(102 So.) pellee. 'Res ipsa loquitor.' 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." At the present time by statute of this state contributory negligence is not a defense, but only goes to minimize the recovery. The injured boy in that case was 10 or 12 years old when he received the injury, and the court held that the plaintiff should have been presumed incapable of contributory negligence, unless the presumption were rebutted by evidence; he should not be held to the same degree of care required of adults under like circumstances, but only to such care as he was capable of exercising considering his age, experience, knowledge, and intelligence, and evidence to rebut the presumption presents a question of fact for the jury. In McTighe, etc., v. Johnson, 114 Miss. 862, 75 So. 600, which was a suit for damages for an injury caused by the explosion of dynamite in which a child of tender years was injured, the court held that a person using dynamite has to use the highest degree of care and that the defendant in that case was liable for an injury caused to a child who found dynamite caps left in an outhouse by the servants of the defendant which the child finding the said caps turned over to his sister, who was injured and who caused the explosion by manipulating the cap with a hair pin. In that case it was held that a person leaving dynamite unguarded in a vacant house should anticipate that the house would be reoccupied by some one, and if reoccupied that small children would be there to play in and about the premises and that such dynamite might result in injuring them. [2] Applying these principles laid down in these cases, we think that the defendant could have anticipated that an injury would have occurred from such exposed wire carrying a large voltage of electricity passing through trees near the playground of the school building. It is not necessary that the particular injury should be anticipated, but that some injury would reasonably be anticipated, and, if the negligence of the defendant was a continuing and contributing cause of the injury, the defendant is liable. In Sioux City & Pacific R. R. Co. v. Stout, 17 Wall. 657-665 (21 L. Ed. 745), the Supreme Court of the United States, in one of the turntable cases, discussing the question as to whether the defendant could anticipate an injury resulting from its negligence there involved, said: reference to all children. When the jury learned from the evidence that he had suffered a serious injury, by his foot being caught between the fixed rail of the road-bed and the turning rail of the table, they were justified in believing that there was a probability of the occurrence of such accidents." It was the electricity in the feed wire that attracted the curiosity of the boys. It was this current of electricity exposed to the touch and situated as it was in trees, which boys would naturally be expected to climb, and of whose propensities or habits persons of ordinary intelligence would have knowledge, that prompted these boys to attach the wire thereto for the purpose of conveying this electric current so negligently exposed and situated to the plaintiff in this case who was injured. These children did not have knowledge of the dangers of electricity and of the use of it which would enable them to appreciate and understand its harmful effects. The defendant however knew, or should have known, that it was likely to cause injury when thus situated and exposed. It was the electricity in the wire, and not the wire itself, that constituted the danger, and it was this electricity which the boys sought to convey from the feed wire to the plaintiff for the purpose of shocking the plaintiff. The deadly agent of electricity was at the place where the injury occurred partly through the negligence of the defendant. Its negligent transmission under the circumstances was a contributing cause of the injury. The act of the boys who attached the wire was not the sole cause of the injury. It is true that this particular injury would not have happened had the boys not attached the wire to the feed wire, but it is also true that the injury would not have happened but for the negligence of the defendant in having an uninsulated exposed wire situated like the one here involved was. So in our opinion the act of the boys was not an independent, efficient, intervening cause. The boys here were below the age of 14 years, and incapable of fully appreciating the dangers of the wire and of playing with it. But the defendant knew, or ought to have known, of such danger, and ought to have guarded against it either by removing the trees from proximity to the wires, or by insulating the wire, or by both. We think there is not sufficient merit in the other assignments of error to warrant a discussion of them in view of the settled law of the state and of the instructions given the defendant, except we will briefly discuss the assignment that the verdict is excessive. [3] The injured boy is about 11 years of age and suffered