THE SOUTHWESTERN REPORTER VOLUME 273 PINE BLUFF CO. v. BOBBITT et al. (No. 16.) (Supreme Court of Arkansas. May 25, 1925. Rehearing Denied July 6, 1925. Dissenting Opinion on Rehearing, July 13, 1925.) 1. Electricity 19(9)-Negligence in not discovering condition of wires held for jury. Where child was injured by coming in contact with electric company's guy wire, which had become charged because wire not belonging to company was fastened to guy wire and thrown across high-tension wire, held that only issues for jury were how long condition existed and whether company was negligent in not discovering and removing foreign wire. 2. Electricity16(4)-Instruction as to care required to discover guy wire had become charged held correct and improperly refused. Requested instruction, that if wire causing injury was placed over defendant's electric wire and connected with guy wire by some unknown third party, so as to charge guy wire, thereby injuring plaintiff, and if company did not know of such connection and could not have known of it by exercise of ordinary care it would not be liable, held, correct, and improperly refused. 5. Electricity 19(4)-Evidence as to how foreign wire attached to guy wire and hightension wire came to be there, and motive in placing it there, held properly excluded. In action for injuries from contact with company's guy wire, evidence as to how foreign wire connecting guy wire with high-tension wire was placed there by third person, and motive of person who placed it there, was properly excluded as immaterial. 6. Evidence 110-Evidence that company's employee attempted to secure admission that witness fastened foreign wire to guy wire and high-tension wire held inadmissible. In action for injuries from contact with electric company's guy wire, evidence that company's employee attempted to induce witness to admit that he had attached foreign wire to guy wire and to high-tension wire on promise that company would pay his fine held, inadmissible, in absence of showing that employee had authority to make such agreement. Hart, J., dissenting. On Rehearing. 7. Witnesses 405(1)-Evidence that company's employee attempted to secure admission that witness fastened foreign wire to hightension wire held inadmissible to impeach wit ness. In action for injuries from contact with 3. Electricity~16(4)-Rule as to care requir- electric company's guy wire, evidence that ed of electric companies stated. company's employee attempted to induce witness to admit that he had attached foreign Rule that electric companies must use mere-wire to guy wire and high-tension wire on promly ordinary care to discover condition of wires dangerous to persons likely to come in contact therewith applies, not only to its own wires, but extends to prevention of escape of dangerous current through any wires brought in contact with their own. 4. Electricity 19(3)-Burden on company to show reasonable care to discover and remove foreign wire causing guy wire to become charged. That child was injured by coming in contact with company's guy wire made out prima facie case of company's negligence, and burden was on it to show that it used ordinary care to discover and remove foreign wire which caused guy wire to become charged, and it could not excuse itself by showing merely that foreign wire was attached to guy wire by some third party. ise that company would pay his fine was not admissible to impeach company's witness, who, on cross-examination, denied that such offer had been made, and plaintiff was bound by negative answer of witness. 8. Trial 412-Appellant, objecting and excepting to incompetent testimony, did not waive error in its admission by subsequently introducing contradictory testimony. Appellant, objecting and excepting to incompetent testimony, did not waive error in its admission by subsequently introducing contradictory testimony, since it was appellant's privilege to remove damaging effect thereof, if possible. Hart, J., dissenting. Appeal from Circuit Court, Jefferson County; T. G. Parham, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 273 S.W.-1 HUMPHREYS, J. 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. [1] There is no dispute in the evidence that the injury was caused by a 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. [2] 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 present 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 tion 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 instruction is as follows: given by the court to guide the jury. Said "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 criticized 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 Co. v. Pemberton, 86 Ark. 329, 111 S. W. 257, as follows: We "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. have already stated that reasonable care or ordinary care is a degree of care varying with the circumstances of each case, and which, in ous current of electricity, requires the exerthe case of electrical wires carrying a dangercise of a high degree of care to keep them properly insulated and so suspended as not to endanger lives." [3] 