Where the mortgage itself was valid, the giving thereof not being in violation of the statute, the taking of possession by the mortgagee in foreclosure proceedings, upon breach of condition, is not a "disposition" of the property, within the meaning of the Missouri statute, which uses the words "sale, trade, or other disposition." Farmers' Co-op. Co. v. Bank of Leeton (Mo.) supra, affirming majority opinion of Kansas City court of appeals (which is adopted as the opinion of the supreme court), and overruling upon this point previous rulings made by the Kansas City court of appeals in Vaughan v. Tyler (1920) 206 Mo. App. 1, 226 S. W. 1034 (set out on p. 754 of the annotation in 14 A.L.R.); Olean Mill. Co. v. Tyler (1921) 208 Mo. App. 430, 235 S. W. 186; Iten Biscuit Co. v. Abbitt (1923) Mo. App., 251 S. W. 72 (not cited specifically as having been overruled); as well as the previous ruling to the contrary made by the St. Louis court of appeals in Semmes v. Rudolph Stecher Brewing Co. (1916) 195 Mo. App. 621, 187 S. W. 604 (cited on p. 754 of the annotation in 14 A.L.R.). The Kansas statute, which uses the words "sale or disposal," does not apply to a sale by mortgagee, made under the terms of a valid mortgage, duly executed, delivered, and recorded prior to the creation of the debt sought to be enforced under the provisions of the statute. FAETH Co. v. BRESSIE (reported herewith) ante, 1046. The mortgage itself, it may be noted, was held valid as to plaintiff, for the reason that it was executed, etc., before the creation of his debt; and the case, with respect to this point, is distinguished from the case of Linn County Bank v. Davis (Kan.) supra, upon the ground that there the controversy was between the mortgagee and a then existing creditor of the mortgagor, it further appearing that the mortgagee had been placed in possession, which was not done in the instant case. KENTUCKY UTILITIES COMPANY, Appt., V. L. S. E. MARCUS MOORE, Admr., etc., of William T. and Arville E. Woodrum. WILLIAM WOODRUM'S GUARDIAN, Appt., V. KENTUCKY UTILITIES COMPANY et al. MARCUS MOORE, Admr., etc., of William T. and Arville E. Woodrum, 1. An electric company is not guilty of negligence in reclosing a switch which has kicked out in its power house, without ascertaining whether or not any person is in contact with the wires, so as to be liable for the death of one who, after the breaking of the wire which caused the switch to open, took hold of it while it was dead to move it, and was killed by the return of the current. [See annotation on this question beginning on page 1065.] 3. The mere fact that an electric transmission wire breaks when struck by a branch of a tree felled near it does not establish negligence on the part of the owner so as to render him liable for the death of persons coming in contact with the fallen wire. [See 9 R. C. L. 1198; 2 R. C. L. Supp. 942; 4 R. C. L. Supp. 640; 6 R. C. L. Supp. 591. See also annotations in 14 A.L.R. 1043; 56 A.L.R. 1033.] Electricity, § 12 absence of negliabsence of negligence as matter of law. 4. If an electric company is shown, without conflict of evidence, to have used the utmost degree of care and skill, that is, the highest degree of care and skill known, which is used or may be used by others engaged in the same or similar business under the same or similar circumstances, notwithstanding which death results to one coming in contact with its fallen wire, the court should hold, as matter of law, that it has not failed in the performance of its duty. [See 9 R. C. L. 1197, 1198; 2 R. C. L. Supp. 942; 4 R. C. L. Supp. 640; 6 R. 5. The right of a county in the public highways is not limited to an easement which will prevent its authorizing the construction and maintenance of an electric power line along the highway. [See 9 R. C. L. 1193; 2 R. C. L. Supp. 941; 5 R. C. L. Supp. 535; 10 R. C. L. 110, 113; 2 R. C. L. Supp. 974; 4 R. C. L. Supp. 654; 5 R. C. L. Supp. 543; 6 R. C. L. Supp. 597. See also annotation in 8 A.L.R. 1304 et seq.] Electricity, § 12 encroachment of wire proximate cause. 6. That an electric wire encroaches upon private property does not render the owner of the wire liable for the death of one touching it when it is broken by a falling tree, if there is nothing to indicate that the wire fell because it was over the private property. [See 9 R. C. L. 1197, 1198; 2 R. C. L. Supp. 942; 4 R. C. L. Supp. 640; 6 R. C. L. Supp. 591. See also annotations in 14 A.L.R. 1032; 56 A.L.R. 1021.] (McCandless, Dietzman, and Willis, JJ., dissent.) APPEAL by defendant Utilities Company from a judgment of the Circuit Court for Lincoln County overruling its motion for new trial of an action brought to recover damages for the killing of decedents by coming in contact with an electric wire. Reversed. APPEAL by guardian from a judgment of the Circuit Court for Lincoln County in favor of defendants in an action brought to recover damages for personal injuries alleged to have been caused by their negligence. Affirmed. APPEALS by administrator from a judgment of the Lincoln County Court in favor of defendant in an action brought to recover