Wilhite v. City of Huntsville
| Decision Date | 25 November 1912 |
| Citation | 151 S.W. 232,167 Mo.App. 155 |
| Parties | M. S. WILHITE, Respondent, v. CITY OF HUNTSVILLE, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Randolph Circuit Court.--Hon. A. H. Waller, Judge.
AFFIRMED.
Judgment affirmed.
E. J Howard for appellant.
The defendant, not being responsible for the contact of the wires, the law is that there is no negligence on its part unless it had a reasonable time after the dangerous act was committed, or the dangerous situation created, in which to discover the danger, and obviate its probable consequences. Clonts v. Gas Light Co., 144 Mo.App. 582; Frauenthal v. Gas Light Co., 67 Mo.App. 1; Abbott v. Mining Co., 112 Mo.App. 550; Dodge v Coal & Coke Co., 115 Mo.App. 601; Hach v Railroad, 117 Mo.App. 11; Kelly v. Railroad, 105 Mo.App. 365. The plaintiff, having alleged specific acts of negligence, had the duty of proving the acts as alleged, or his cause of action fails. Hogan v. Railroad, 150 Mo. 36; Chitty v. Railroad, 148 Mo. 64; Curren v. Railroad, 86 Mo. 62; Bohn v. Railroad, 106 Mo. 429; Feed & Fuel Co. v. Railroad, 129 Mo.App. 498.
Aubrey R. Hammett for respondent.
--Plaintiff sued the city of Huntsville, a city of the third class, to recover damages for the loss of a horse which he alleges was killed by the negligence of defendant. The cause is before us on the appeal of defendant from a judgment recovered by plaintiff in the circuit court.
The horse was killed about 5:30 a. m. January 14, 1911, while being driven into a public street in Huntsville from a livery barn owned and operated by plaintiff in that city. A pole line carrying both telephone and electric light wires ran along the street in front of the barn and the entrance to the barn was about midway in the space between two of the poles. The telephone wires were a part of a telephone system operated by a private corporation and the electric light wires were owned and operated by defendant as a part of its municipal lighting system. The telephone wires were about seven feet above the electric light wires, and, being employed to carry only low and harmless currents of electricity, were uninsulated. The electric light wires carried a high and deadly current and were insulated.
Sometime before the night in question one of these wires had been spliced at a point almost opposite the west side of the entrance to the barn and there was no insulation on the wire in a space of four or five inches at the place of the splice. It is a fair conclusion from the fact and circumstances detailed in the evidence of plaintiff that the bare place had existed from the time of the splicing of the wire by defendant until the time of the injury. A heavy rain and sleet storm raged throughout the night of the injury and encrusted telephone and electric light wires with a thick, heavy coating of ice. One of the telephone wires in front of the barn broke under its burden of ice and one of its ends fell to the street in front of the barn. The wire crossed the electric light wire we have described and remained in contact with that wire at the place where there was no insulation with the result that the electric light current was short-circuited by the broken and hanging telephone wire and was grounded at a point nearly opposite the west side of the barn entrance. The breaking of the telephone wire occurred during the storm and the presence of the loose wire in the street was first observed by a pedestrian about three hours before the injury. It appears that the agents and servants of defendant made no effort during the night to discover and repair dangerous defects caused by the storm which was very severe and of a nature especially harmful to overhead wires; and, further the evidence discloses that defendant had not equipped its power house with appliances commonly installed and used in such plants for detecting short circuits and material losses of electricity. A servant of plaintiff who drove the horse out of the barn had been warned by another servant to look out for a sagging wire to the right of the entrance and, heeding the warning, turned the horse to the left on emerging from the door. The night was very dark and the driver could not see the fallen wire. The horse stepped on it with one of his forefeet and received a shock that threw him down. Defendant endeavored to show that the wire became wrapped around the horse's leg and that the struggles of the animal were sufficient to tear off the insulation of the electric light wire at the place of contact between the two wires but the witnesses for plaintiff say that the horse did not struggle and was killed almost instantly.
As we view the evidence the issue of whether the insulation was removed from the place of the splice in the...
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