Williams v. City of Canton, 103 So. 811 (Miss. 1925). · Go Syfert
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Williams v. City of Canton, 103 So. 811 (Miss. 1925). Cases Citing This Book View Copy Cite
8 citation events (2 in the last 25 years) across 2 distinct courts.
Strongest positive: Mississippi Power Co. v. Thomas (miss, 1932-03-14)
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discussed Cited "see, e.g." Mississippi Power Co. v. Thomas (2×)
Miss. · 1932 · signal: see also · confidence low
See, also Williams v. Canton, 138 Miss. 661 , 103 So. 811 ; Cumberland Telephone & Telegraph Co. v. Cosnahan, 105 Miss. 615 , 62 So. 824 ; Temple v. Light & Power Co., 89 Miss. 1 , 42 So. 874 , 11 L.
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Williams
v.
City of Canton. [Fn]
Mississippi Supreme Court.
Mar 30, 1925.
103 So. 811
1925 Miss. LEXIS 97
Powell, Harper Jiggetts, for appellant. I. THE COURT ERRED IN REFUSING TO GRANT CERTAIN INSTRUCTIONS TO THE PLAINTIFF. Potera v. City of Brookhaven, 95 Miss. 774 , holds that the mere fact that the wires had fallen into the street, unexplained, was prima-facie evidence of negligence on the part of the appellee. Potera v. Brookhaven, is on all fours with the case at bar. The defendant in the case at bar did not show nor did it attempt to show that the falling of the wire or the injury to the boy was one of inevitable accident. The defendant did not explain, nor indeed did defendant attempt to explain how the wire happened to fall. Plaintiff introduced testimony showing that the wire was in a defective condition, showing that it had been in a defective condition for some time, and showing that the insulation on said wire was so rotten in places that it hung down in shreds from the wire. The city did not rebut this, the plaintiff showed that the defect of the wire was so open and notorious that the defendant by the exercise of even the slighest care could, and should, have known that it was operating a wire in a defective condition. It was the duty of the defendant to use the utmost skill and care in dealing with the deadly agency of electricity. The courts of Mississippi have uniformly held that a corporation handling this deadly and unseen power for profit is accountable for the highest degree of care. William Temple v. McComb City Electric Light Power Company, 89 Miss. 1 . The case at bar is one of res ipsa loquitur. Our court has declared in a similar case, the Potera case that the doctrine of res ipsa loquitur, applied, See also A. V. Railway Co. v. Groome, 97 Miss. 201 . Appellant submits that this wire presumably would not have fallen if due care had been exercised. Wires are not in the habit of falling promiscuously and without cause. Yet the city did not attempt to give any valid reason why it did fall, though the appellee did attempt to show one way in which it did not fall. The presumption in the case at bar, as clearly shown, is that the defendant was negligent. The defendant failed in its obligation to rebut the presumption by evidence of due care. Therefore the doctrine of res ipsa loquitur applies and a peremptory instruction should have been granted the plaintiff. II. THE COURT IMPROPERLY GRANTED TO THE DEFENDANT THE FOLLOWING INSTRUCTION: \The presumption of the law in this case and until the contrary is proved is that the defendant is not liable.\"
Cook.
[*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.