Summary
In Mississippi Power v. Thomas, 140 So. at 228, this Court stated, "We do not hesitate to say, as a matter of law, this [one week] was a period of time sufficient to charge the company with constructive knowledge.
Summary of this case from McFarland v. Entergy Mississippi, Inc.Opinion
No. 29870.
March 14, 1932.
1. ELECTRICITY.
It is continuing duty of electric company to maintain wires over streets in manner not dangerous to persons and property (Code 1930, section 1506).
2. ELECTRICITY.
Electric company maintaining wires over streets and highways must exercise highest degree of care to prevent danger (Code 1930, section 1506).
3. ELECTRICITY.
Electric companies must make inspections of their wires and equipment to prevent danger.
4. ELECTRICITY.
Period of one week during which electric wire was in dangerously low position over street held sufficient to charge electric company with constructive knowledge.
5. ELECTRICITY.
That electric wire was in low position in street was prima facie evidence of negligence; thereby shifting burden of proof to electric company in action for injuries.
6. ELECTRICITY.
Where passage of camphouses lowered electric wire in street, and one riding on loaded truck came in contact with wire, and was injured, about a week thereafter, electric company held liable for injuries.
7. APPEAL AND ERROR.
Where plaintiffs admitted contributory negligence, but defendant requested no instruction respecting it, supreme court could not reduce judgment because thereof.
APPEAL from circuit court of Kemper county. HON. J.I. STURDIVANT, Judge.
Baskin, Wilbourn Miller, of Meridian, for appellant.
The measure of the duty of appellant was to exercise reasonable care to keep its lines at a height which would not interfere with the customary use of the highway for travel and this was met when it placed its wires high enough above the surface of the highway for the ordinary and usual traffic upon such highway not for all traffic.
Mayhew v. Yakima Power Co., 72 Wn. 431, 130 P. 485.
The evidence is so indefinite and uncertain as to just when and for how long the condition had been unsafe, the appellee failed to make out his case, as required under the law.
Yazoo Mississippi Valley R.R. Co. v. Hawkins, 132 So. 742.
In the absence of actual notice that the wires had been lowered by contact with the smoke stacks of the camp cars, it was necessary, before appellee could hold appellant liable and negligent, to establish that the condition had existed for a sufficient length of time for appellant to have found it out, in the exercise of reasonable and proper diligence.
Yazoo Mississippi Valley Railroad Co. v. Hawkins, 132 So. 742; Meridian Terminal v. Stewart, 143 Miss. 531, 108 So. 496; Rosenbaum, etc., v. Talbert, 142 Miss. 79, 107 So. 422; Fitch v. Cent. N.Y. Tel. Tel. Co., 59 N.Y.S. 140.
The case should have gone to the jury.
Williams v. Canton, 138 Miss. 661, 103 So. 811; Golsin v. Carrington Mfg. Co., 87 So. 439.
The exercise of the highest degree of care would not require appellants to search the remotest points of their lines and wires every day to discover their condition.
Ritchie v. Jerseyville, 176 Ill. App. 495.
This was not the kind of condition whereby any device installed by the appellant could have or would have given it notice, and it certainly seems unreasonable to hold that appellant was, as a matter of law, charged with knowledge of this condition when every one who claims first to have observed anything indicating it, though they had suffered no evil consequences therefrom, never thought enough of the situation to register any complaint whatever, or to give any notice whatever either to the supervisor of the streets of the town of De Kalb or to appellant.
Denver Consolidated Electric Co. v. Lawrence, 51 Colo. 31, 73 P. 39; Mitchell v. Charleston Power Light Co., 45 S.C. 146, 31 L.R.A. 577; Gross-Heim et al. v. Pittsburgh, 255 Pa. 382, 100 A. 126; Scarpelli et al. v. Washington Water Power, 63 Wn. 18, 114 P. 870; Murphy v. Great Northern, etc., 68 Minn. 526, 71 N.W. 662.
The amount of damages awarded is erroneous and excessive. The proof did not warrant the jury in concluding that there was any impairment in the earning capacity of appellee as the proximate result of the accident.
L.P. Spinks and John A. Clark, both of De Kalb, for appellee.
This is a case where the doctrine of res ipsa loquitur applies.
Williams v. City of Canton, 103 So. 811; Potera v. City of Brookhaven, 49 So. 617; Laurel Light Ry. Co. v. Jones, 102 So. 1; Mitchell v. Light Power Co., 31 L.R.A. 577.
When the appellee showed that he came in contact with the line of the appellant and sustained injury therefrom, such fact alone established a prima-facie case of negligence against the appellant, and to excuse itself from this negligence, the burden was on the appellant to show by evidence that it had exercised the highest degree of care in the construction and maintenance of its wires.
Williams v. Canton, 103 So. 811; Potera v. City of Brookhaven, 49 So. 617; Temple v. McComb City, etc., 42 So. 874; Telephone Company v. Cosnahan, 62 So. 824; Ledel v. Light Company, 132 So. 272.
The general rule is that the supreme court will not disturb the verdict of the jury as to the amount of the damages and this is especially true where the verdict has been approved by the trial court in overruling a motion for a new trial on the ground that the damages are inadequate or excessive, unless the amount is so shocking as to evince bias or prejudice, passion or corruption, on the part of the jury.
