City of Owensboro v. Knox's Admr.

Opinion op the court by JUDGE O’REAR Affirming. The city of Owensboro owns and operates its own electric light plant, conducted both for public and commercial lighting. Appellee’s intestate, a child some fourteen years of .age, while passing along one of appellant’s streets, inadvertently and • innocently came in contact with a guy wire running from the top of a pole, along which were strung the wires for conducting the electric current, to a short post set near the sidewalk. By reason either of imperfect insulation or other improper and neglectful failure’ to keep the wires from coming in contact, the guy wire [454] had become charged with a heavy current of electricity. The child was severely shocked and burned. In this suit to recover damages for appellant’s negligence in suffering the guy wire to become in this dangerous condition the court charged the jury as to the law governing this case, which charge is the principal point of objection on this appeal. The verdict was for appellee’s intestate, and the city appeals. The instruction most complained of, and the only one of enough novelty, presumably, to have engaged the serious attention of learned counsel, is this: “The court instructs the jury that defendant was required to have and keep safe and properly constructed wires and poles at the place where plaintiff was injured; and that it was its duty, in using electricity at the place and manner shown in the evidence, to use such care as was commensurate with the danger, and to employ such skill and knowledge as are ordinarily possessed and 'exercised by those experienced in the nature of the element and probable consequences of its application for the purpose it was used; and that if they believe, from the evidence, the defendant failed to have there such wires and poles ox- to employ such skill and knowledge, in consequence of which plaintiff was injured, it was negligent, and they should jind for the plaintiff.” The criticism leveled against this instruction is that it imposes an absolute duty upon the city; whereas, it is argued, the law requires merely, as to keeping the city’s streets in a safe condition, that the city shall be liable only if it had notice of the defect a sufficient length of time to remedy it, or might have had such notice by the exercise of reasonable care on the part of its governing officials. This action is not to charge the city for neglecting to keep its streets in safe condition.- The city, as a body corporate, [455] has become the owner and operator of a plant for the generation and distribution of a most subtle and dangerous agency. The degree of care, prudence, and oversight required of it in the operation of the plant ought to be the same as if it were operated by an individual. The law, in allowing damages for a neglect of such duties, is not primarily to punish the negligent operator, but to protect and to compensate the injured person. If the corporation, whether municipal or private, embarks in a business so menacing to life and safety, it ought to use that degree of' care that is commensurate with the danger it creates. It must know whether its appliances are reasonably safe and in order. It will not be allowed to turn fo'ose in a populous community such a deadly agency without first taking every reasonable precaution to prevent its injuring those unawares among whom it is sent, or else it must bear the consequences of such failure. When the circumstances of the injury show that a “live wire” — one charged with a deadly current of electricity — has been allowed to be at a place where the public have a right to be and are, without reason to suspect the dangerous condition of the wire, a prima, facie case of negligence will have been established. In such a state of case the risk of assuming that the wires and other appliances are in a safe condition is not that of .the public, but of the operator of the plant. The operator has the better means of knowing. It is his1 duty both to provide such appliances as are reasonably safe, and by proper inspection and oversight to keep himself informed as to whether they are safe. Until the public has knowledge or notice to the contrary, they may assume that the operator has properly discharged his duties in these respects. It is not contended that the trial court’s instructions placed too high a degree of care upon appellant if it [456] had been a private instead of a public corporation. The degree of care required is in conformity to this court’s rulings in McLaughlin v. Louisville Electric Light Co., 100 Ky., 189, 18 R., 693, 37 S. W., 851, 34 L. R. A., 812, and Lexington Ry. Co. v. Fain’s Adm’r, 24 R., 1443, 71 S. W., 628. Another objection urged against the verdict is that in the 'Concluding argument to the jury counsel for plaintiff indulged in improper criticisms of one of appellant’s witnesses, going so far as to detail an event concerning the witness which was no wise connected with the record. The matter, as used, was improper, but it was of too slight significance to have at all influenced the jury, in any probability. Even if the whole effect of this witness’ testimony be eliminated from the record, it could not have affected the verdict. The testimony of this witness went solely to reduce the. recovery for a certain feature of suffering after the shock. It tended to show that the suffering complained of was not the result of the shock. Be that so. The verdict of the jury barely compensated for what had gone before. We concur in the trial judge’s opinion that the remark of counsel complained of was at most but a harmless error. Perceiving no error prejudicial to appellant’s substantial . right, the judgment must be affirmed, with damages.