considerable pain, and the "That the turntable was a dangerous machine, which would be likely to cause injury to chil-injury to his right hand is permanent and dren who resorted to it, might fairly be infer-will impair his usefulness through life. It red from the injury which actually occurred to is peculiarly a matter for the jury to deterthe plaintiff. There was the same liability to mine the proper compensation for injuries of injury to him, and no greater, that existed with this kind, and unless there is something in the record which shows that the jury was biased, partial, or prejudiced in the case, and where the amount is not so large as to shock the conscience of fair and intelligent men, we will not disturb its finding. At the time of the injury the purchasing power of a dollar is one element that may be properly considered in determining the number of dollars it requires to compensate for an injury. Looking carefully through the record, sensible of our obligations to administer the law and secure the litigants fair trial, we are unable to say in this case that the verdict is excessive. The verdict is therefore affirmed. Affirmed. ANDERSON, J., dissenting. PICKLE v. STATE. (No. 24321.) warrant founded upon an affidavit in which affidavit it was alleged that the affiant "has reason to believe and does believe that vinous, malt, alcoholic, intoxicating and spirituous liquors are being kept and offered for sale and barter, and are sold and bartered (or are being kept to give away and are being given away to induce trade) in violation of law in a residence occupied by Curtis Pickle, in the county of Leake, state of Mississippi, and this suspicion is not feigned of malice to said Curtis Pickle, but is founded on credible information, which he believes to be true," and prays for the issuance of a I search warrant. The warrant describes the premises to be searched as "in a building occupied by Curtis Pickle, or in a certain vehicle, to wit, on premises or on the person of Curtis Pickle in the county of Leake, state of Mississippi," and commands the officer to make the search and enter the rooms, out (Supreme Court of Mississippi, Division B. buildings, or premises by breaking if neces Dec. 8, 1924.) (Syllabus by the Court.) 1. Criminal law 1032 (7)—Indictment and information 166-Venue must be proven as laid in indictment or affidavit; absence of proof of venue as laid in indictment or affidavit may be raised in Supreme Court for first time. In a criminal case the venue is jurisdictional and must be proven as laid in the indictment or affidavit, and the absence of this proof may be raised in the Supreme Court for the first time. 2. Criminal law 564 (1)-Evidence of affidavit and search warrant does not establish venue; only efficacy of affidavit and search warrant as evidence is to establish rightfulness of search and seizure. In a prosecution for a criminal offense predicated upon evidence found by means of an affidavit and search warrant, which affidavit and search warrant are introduced by the state, the introduction in evidence of the affidavit and search warrant does not establish venue. The only efficacy of such affidavit and search warrant as evidence is to establish the rightfulness of the search and seizure, and the recitals of these do not prove venue or other element of the crime charged. sary, etc. Search was made and no liquors were found in the house or room occupied by Curtis Pickle. A store building was searched as well as the residence, and no liquor being found in them, the officer proceeded to search other parts of the place owned by Curtis Pickle, going outside of the yard and into a barn and lot and into the woods near the barn. While searching in the barn the feed trough was removed and a jug was found buried under the trough containing about a quart of "moonshine" whisky. [1, 2] On the trial in the circuit court the state failed to prove that the liquor was found in Mississippi and failure to prove venue is assigned for error. The Attorney General confesses that under former decisions of this court the proving of venue is essential to a conviction, but he urges that the affidavit and search warrant were introduced in evidence and that they described the premises of Curtis Pickle as being in Leake county, Miss., and in district 2 of that county. He concedes that the variance between the affidavit and the search warrant was fatal to their validity, but contends that Pickle admitted that the liquor was found by the officer in the barn on his premises, and Appeal from Circuit Court, Leake Coun- that under previous decisions the validity of ty; G. E. Wilson, Judge. Curtis Pickle was convicted of the unlawful possession of intoxicating liquors, and he appeals. Reversed and remanded for new trial. the search warrant and affidavit become immaterial. In our view of the case the introduction of the search warrant and the affidavit upon which it was founded have no tendency to prove venue. The only evidential value Jas. T. Crawley, of Kosciusko, and W. T. they would have would be to justify a search Triplett, of Carthage, for appellant. and make legal evidence obtained by means E. C. Sharp, Asst. Atty. Gen., for the State. of a search. At most, it is a mere charge and ETHRIDGE, J. Curtis Pickle was convicted in the circuit court of Leake county for having intoxicating liquors in his possession in district 2 of said county. The prosecution came about by the issuance of a search has no efficacy in establishing the venue of the case, and by reason of the failure of the state to prove venue the judgment must be reversed and the cause remanded for a new trial. Reversed and remanded. 