damages for death of plaintiff's decedents, alleged to have been caused by the negligence of defendant. Affirmed. The facts are stated in the opinion of the court. Messrs. K. S. Alcorn and Gordon & Laurent, for appellant Utilities Com pany: The Kentucky Utilities Company was not the owner of the transmission line. Thomas v. Maysville Gas Co. 108 Ky. 224, 53 L.R.A. 147, 56 S. W. 153. The company was not a trespasser as to the Woodrums. Holloway v. Louisville, St. L. & T. R. Co. 92 Ky. 244, 17 S. W. 572; Princeton v. Princeton Electric Light & P. Co. 166 Ky. 730, 179 S. W. 1074. The Woodrums were trespassers as to the Kentucky Utilities Company. Mayfield Water & Light Co. v. Webb, 129 Ky. 395, 18 L.R.A. (N.S.) 179, 130 Am. St. Rep. 469, 111 S. W. 712; Rodgers v. Union Light, Heat & P. Co. Ky., 123 S. W. 293; Henderson v. Ashby, 179 Ky. 507, 14 A.L.R. 1018, 200 S. W. 931. The act of the Woodrums in break fendants. In the other two cases there was a judgment in each case in favor of George Sandidge. The Kentucky Utilities Company has appealed from the $2,000 judgment in favor of the administrator of William T. Woodrum and from the $3,000 judgment in favor of the administrator of Arville E. Woodrum. Willie Woodrum has appealed from the judgment in favor of the Kentucky Utilities Company and George Sandidge, and the administrator of William T. Woodrum and Arville E. Woodrum has appealed from the judgment in each case in favor of George Sandidge. On the 3d day of April, 1926, William T. Woodrum and his two sons, Arville and Willie, were living on the farm of William Fields in Lincoln ing down the wire was the proximate county in a tenant house. The farm cause of the accident. Cundiff v. Owensboro, 193 Ky. 168, 235 S. W. 15; Trout v. Philadelphia Electric Co. 236 Pa. 506, 42 L.R.A. (N.S.) 713, 84 Atl. 967; Higginbotham v. Rome R. & Light Co. 23 Ga. App. 753, 99 S. E. 638. Messrs. J. S. Owsley and L. L. Walker for appellants Moore and guardian. Logan, J., delivered the opinion of the court: These five appeals involve three cases that were instituted in the Lincoln circuit court. They were tried together in that court, and will be disposed of by one opinion. W. T. Woodrum and A. E. Woodrum were killed as the result of coming in contact with an electric wire running from Stanford to Hustonsville. Willie Woodrum was injured by coming in contact with the same wire. The defendant in each of the suits instituted was the Kentucky Utilities Company and George Sandidge, an engineer of the company. Marcus Moore, as administrator of William T. Woodrum, recovered a judgment against the Utilities Company for $2,000, and as administrator of Arville E. Woodrum he recovered a judgment for $3,000. In the case of Willie Woodrum against the same defendants, the judgment was in favor of both de was occupied and under the management and control of Marcus Moore. The farm was located at the junction of the Stanford and Hustonsville highway with the Milledgeville highway. In the yard of the premises where the Woodrums resided, there was a tree partly decayed, near the house where they lived. They obtained the consent of Marcus Moore to cut the tree for firewood. wood. They undertook to fell the tree parallel with the electric wires running along the Hustonsville highway in front of the premises and between the house and the electric wires. When the tree fell, a branch of it struck the electric wire nearest to the house and broke it. There were two wires strung on the poles distant from each other about 27 inches. It is not disputed that the falling of the tree was the cause of the breaking of the wire. When the wire broke, it did not fall to the ground, but sagged to within about 3 feet of the ground. The wire broke at a point just beyond a tree to which was attached a bracket and the breaking allowed the wire to slide through the bracket as the wire sagged until the broken end of the wire was caught in the bracket. The north wire of the transmission (224 Ky. 33, 5 S. W. (2d) 283.) line came in close proximity to the tree to which the bracket was attached. The wire had come in contact with the tree frequently and to such an extent that a notch had been burned in the tree, which had from time to time interrupted the service of supplying electricity. The utilities company introduced evidence, however, to show that the condition of the wire in relationship to the tree had been remedied about two years before the accident by attaching a bracket to the tree and placing thereon an insulator and fastening the wire to the insulator with another wire. It is made to appear that the north wire was so attached to the bracket on the tree at the time of the accident. As we understand from the record, the wire broke at a point about 6 inches east of a pole, which stood approximately 77 feet from the west line of the house in which the Woodrums lived. This pole was located a little more than 10 feet beyond the tree to which the bracket was attached. The wire broke at a point a little more than 10 feet beyond the tree to which the bracket was fastened. The tree which was cut by the Woodrums stood something