Pine Bluff Company v. Bobbitt , 168 Ark. 1019 ( 1925 )

L. W. Bobbitt, father of Lawson W. Bobbitt, brought suit on his own account and as guardian of his child to recover damages for permanent injuries received by his child from coming in contact with a guy wire of appellant company which was carrying a heavy voltage of electricity, through the negligent operation of the plant. The alleged negligence consisted in the failure of appellant's servants to discover and remove a wire, one end of which was securely wrapped around one of its guy wires near the ground and the other hanging across an uninsulated section of its high-tension wire, carrying 2,300 volts of electricity, thereby permitting a heavy current of electricity to pass from said high-tension wire through the lower part of the guy wire where the child, while playing and gathering flowers along the side of the road, came in contact with it.

Appellant filed an answer denying that the wire connecting this high-tension wire with its guy wire was a part of its system, and that its servants negligently failed to discover and remove same.

The cause was submitted to a jury upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and consequent judgment in favor of each appellee, from which is this appeal.

There is no dispute in the evidence that the injury was caused by current of electricity passing through one of appellant's guy wires, with which the child came in contact while playing near the roadside. The purpose of the guy wire was to hold the post in place where the line changed its course, and not for the purpose of conveying a current of electricity. It is also undisputed that the wire connecting the high-tension wire with the guy wire was foreign to and no part of the system. One end of it was securely attached to the guy wire and the other end, which was tied to a rock, was hanging over an uninsulated section of the high-tension wire attached to the top arm of the post.

The testimony is in conflict as to how long this condition in the wire had existed, and as to whether appellant was negligent in not discovering and removing the foreign wire before the injury. The conflict in the evidence in these particulars presents the only real issues in the case, and the cause should have been sent to the jury upon these issues only. We think instruction No. 14, presented by appellant and refused by the trial court, was a correct, accurate declaration of the law applicable to the disputed issues of fact in the case, and should have been given, for the rule therein announced was not clearly covered in the instructions given by the court to guide the jury. Said instruction is as follows:

"If you find from the evidence that the wire causing the injury was placed by some unknown third party over the defendant's electric wire and connected with the guy wire so as to charge said guy wire, thereby injuring the plaintiff, Lawson Bobbitt, and if you further believe that the defendant company did not know of such connection or danger, and could not have known of same by the exercise of ordinary care, then the defendant would not be liable, and you should so find."

Instruction No. 14 is criticised by appellee because it required the exercise by appellant of only ordinary care to discover the dangerous condition caused by the connecting wire. This requirement was correct, and conformed to the rule announced by Joyce on Electrical Law, quoted approvingly by this court in the case of Texarkana Company v. Pemberton, 86 Ark. 329, as follows:

"Electrical companies, in the maintenance of their wires, owe to their employees, as well as to others who may of right, either for pleasure or work, be in the vicinity of such wires, the duty of exercising reasonable care, that is, such care as a reasonably prudent man would exercise under the same circumstances. We have already stated that reasonable care or ordinary care is a degree of care varying with the circumstances of each case, and which, in the case of electrical wires carrying a dangerous current of electricity, requires the exercise of a high degree of care to keep them properly insulated and so suspended as not to endanger lives."

The rule not only applies to wires owned and used by an electric company "but extends to the prevention of the escape of the dangerous force in their service through any wires brought in contact with their own, and its transmission thereby to any one using the streets. Electric Street Ry. Co. v. Coney, 64 Ark. 381; Southwestern Tel. Tel. Co. v. Myane, 86 Ark. 588.

Appellant contends that the instructions given by the trial court as a guide to the jury were erroneous because they placed the burden upon appellant to justify or excuse itself from transmitting the current of electricity through its guy wire which burned the child. Under the circumstances of the injury a prima facie case of negligence on the part of appellant was made, which entitled appellee to go to the jury, and placed the burden on appellant to justify or excuse its negligence. The undisputed evidence revealed that the child received the injury from coming in contact with appellant's guy wires, while playing near the roadside, which should not have been carrying electricity in the proper operation of the plant. This guy wire was under the control and management of appellant. Southwestern Tel. Tel. Co. v. Bruce,89 Ark. 581; Commonwealth Public Service Co. v. Lindsay,139 Ark. 283; Arkansas Light Power Co. v. Jackson, 166 Ark. 633. It was appellant's current of electricity which burned the child, and it could not excuse itself by simply showing that the current was connected to the guy wire from its tension wire through a foreign wire attached to the two by some third party. It was required to do more than that to exculpate itself from the prima facie case of negligence made by proof of the injury and the manner thereof. It must be shown, in addition, that it used ordinary care to discover and remove the foreign wire. 9 R.C.L., pp. 1215, 1217 and 1218. In the case of City Electric Street Ry. Co. v. Conery, 61 Ark. 381, this court, in comparing that case with the case of Texarkana Gas Electric Light Co. v. Orr, 59 Ark. 215, said: "The main difference between the case last cited and this is, the electricity was communicated to the party injured in the former by the electric company's own wire, and in the latter by the wire of another, but the principle upon which the liability is based is the same in both cases. All persons have the right to use the streets, in or over which the wires were suspended, as public highways. Subjecting the dangerous element of electricity to their control, and using it for their own purposes, by means of wires suspended over the streets, it is their duty to maintain it in such a manner as to protect such persons against injury by it to the extent they can do so by the exercise of reasonable care and diligence. This duty is not limited to keeping their own wires out of the streets or other public highways, but extends to the prevention of the escape of the dangerous force in their service through any wires brought in contact with their own, and of its transmission thereby to any one using the streets. Only in this way can the public receive that protection due it while exercising its rights in the highways in or over which electric wires are suspended."

While the burden in the whole case rested upon appellee after a prima facie case was made, the instructions given by the court correctly placed the burden upon appellant to justify or excuse its negligence. The instructions given by the court, in so far as they covered the issues involved, were substantially correct and impervious to attack by general objections.

Appellant next contends that the court erred in excluding testimony relative to experiments which might indicate how the end of the wire with the rock attached might have been thrown over the tension wire, and opinion evidence as to what motive might have inspired the third party to commit the act. We regard this testimony as wholly immaterial, after it was shown by the undisputed testimony that such wire was not a part of the construction of the plant, and could serve no useful purpose, or, in other words, that it was a foreign wire. It is immaterial how it was placed there or what motive inspired it to be done, if appellant's linemen did not do it. We do not see how the exclusion of these pieces of evidence could have prejudiced appellant's cause.

Appellant's next and last contention for a reversal of the judgment was the admission of the testimony of Max Fry to the effect that Clint Green, who was working for appellant, attempted to induce him to admit that he had attached the foreign wire to the two wires in question upon a promise that appellant would pay his fine. Such an agreement on the part of Clint Green was not within the scope of his apparent authority, and it was not shown that he had actual authority to make such an agreement, hence inadmissible to bind appellant company. The court erred in admitting it.

On account of the errors indicated the judgments are reversed, and the causes are remanded for a new trial.