
    Charles F. Claiborne, Judge.
    THERESA ABADIE Vs ORLEANS-KENNER TRACTION CO.
    No. 8436
    May 8th, 1922.
   CHARLES F. CLAIBORNE, JUDGE.

Plaintiff laid her hands upon wires charged with electricity and was injured; hence this suit. She alleged that in October 1920 she was a visitor at the home of Peter Meisberg, which is situated near the right' of way of the Orleans-Kenner Traction Co.; that while at said home she went to the back fence and caught hold of it for the purpose of looking over the same; that said fence is made of chicken wire; that she then and there received a severe shock of electricity which burned both of her hands severely and necessitated her being taken to the hospital for treatment; that said wire fence became charged with electricity in the following manner; a guidewire of defendant company attached to a telegraph pole crosses the property of Peter Meisberg and holds the main feed wire; that owing to faulty construction said guidewire became loosened from the main feed wire and dropped upon the fence of Peter Meisberg; at another point said guidewire touched the live wire which operates the signal system of defendant company; that the wire fence thus became charged with electricity thus causing the injury to petitioner; that it was negligence, to construct wires over private property of Peter Heisbergt- that petitioner suffered severe pains during a period of two weeks; that she went to the hospital three times a week for treatment; and that scars remain upon her hands; that -she was unable for a period of one month to perform her regular work and lost her salary amounting to $64, and that by reason of her physical and mental anguish she is entitled to $936 more.

The defendant pleaded a general denial, and alleged

"that if plaintiff was injured it was due to her own contributory negligence",

and further alleged that it

"is not responsible for anything that might have happened due to an act of God or conditions beyond its control".

Accompanied by written reasons, the trial judge rendered judgment in favor of plaintiff for $500. Prom this judgnent the defendant has appealed.

The plaintiff, by sufficient testimony, has supported the allegations of her petition.

The cause of the accident is thus given by an employee of the company:

"The wife shook when the car came around the curve, and it broke loose and pulled away from the trolley-wire". A lineman of the company thus expains the cause:
"Well, the shaking of the wire caused the -clamp to let gp, and the wire fell x x the trolley fits' on the wire With a clamp".

A clanrp or Clasp is any instrument or contrivance used td hold two things together.

The company's argument is that all the wires and materials at this curve had been renewed within the last two months, and that if any of them proved defective it was not their fault., but an act of Bod beyond their control. It has been held that if latent defects exist in materials Used by carriers, not discoverable by plose inspection, that the carrier is not liable if they break. 114 La. 981 (995); 42 A. 673; 10 C. J. 955; 29 Cyc 473.— 3s C*-' *? 3

The law was thus stated in Jackson vs Natchez Ry. 114 La. 995:

"The defendant will have to be held liable in connection with said bridge, unless it can show that the bridge as originally constructed was as safe as the highest degree of practical care and skill could make a bridge of that class, and that, to the fullest extent that the highest degree of care and foresight could suggest, it was inspected for discovering and remedying any defects that might have developed in it from the operation of the road or other causes, and in case the defect was latent in the material, then that the material was tested before being put in position".

In the case before us, there was no latent defect in the materials. But the clamp was deficient or insufficient or had been adjusted in an awkward manner, and the defect had

"developed in it from the operation of the road".

This was a clear case of negLigence,

"The general rule seems to be that negLigence win be presumed from the sagging or breaking of electric wires". 29 Cyc 594 (C). ~3 12-/-.

In the case of Moren vs N. O. Railway and Lt. Co. 125 La. 944, the Supreme Court said on p 959:

"The duty which every one owes to so use his own as not to injure another;and where that which one uses is an agency of an extraordinarily dangerous character,, the law throws upon the user the burden of the greater care". 21 Am. & 2. E. L. p 466; 20 C. J. p 360; 116 La. 1033.

The plea of contributory negligence is not sustained. The burden of proof was upon the defendant. 145 La. 334,(338); 112 La. 599; 29 Cyc 601 (b); 20 C. J. 383. The plea is based upon the testimony of an employee of the defendant Company who testifies that he saw the dangLing wire, and that when the plaintiff approached the fence he halloed to her:

"Don’t touch nothing around here because it is hot"; she didn't pay any attention; she grabbed hold of the wire fence and she got a shock. The plaintiff says that this employee, who is sixteen years old, was inside of the house at the time she jumped on the fence, arid that -» „
"he did not say anything to her".

At any fate this employee's words were not sufficiently explicit to warn her of the danger, otherwise we cannot presume that the plaintiff would, have knowingly exposed herself to the danger.

"The Courts generally hold that the presumption is that the person injured was in the exercise of due care, basing the presumption on the natural instinct of preservation". 29 Cyc 596.

The amount of damage is the only remaining question. Although^as is customary in such cases, the plaintiff exaggerates the extent of her sufferings, the fact is that- she did suffer, and that there are scars on her fingers which the trial judge Saw. There was no witness to contradict the plaintiff's testimony. Both of her hands were bandaged for one week, and she was kept from her work for four weeks.

The amount allowed by the trial judge is not .shown to us to be excessive, and under repeated decisions, we leave the responsibility with him. 116 La. 1033; 123 La. 615.

Judgment affirmed.

May 8th, 1922.  