more than 14 feet from the transmission line, rather from a point directly under the transmission line. or The only persons present at the time of the breaking of the wire were William T. Woodrum, and his son Arville E. Woodrum, who were killed, Willie Woodrum, who was injured, and Milford Moore. When the wire sagged, Willie Woodrum took hold of it and pulled it out from under the branches of the tree and laid it on top of some of the branches of the fallen tree. He also took a part of the wire to a post and laid it up on the post, thereby taking up some of the slack in the wire. At the time Willie was handling the wire, his father was trimming the fallen tree. The father walked under the wire and took hold of it before Willie laid it on the post. Milford Moore walked with Willie Woodrum to the post, and, while 57 A.L.R.-67. they were standing there, they An In the instant cases it was shown by the evidence that there were several switches on the board at the Stanford plant. Stanford plant. There were separate switches for the separate lines and a main switch which affected all of the lines. If the switch of a particular line kicked out, it affected only that line, but if the main switch kicked out it affected every line going through the plant. It was established by the testimony that the main switch kicked out at the time of the breaking of the wire on the occasion in question. Sandidge, the engineer at the plant, was in the office. A pilot light in the office in the plant indicates that the electric current is flowing through the transmission lines, but, when the pilot light goes out, it indicates that the current is not flowing through the transmission lines. Sandidge received a telephone message from the office of the utilities company out in town informing him that the lights were out in the city. He then observed that the pilot light was out. He went from his office to the switchboard immediately and discovered that the main switch had kicked out. The switch is closed by throwing it back in place, and, when it is thrown into place, it restores the current on the transmission lines. When Sandidge had thrown the switch into place, he returned to his office, and within a very short time he was again directed by some one not disclosed to cut off the power as two men had been killed. He opened the main switch, thereby cutting off the power on all lines. It is a necessary inference that the breaking of the line caused the main switch to kick out, thereby stopping the current on all lines. It was during the brief interval that the current was off that the line was handled first by William T. Woodrum and then by his son, Willie, The switch was then thrown into place by Sandidge, thereby restoring the current at the very time when William T. Woodrum took hold of the wire. Suits were instituted, and the petitions alleged three grounds of negligence: (1) That the transmission line was defectively constructed and not properly maintained. (2) That the act of Sandidge in reclosing the switch without investigating the cause of the overload which was the reason for the kicking out of the switch was negligence. (3) That the utilities. company was a trespasser on the premises and on the highway, because the line extended partly over the property line of the Woodrum place, and because the company had no lawful right to maintain its line along the highway. It is suggested by counsel for the utilities company that it was not the owner of the transmission line and probably not responsible for the accident in any event. Since the company does not insists on the point, however, we shall not state the reasons for its contention. Counsel admit that, under the authority of Thomas v. Maysville Gas Co. 108 Ky. 224, 53 L.R.A. 147, 56 S. W. 153, and subsequent cases, a company generating electricity is responsible for the proper construction and maintenance of the electric lines in public places through which its current passes, regardless of the question whether it owns such lines or has any control over them. We are content to accept the statement of counsel for appellant on this point, and leave the matter as we find it. dealer. It has been often held by this court that one who is engaged in dealing in electricity must exercise the highest degree of care and skill known in the opera- Electricity— tion of its business care required of to prevent injury to persons at any place where they have a right to be for either business or pleasure. Electricity is a deadly agency, and its presence cannot be detected by any of the senses other than touch, and, after its discovery, it is too late to avoid the fatal or injurious consequences. The public does not understand much about electricity, and even the greatest scientists know very little about it. They have found out what will happen when certain conditions exist, but they are at a loss to know just why they happen, and it is not in every instance that science can explain what has happened after it has taken place other than by conjecture and speculation. That those who manufacture or use electricity must use the utmost care to con |