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, 61 Ark. 381, 33 S. W. 426, 31 L. R. A, 570, 54 Am. St. Rep. 262; Southwestern Tel. & Tel. Co. v. Myane, 86 Ark. 548, 111 S. W. 261. [4] Appellant contends that the instruc tions 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 (273 S.W.) which should not have been carrying elec- | have inspired the third party to commit the tricity in the proper operation of the plant. act. We regard this testimony as wholly This guy wire was under the control and immaterial after it was shown by the undismanagement of appellant. Southwestern Tel. puted testimony that such wire was not a & Tel. Co. v. Bruce, 89 Ark. 581, 117 S. W. part of the construction of the plant and 564: Commonwealth Public Service Co. v. could serve no useful purpose or, in other Lindsay, 139 Ark. 283, 214 S. W. 9; Arkan- words, that it was a foreign wire. It is imsas Light & Power Co. v. Jackson (Ark.) 267, material how it was placed there or what S. W. 359. It was appellant's current of motive inspired it to be done, if appellant's electricity which burned the child, and it linemen did not do it. We do not see how could not excuse itself by simply showing the exclusion of these pieces of evidence that the current was connected to the guy could have prejudiced appellant's cause. 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, 33 S. W. 426, 31 L. R. A. 570, 54 Am. St. Rep. 262, this court, in comparing that case with the case of Texarkana Gas & Electric Light Co. v. Orr, 59 Ark. 215, 27 S. W. 66, 43 Am. St. Rep. 30, said: [6] 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 remanded, for a new trial. judgments are reversed and the causes are HART, J. My dissent is based on the ground that the matters embraced in instruction No. 14 asked by the defendant and refused by the court is substantially covered by instruction No. 5, which was given and “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. Subject-reads as follows: ing 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." "The defendant, Pine Bluff Company, is claiming that the connection between its hightension wire and its guy wire was made by a connecting wire which was placed between the two wires by some third person. The burden is upon the Pine Bluff Company to show by a preponderance of the evidence that the said connecting wire was actually placed there by some third person, and even this would be no defense against its liability in this case, unless it was also shown by a preponderance of the evidence that the dangerous condition of its guy wire could not have been detected and corrected by the exercise on its part of ordinary and reasonable care in time to have prevented the injuries sustained by Lawson Bobbitt." Instruction No. 14 is set out in the majority opinion, and need not be repeated structions shows that the instruction given here. I believe a comparison of the two infully and fairly covers the matters embraced in the refused instruction, and it is well set 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 sub-tled that the trial court need not repeat instantially correct and impervious to attack Neither do I think that any prejudice resultstructions on the same phase of the case. by general objections. ed from the admission of evidence as indicated in the opinion. [5] 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 On Rehearing. HUMPHREYS, J. [7] On motion for rehearing, learned counsel for appellee strenu ously insist that this court erred in regard, bitt, Clint Green, in the presence of P. C. [8] Appellant objected and excepted to the introduction of Max Fry's testimony in this particular, and did not waive the error committed by the court in admitting it by afterwards introducing the testimony of Basham in contradiction of Fry's statement. It was the privilege of appellant, after saving its exception to the inadmissible and prejudicial testimony of Fry, to remove the damaging effect thereof, if possible, by the introduction of testimony in contradiction of his statement. As the reversal of the judgment must stand on account of the error of the trial court in admitting Fry's testimony, we deem it unnecessary to decide whether instruction No. 14, requested by appellant and refused by the court, was fully covered by instructions Nos. 5 and 6 requested by appellee and given by the court. We think, on a retrial of the cause, instruction No. 14 should be given as an alternative instruction affirmatively presenting appellant's theory of the case. The motion for rehearing is overruled. HART, J. (dissenting). I dissent from the additional opinion of Judge HUMPHREYS on rehearing, to the effect that the testimony of Max Fry was collateral. Max Fry testified that, after the accident to Lawson Bob pay a small fine for it, the company would I do not think it is sound to say that, if a In this connection it may be stated that the majority opinion virtually concedes that I was correct in my dissenting opinion of the analysis of the instructions, and I repeat that a simple comparison of the instructions in question shows this to be true. 1 |