Williams v. City of Canton

• Decision Date: 30 March 1925
• Docket Number: 24702
• Citation: 103 So. 811,138 Miss. 661
• Court: Mississippi Supreme Court
• Parties: WILLIAMS v. CITY OF CANTON. [*]

103 So. 811

138 Miss. 661

WILLIAMS v. CITY OF CANTON. ^[*]

No. 24702

Supreme Court of Mississippi

March 30, 1925

Division A

Suggestion of Error Overruled May 18, 1925.

APPEAL from circuit court of Madison county, HON. W. H. POTTER Judge.

Action by Sallie Williams against the city of Canton. From the judgment for defendant, plaintiff appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Powell, Harper & Jiggetts, for appellant.

I.

THE COURT ERRED IN REFUSING TO GRANT CERTAIN INSTRUCTIONS TO THE PLAINTIFF. Potera v. city of Brookhaven, 95 Miss. 774, holds that the mere fact that the wires had fallen into the street unexplained, was prima-facie evidence of negligence on the part of the appellee. Potera v. Brookhaven, is on all fours with the case at bar.

THE defendant in the case at bar did not show nor did it attempt to show that the falling of the wire or the injury to the boy was one of inevitable accident. The defendant did not explain, nor indeed did defendant attempt to explain how the wire happened to fall. Plaintiff introduced testimony showing that the Fire was in a defective condition, showing that it had been in a defective condition for some time, and showing that the insulation on said wire was so rotten in places that it hung down in shreds from the wire. The city did not rebut this, the plaintiff showed that the defect of the wire was so open and notorious that the defendant by the exercise of even the slightest care could, and should, have known that it was operating a wire in a defective condition.

It was the duty of the defendant to use the utmost skill and care in dealing with the deadly agency of electricity. The courts of Mississippi have uniformly held that a corporation handling this deadly and unseen power for profit is accountable for the highest degree of care. William Temple v. McComb City Electric Light & Power Company, 89 Miss. 1. The case at bar is one of res ipsa loquitur. Our court has declared in a similar case, the Potera case that the doctrine of res ipsa loquitur, applied, See also A. & V. Railway Co. v. Groome, 97 Miss. 201.

Appellant submits that this wire presumably would not have fallen if due care had been exercised. Wires are not in the habit of falling promiscuously and without cause. Yet the city did not attempt to give any valid reason why it did fall, though the appellee did attempt to show one way in which it did not fall. The presumption in the case at bar, as clearly shown, is that the defendant was negligent. The defendant failed in its obligation to rebut the presumption by evidence of due care. Therefore the doctrine of res ipsa loquitur applies and a peremptory instruction should have been granted the plaintiff.

II.

THE COURT IMPROPERLY GRANTED TO THE DEFENDANT THE FOLLOWING INSTRUCTION: "The presumption of the law in this case and until the contrary is proved is that the defendant is not liable."

We cannot place any other interpretation on this instruction than that it means that the defendant is not to be presumed to be prima facie negligent. To the contrary our court has held that where a wire had fallen, unexplained, the presumption is against corporations owning operating the said wire. If the above instruction does not carry our interpretation it is at least so ambiguous as to be harmfully misleading. We submit that the instruction should not have been granted and that the court erred in so doing.

III.

THE FOLLOWING INSTRUCTION WAS IMPROPERLY GRANTED: "The court instructs the jury that if they believe from the evidence that it is the usual practice of Electric Light Companies to use their wires after the insulation has worn off and that such practice and use are as reasonably safe as if the insulation had not worn off, then the city of Canton was not negligent in using its wires while uninsulated and in such case you cannot award any damages because of such uninsulation."

This instruction is contrary to the law of this state. Whether other Electric Light Companies operate their wires uninsulated is immaterial to the case at bar. Our court holds that insulation of wires is necessary to that degree of care to which those operating electric wires are held. Laurel Light & Railway Company v. Jones, 102 So. 1.

IV.

THE VERDICT IS CONTRARY TO THE LAW AND THE EVIDENCE. The city of Canton was burdened with the duty of using the greatest degree of skill. The presumption of the law is that the effect of a fallen charged wire unexplained, is prima-facie negligence. The evidence produced in this case showed that the wire did fall and that the prima-facie evidence of negligence was neither rebutted nor attempted to be rebutted.

In the case at bar the evidence shows that the defendant below had not exercised the care which the law requires nor had they measured up to the grave responsibility which is imposed upon those who would derive profit from the sale of so deadly an agency as electricity. The evidence showed that a child of tender age, incapable of exercising discretion, young, irresponsible and unthinking, picked up from the street a deadly wire owned and operated by the city of Canton.

THE decisions of our highest court say that negligence in such a case as the one at bar is prima facie. The city neither met its duty of rebutting, nor did it attempt to do so. The evidence showed a child of tender years and indiscretion a Victim of the city's negligence. The verdict then is neither supported by the law nor by the evidence.

H. B. Greaves, for appellee.

THE appellants in their assignment of errors, A, B, and C complain that the court refused to give them the instructions there asked. Instructions A and B announce to the jury that the fact of the child's death from contact with the wire on the ground was prima-facie evidence of the negligence of the city, and casts the onus of exculpating itself from blame on the city. Instruction C was a peremptory instruction to find for the plaintiff. These instructions were evidently based on the opinion of the court delivered in Potera v. City of Brookhaven, 95 Miss. 774; Temple v. McComb City Electric Light & Power Co., 89 Miss. 1; A. & M. V. Railroad Co. v. Groome, 97 Miss. 201, on the theory that this case at bar calls for the imposition of the doctrine of res ipsa loquitur.

After considering the facts of this case, the only issue presented to the court and jury at the trial of this case was whether or not the servants in felling the trees broke the wire and went off and left it down, and unguarded, whereby the child was killed. This was the only contention of the plaintiff and all the evidence was directed to such issue. While the contention of the city was,--it was due to an accident in no way traceable to its negligence....