Syllabus
by the Court.
In
every case involving actionable negligence, there are of
necessity three constituent elements to its existence: First
the existence of a duty on the part of the person complained
against to protect the complainant from the injury of which
he complains; second, the failure of the defendant to perform
that duty; third, injury to the plaintiff resulting from such
failure of the defendant; and, when a petition affirmatively
shows these three elements, it is good as against a demurrer.
Where
the evidence is sufficient to reasonably tend to support the
allegations of a petition that states a cause of action, a
demurrer to such evidence should be overruled.
Where
from the facts shown by the evidence, although undisputed
reasonable men might draw different conclusions respecting
the question of negligence or contributory negligence, such
questions are properly for the jury. And it is only where the
facts are such that all reasonable men must draw the same
conclusion from them that the question of negligence is ever
considered as one of law for the court.
In a
civil action triable to the jury, where there is competent
evidence reasonably tending to support the verdict of the
jury, and no prejudicial errors of law are shown in the
instructions of the court, its ruling on law questions
presented during the trial, the verdict and finding of the
jury will not be disturbed on appeal.
Error
from District Court, Blaine County; W. M. Bowles, Judge.
Action
by J. J. Morrison, administrator of J. O. Warrington
deceased, against the Town of Watonga. Verdict for plaintiff
and judgment thereon, and defendant brings error. Affirmed.
JOHNSON
J.
This is
an appeal from the district court of Blaine county. On the
19th day of July, 1916, J. J. Morrison, administrator of the
estate of J. O. Warrington, deceased, commenced an action
against the defendant, town of Watonga, to recover the sum of
$50,000 damages for the wrongful death of the said J. O.
Warrington on account of the negligence of the defendant.
The
allegations of the plaintiff's petition that are here
essential were as follows:
"That on or about the 15th day of May, A. D. 1916, and
at a time when the said support and guy wires of the said
Watonga Telephone Company were and had been for a number of
years in the position and condition as hereinbefore
described, and at a time when the said defendant herein had
had full and complete knowledge thereof, the said defendant
in the exercise of its corporate functions, rights, and
privileges negligently and carelessly and improperly erected,
and thereafter and all times mentioned herein, maintained,
owned, and controlled, certain poles along and upon the east
side of Noble avenue of said incorporated town of Watonga at
the intersection of said Noble avenue and said Ninth street,
and upon said poles then and there negligently, carelessly,
and improperly erected and placed and at all times mentioned
herein continued to negligently, carelessly, and improperly
own, control, and maintain a certain primary wire for the
purpose of conveying and conducting electricity from the
dynamos and power plant of the defendant herein to the
several residents, citizens, and inhabitants of the said
incorporated town of Watonga and vicinity, and that said
primary wire, as aforesaid, was, upon the said 23d day of
July, A. D. 1914, carelessly and negligently and improperly
strung and maintained by the defendant herein from a pole at
the southeast corner of the intersection of said Noble avenue
with said Ninth street to a pole approximately 25 feet north
of the northeast corner of the intersection of said Noble
avenue with said Ninth street, and said primary wire being
then and there and for many months prior thereto negligently,
carelessly, and improperly strung and maintained above the
said telephone wire heretofore referred to as being
maintained, owned, and controlled by the said Watonga
Telephone Company, a corporation, and strung upon the poles
and across Noble avenue, as hereinbefore indicated.
That on the 23d day of July, A. D. 1914, and for a long time
prior thereto the defendant herein negligently and
carelessly, without due and proper regard for the welfare of
persons using the streets and highways of said incorporated
town of Watonga, allowed, suffered, and permitted the said
primary wire as aforesaid, then and there maintained by the
defendant upon the poles as aforesaid, and across Ninth
street, to become loose and in a sagging condition, and to
fall upon and rub against the telephone support or guy wire
to such an extent and for such a length of time as to cause
the insulation upon said primary wire to become entirely worn
and destroyed at a point and place where the same touched and
came in contact with the said telephone wire as aforesaid,
all of which said condition existed and was known by the
defendant herein to exist on and prior to the said 23d day of
July, 1914.
That on the said 23d day of July, 1914, at approximately
between the hours of 7:30 and 8:30 o'clock p. m., and at
a time when the said defendant herein then and there was
cognizant of and had full knowledge of the condition of all
of said wire as hereinbefore set forth, the said defendant
having failed, refused, and neglected to repair or replace
the insulation worn from the said primary wire as aforesaid
by its contact with the said telephone wire, and also having
failed, refused, and neglected to furnish, or cause to be
furnished, a strain insulator or other similar device for
either of said supporting guy wires of said Watonga Telephone
Company, did then and there, with full and complete knowledge
of the position, situation, and condition of said contact
between the said telephone wire as aforesaid and the said
primary wire, cause its dynamos and power plant to be
negligently and carelessly operated and a current of
electricity generated and transferred and conveyed over said
primary wire as aforesaid, and upon and into said telephone
wire as aforesaid, thereby charging the same with a high,
dangerous, and deadly charge of electricity,
causing the same to be conveyed from dynamos and power plant
of the defendant within said incorporated town of Watonga,
by, through, and over said primary wires as aforesaid, and
upon and within said telephone wires as aforesaid to the
ground and the surface of the earth at the point where said
supporting pole guy wire entered the ground, as hereinbefore
indicated, and by reason of which both of said telephone
wires as aforesaid, and the ground and immediate surface of
the earth where said telephone wires entered the ground,
became then and there charged with a high, dangerous, and
deadly charge of electricity.
That on said 23d day of July, 1914, between the hours of 8
and 9 o'clock p. m. and at a time when the said telephone
wires and the said ground connected therewith were so charged
with a high, deadly, and dangerous charge of electricity by
reason of the operation of the defendant's electric light
and power plant as aforesaid, the said J. O. Warrington,
while walking along and upon said Ninth street and upon a
path then and there and for many years prior thereto, used
and permitted to be used by the defendant herein for foot
passengers upon the north side of Ninth street, and while so
walking in an easterly direction as aforesaid, stepped upon
the ground and surface of the earth so charged with the said
electricity, and came in contact with said telephone
supporting pole guy wire as aforesaid, so charged with said
electricity, and from which contact with said surface of the
earth and said wire said J. O. Warrington did then and there
receive into his body a deadly current of electricity, and
from which he did then and there immediately die."
The
defendant answered, first, by a general denial; second, that
the deceased received the injuries and met his death as a
direct and proximate result of what is, in law, denominated
"an act of God"; third, that the deceased met his
death as a result of his own negligence and want of care on
his part which resulted in his death.
The
plaintiff's reply consisted of a general denial. The
trial resulted in a verdict in favor of the plaintiff for the
sum of $5,000 upon which verdict the trial court rendered a
judgment in said sum.
The
defendant regularly and in due time commenced this proceeding
in error to reverse the judgment of the trial court.
The
defendant makes 29 separate assignments of error in his
petition in error. Its first assignment of error is that:
"The court erred in overruling the defendant's
motion for a new trial."
The
second is:
"The court erred in overruling the defendant's
demurrer to the plaintiff's petition."
There
is no merit in the latter contention.
The
plaintiff's petition by sufficient and apt averments and
allegations charges the defendant with the negligent
erection, construction, operation, and maintenance of its
electric light poles, guy wires and primary wires, charging
that by reason of the fault and negligence of the defendant
in these respects the deceased came in contact with an
uninsulated guy wire, charged with a deadly current of
electricity, which directly caused his death, charging, in
effect, the three concurring elements: First, the existence
of a duty on the part of the defendant to protect the
deceased from the injury which caused his death; second, the
failure of the defendant to perform that...