Lewis v. Black, 27 Miss. 425; Gulf Refining Company v. Miller, 153 Miss. 741, 121 So. 482; Harris v. Simms, 155 Miss. 207, 124 So. 325; Caver v. Eggerton, 157 Miss. 88, 127 So. 727; Bufkin v. Grisham, 157 Miss. 746, 128 So. 563.
Under a franchise granted by the town of De Kalb, appellant owns and operates an electric lighting system in said town. One of the service wires of appellant company extended across a street, which street was a part of a public highway known as the De Kalb and Summerville public road. This wire had originally been placed at a height above the street of fifteen feet. But, about two weeks before the injury hereinafter mentioned, some wagons loaded with camphouses had passed along this street, and the stove flues of these camphouses were of such height that they came in contact with said service wire and pulled it out of place, so that it sagged at a lower position above the street. This service wire entered the residence of a customer of appellant company. The wife of said customer, after the displacement of the wire by the camphouses, undertook to raise the wire by means of a stick at her garden fence, and did raise it, as she thought, sufficiently high to allow vehicles to pass safely under it on the street.
On March 10, 1931, appellee was assisting in hauling a load of lumber, and was traveling along this street. He was riding on top of the lumber, and, as the truck so loaded and upon which he was riding passed under this wire, appellee's head came in contact with said wire, and appellee was injured, for which injury he sued and recovered judgment.
The condition upon which a public utility company may string its wires over and across streets and highways is that these wires must be so placed as not to be dangerous to persons and property. Section 1506, Code 1930. And there is no question but that it is the continuing duty of the company to maintain its wires over the streets and highways in such manner as not to be or become dangerous to persons and property. And, while this duty is not absolute in the sense that the company is an insurer against all injuries and in all events, it is true that the rule, because it concerns the dangerous agency of electricity, is not satisfied so as to relieve of liability unless and until it is shown that the company has exercised the highest degree of care to prevent the danger. Potera v. Brookhaven, 95 Miss. 774, 782, 49 So. 617. See, also Williams v. Canton, 138 Miss. 661, 103 So. 811; Cumberland Telephone Telegraph Co. v. Cosnahan, 105 Miss. 615, 62 So. 824; Temple v. Light Power Co., 89 Miss. 1, 42 So. 874, 11 L.R.A. (N.S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. 924.
And manifestly the duty required of the company in respect to the maintenance of its electric wires is an active duty — not merely a passive obligation to act only when some third person has gone to the trouble to volunteer information to the company of a particular danger at a particular place. Thus it follows that there is a duty on these electric companies to make inspections of their wires and equipment. We do not hold that this obligation requires a constant inspection, nor do we attempt to say how often such an inspection shall be made. This is a question that is to be solved by application of the above-stated rule of care to all the facts and circumstances of the case, and ordinarily it will be a matter for the jury. 1 Joyce Electric Law, section 438 b; 20 C.J. 359.
But in the case at bar the evidence discloses without serious dispute that the offending wire had been in a dangerously low position for a period of at least one week, and this over a frequently traveled public highway within the corporate limits of the town. Much of the evidence is to the effect that the dangerous condition had existed for ten days or two weeks. Taking, however, the shorter period of time first mentioned, that is to say, one week, we do not hesitate to say that, as a matter of law, this was a period of time sufficient to charge the company with constructive knowledge. To hold otherwise would be either to deny the duty of inspection, or else to say that the periods thereof could be so far apart as to be of little practical value.
It is argued by appellant company, however, that, although it is true that the testimony shows that the camphouses had displaced the wire and had caused it to be lower than was its original position, and although it may be true that this displacement may have been for as long as one week, yet it is not shown exactly what the height was after the interference by the camphouses, and it is not shown that the wire was low enough to come into contact with travelers on the highway until the actual happening of the injury in this case. In other words, the argument of appellant is that appellee has not made proof in respect to the particular issue just mentioned and that the burden thereof was on appellee. In Potera v. Brookhaven, supra, it was held that the fact that a live wire was down in the street, so as to injure a person coming in contact therewith, was prima-facie evidence of negligence on the part of the company, thereby shifting the burden of proof to the company. See, also, Williams v. Canton, supra; 2 Joyce Electric Law, section 1048. Under the operation of this rule, and in the absence of testimony on the point last mentioned, it must be assumed, under the facts that are before us, that the wire remained in the condition left as a result of the passage of the camphouses, and that the position of the wire was low enough during the entire intervening period to catch a person riding on top of a load of lumber. The burden of proof had been shifted to appellant in this particular, and was no longer on appellee. Therefore the court was not in error in granting a peremptory instruction in behalf of appellee on the issue of liability.
The verdict appears to us to be extravagantly large. Nevertheless, there is evidence in support of the amount allowed and of sufficient strength to foreclose the conclusion that the amount is manifestly or undoubtedly unreasonable. Appellee in his own testimony as a witness admitted contributory negligence. If appellant had requested an instruction calling attention to that feature, and directing the jury to diminish the damage in proportion to the contributory negligence, we would have been enabled to reduce the judgment. But appellant did not take that essential step, Alabama V.R. Co. v. McGee, 117 Miss. 370, 384, 78 So. 296, and consequently we are not authorized to interfere.
Affirmed.