Williams v. City of Canton

*666 Cook, J., delivered the opinion of the court. This suit1 was instituted against the appellee, ’ the city of Canton, seeking to recover damages for the death of a negro boy about ten or eleven years of age, who was killed by coming in contact with a wire owned, and operated by the said city and which was highly charged with electricity. The declaration charged no specific act of negligence, but alleged generally that the city carelessly and negligently allowed this wire to fall and remain in the street. There was a verdict in favor of the city, and, from the judgment entered in pursuance of this verdict, this appeal was prosecuted. The material facts disclosed by the record are substantially as follows: The city of Canton owned and operated an electric light plant, by means of which its streets were lighted and electrical current was furnished to the citizens of the municipality. On the 22d day of June, 1923, a certain primary wire which was strung from pole to pole along a street of the city, and which was carrying a current of high voltage, fell to the ground and lay in the street. A short while after the wire had *667 fallen a small negro child about ten or eleven years of age, while proceeding along this street, came in contact with this highly charged wire and was instantly killed. The plaintiff introduced a number of witnesses whose testimony tended to show that the wire was broken by the servants of the city, who were engaged in felling a tree along; the side of the street; that, when this, tree fell to the ground, the limbs thereof caught this wire and broke it; and that these city employees left the wire on the ground unguarded and without giving any notice to the public that the wire was down and dangerous. This testimony was contradicted by several witnesses for the city, who testified that, when this tree fell, the limbs thereof did not touch this wire, that it was not broken by the falling of this tree; and that the wire had not fallen at the time these employees left the place where the accident occurred shortly thereafter, but it was admitted by the city that this highly charged wire did fall in the street, and no explanation of that fact, or reason therefor, was given or attempted. In an effort to show that it was free of negligence, the city offered a great mass of testimony tending to show that its plant, poles, wires, and equipment were of standard construction and in good repair, the skill and competency of its agents, servants, and emplojmes, the kind and size of poles and wires used, the length of time these wires had been in use, the frequency and nature of inspections made by its agents, etc. It has been repeatedly held by this court that corporations, private or municipal, engaged in the use of electricity for business purposes and in transmitting it along highways and streets, are charged with the very highest degree of care for the safety of persons lawfully using the highway or street, and “they must not only properly erect their plants, but must maintain them in such conditions as not to endanger the public.” Temple v. Electric Light Co., 89 Miss. 1, 42 So. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. 924; Potera *668 v. City of Brookhaven, 95 Miss. 774, 49 So. 617; Laurel Light & Ry. Co. v. Jones (Miss.), 102. So. 1. The controverted fact as to whether the wire was negligently broken by the servants of the city in felling a tree was, under the instructions of the court, submitted to the jury, and by its verdict the jury resolved this fact against the plaintiff, but the fact that the wire, carrying this deadly current, fell in the street, remained unexplained. Since the fact that the wire had fallen in the street was unexplained, the doctrine of res ipsa loquitur applied, aiid the presumption of neglig'ence arose as a matter of law, and was sufficient to make out a primafacie case for the plaintiff, and it thereupon devolved upon the defendant to meet, or rebut this prima-facie case by evidence that it exercised the highest degree of care in maintaining its wires in such condition as not to endanger the public.- Upon the proof of this record, we think that was a question for the jury under proper instructions. In granting and refusing instructions to the jury, the court below proceeded throughout on the erroneous theory that no presumption of negligence arose from the unexplained fact that this dangerous, wire fell in the street. The instructions requested by the plaintiff upon this point, and refused by the court, were either peremptory in.form or inaccurately drawn, and consequently correctly refused, but the court granted the defendant two or more instructions, charging the jury,' that, under the facts of this case, no presumption of negligence existed. These instructions were erroneous, and the judgment of the court below must therefore be reversed, and the cause remanded. Reversed and remanded.