mother on an intersecting street. On June 17, 1911, plaintiff, being then about eight years of age, was passing this tree, with his younger brother, when, according to his testimony, a boy told him of having seen some pigeon eggs under the tree. It seems that he thereupon looked among the branches of the tree and discovered a bird's nest, and then climbed the tree, his brother giving him a "boost." He testified that the tree was easy to climb, and that he got above the electric light wire, which afterwards injured him, and saw some young birds in the nest. He said:

"I sat looking at them, didn't have any intention of taking them. * * * Then the limb busted and let me straddle of it."

Upon being asked whether he saw the wires, or knew that they were there, before climbing the tree he said:

"Some telephone men had been working, and I saw the wire and thought they were telephone wires, and I had been working there; they didn't give me a shock, so thought they were telephone wires. So the limb busted and let me straddle of the wire."

He further testified that the calf of his left leg first came in contact with one of the wires, which burned him severely, and that he was unable to free himself therefrom; that he grasped a limb of the tree and tried to pull himself from the wires, but was unable to do so, though he later fell from the tree while his father was attempting to rescue him.

It appears that plaintiff's screams attracted the attention of his father, a railway conductor, then at home, who ran to the tree, and, by jumping, grasped the lower branches thereof, and thus climbed to a point near plaintiff and undertook to release the latter from the wire, but, upon grasping his son's foot, the father received a severe shock, and was unable to accomplish his purpose. He thereupon descended, and was undertaking to rescue his son by the use of a board or plank, when the boy fell from the tree.

The evidence shows that the muscles of plaintiff's left leg, between the knee and ankle, were very badly burned, as was also his right foot, the small toe of this foot having been burned entirely off; and that his left hand was also burned. It is clear that plaintiff's injuries were of a very serious and painful nature, and to some extent, at least, permanent. For obvious reasons it is not suggested that the verdict is excessive, and hence we need not dwell further upon the testimony relating to the extent of the injuries.

The evidence shows that the wire with which plaintiff came in contact extended through the tree at a distance of about 16 feet from the ground; that it originally had a covering, but that this had been worn off "until there was only a piece now and then on the wire." It is said that the wire was entirely bare at and about the point where plaintiff came in contact with it. One witness testified that he saw the tree "on fire once in a while" from these wires; that this happened "every time it rained." The wires carried an electric current of 2,300 volts.

Defendant's counsel admitted at the trial that the wires "were dangerous when they were put there, and never had insulation enough on them to protect anybody from shock if they touched them." Defendant adduced testimony of experts tending to show that the covering upon the wires was a mere weather proofing, or "weather...