6 Alva BRENT v. STATE. (No. 24305.)* Dec. 1, 1924.). . (Supreme Court of Mississippi, Division A. B. N. Knox, of New Albany, for appellant. Harry M. Bryan, Asst. Atty. Gen., for the State. PER CURIAM. Conviction in lower court Appeal from Circuit Court, Pike County; of attempt to manufacture liquor, with senE. J. Simmons, Judge. J. A. Wiltshire, of Magnolia, for appellant. HOLDEN, J. The appellant, Alva Brent, was tried on a charge of murder, and convicted of manslaughter, and sentenced to 15 years in the penitentiary; hence this appeal. We have carefully examined all of the grounds urged for reversal by counsel for the appellant, and we find no reversible error in the record. tence to three years in penitentiary. Affirmed. Horace BEASLEY v. STATE. (No. 24439.) (Supreme Court of Mississippi, Division A. Dec. 1, 1924.) Appeal from Circuit Court, Greene County; C. C. Miller, Judge. A. T. L. Watkins, of New Augusta, for appel lant. E. C. Sharp, Asst. Atty. Gen., for the State. PER CURIAM. Conviction in lower court of having whisky in possession, with sentence to pay fine of $100 and two months' imprisonment. Affirmed. The main point presented for reversal is that the lower court erred in refusing a continuance of the case, on account of the absence We have examined of an important witness. the action of the lower court with reference to this matter, and, without discussing the details of the procedure followed by the circuit judge, we do not think the court erred in refusing to continue the case, nor in refusing to grant a new trial on this ground. Therefore W. T. BARNETT, Adm'r, v. W. J. BOLTON the judgment of the lower court is affirmed. Affirmed. MANSELL PANNELL v. STATE. (Supreme Court of Mississippi, Division A. Appeal from Circuit Court, Union County; Thos. E. Pegram, Judge. et al. (No. 24518.) (Supreme Court of Mississippi, Division A. Dec. 1, 1924.) Appeal from Chancery Court, Prentiss County; Allen Cox, Chancellor. J. E. Berry, of Boonville, for appellant. (102 So.) PER CURIAM. Conviction in lower court of having liquor in possession, with sentence to pay fine of $500 and to 90 days' imprisonment. Affirmed. SCHAEFER et al. v. VOYLE et al. (Supreme Court of Florida, Division B. Aug. 1, 1924. Rehearing Denied Oct. 2, 1924.) (Syllabus by the Court.) 1. Evidence 63-Insane persons m2Every person presumed sane until contrary appears; burden of proof of insanity in civil actions on party alleging it. Every person is presumed to be sane until the contrary appears, and in civil actions the burden of proof of insanity rests upon him who alleges it. The finding of a chancellor on conflicting evidence is presumptively correct, and where there is legal evidence to support it the decree will not be reversed unless it clearly appears to be erroneous. 3. Wills 290-Where testator shown in custody of will which cannot be found after death, destruction with intention to revoke presumed. Where it is shown that a testator had his will in his custody and it cannot be found after his death, it is presumed, in the absence of other evidence, that he destroyed it with intention to revoke. 4. Wills 481-Generally ambulatory and have no operation until testator's death. Generally wills are ambulatory and have no operation until the death of the testator. 5. Wills 179-Execution of second will afterwards destroyed by testator does not affect validity of prior will. The execution of a second will, which is afterwards destroyed by the testator, does not affect the validity of a will previously executed by him. 6. Wills 198-Destruction of will containing revoking clause may revive, in absence of showing of contrary intent, prior will existing at testator's death. In the absence of a showing of contrary intent, the destruction by the testator of a will executed by him which contained a provision revoking former wills, may revive a will previously made by the testator and in existence at the date of his death. Appeal from Circuit Court, Hernando County; W. S. Bullock, Judge. Proceeding by Amelia K. Schaefer and others against Charles C. Voyle and another, as executors of the last will and testament of Lizzie A. Butterweck, deceased, and others, for revocation of order probating will. From an order and judgment confirming the probate of the will, plaintiffs appeal. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Suggestion of error overruled December 22, 1924. |