Potera v. City of Brookhaven

Smith, J., delivered the opinion of the court. Appellee owned and operated an electric light plant, by means of which its streets were lighted. On the evening of March 8th, or the morning of March 9th, between the hours of eleven o’clock p. m. and four o’clock a. m., one of the lamps used in lighting the streets fell, and was lying in the street on the morning mentioned, when, at about six o’clock, appellant, a boy ten or twelve years old, came in contact .with one of the wires, which was then attached and conducting electricity to the lamp, and was injured in the head and hand, necessitating the amputation of the latter. Appellant testified that he was walking along the street, and did not see the wire, or know it was there, until he came in contact with it. The evidence of appellee showed that appellant and another boy were walking along the street, when they observed the lamp, and appellant proposed that they .go over to it, and “see if there was a bird’s nest in it;” that on reaching the lamp appellant said, “I bet you won’t touch this wire,” and then touched it himself, thereby receiving the injury. This lamp was not on the sidewalk, but was in the middle, and at the intersection, of two streets. There was a verdict and judgment for the city; hence this appeal. In determining the city’s liability, there was only one question for the jury to decide, and that was whether appellant was guilty of and chargeable with contributory negligence. Corporations, private or municipal, engaged in the business of transmitting electricity along highways, are charged with the [783] very highest degree of care for the safety of persons lawfully using the highway. 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 South. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698; Walter v. Baltimore Electric Light Co. (Md.), 71 Atl. 953. The mere fact that this lamp, with the wires attached thereto, bearing their invisible, but deadly, current, had fallen into the ■street, unexplained, was prima facie evidence of negligence on the part of appellee.' “Res ipsa loquitur.” There being no explanation of this fact, other than that shown by the evidence introduced by plaintiff, which was to the effect that the plant of the city was out of repair, appellant was entitled to recover, 'unless the jury believed that he was guilty of, and chargeable with, contributory negligence. It follows, therefore, that it was error to grant those instructions tendered by appellee which submitted the question of negligence on the part of the city to the jury. Appellant, on account of his tender age, is prima facie presumed not to be possessed of sufficient discretion to make him guilty of contributory negligence for his failure, if such there was, to exercise due care for his safety. This presumption may be overcome by proof, in which event it becomes a question of fact for the jury. Even when chargeable with contributory negligence, a child of the tender age of appellant is not held to the same degree of care as is required of adults under similar circumstances, but only such care as it is capable of exercising, taking into consideration its age, experience, knowledge, and intelligence. Instructions Nos. 3, 5, and 6, granted appellee, withdrew altogether from the jury the question of whether appellant, by reason of his tender years, was possessed of sufficient discretion to permit his being charged with contributory negligence. This principle is referred to in instruction No. 3; but by it the jury were told that appellant was chargeable with contributory negligence “if he was an intelligent boy for [784] one of bis years.” Tbis was not tbe test. Tbe jury, from bis age, intelligence, knowledge, and experience, must determine whether be possessed sufficient discretion to permit bis being charged with negligence. Instruction No. 2, granted appellee, charged tbe jury that, in determining tbe question of contributory negligence, they must “consider tbe fact that the plaintiff in tbis case has lived all bis life in a city, where they bad electric lights and electric wires, and tbe fact that tbe plaintiff thus bad opportunities to learn and appreciate tbe dangers of such agencies.” Tbis was error. It was argumentative, a charge on the weight of tbe evidence, and singled out and gave undue prominence to certain portions of tbe evidence, to tbe exclusion of tbe remainder. Reversed and remanded.