Summary
In Butler v. Brogdon, 110 Ga. App. 352 (138 S.E.2d 604), a six-year-old child went upon premises where a building operation was in progress and was burned by a raw, bare, uninsulated live wire alleged to have been left over the weekend in an inherently dangerous condition, and the sustaining of a general demurrer was affirmed.
Summary of this case from Crosby v. Savannah Electric c. Co.Opinion
40753.
DECIDED SEPTEMBER 9, 1964. REHEARING DENIED SEPTEMBER 22, 1964.
Action for damages. Fulton Superior Court. Before Judge Shaw.
Claude F. Brackett, Jr., for plaintiff in error.
Smith, Ringel, Martin, Ansley Carr, H. A. Stephens, Jr., Ralph H. Witt, Gambrell, Harlan, Russell, Moye Richardson, E. Smythe Gambrell, Edward W. Killorin, contra.
1. (a) The six year old child when injured was a trespasser.
(b) No affirmative duty is owed by the owner or proprietor of land to a trespasser (1) to anticipate his presence or (2) to keep the premises up to any given standard of safety.
(c) A negative duty exists on the owner or proprietor not to prepare pitfalls or mantraps for a trespasser nor otherwise to injure him wilfully or wantonly.
DECIDED SEPTEMBER 9, 1964 — REHEARING DENIED SEPTEMBER 22, 1964.
The petition of James H. Butler, Jr., a child six years old, by next friend, asserts that the defendants as building contractors were jointly engaged in constructing a dwelling in the City of East Point in which young Butler was injured by contacting an uninsulated live electric wire in the dwelling's basement. It is alleged that the defendants had connected and installed the electrically charged wire and were making use of it in the construction project. A portion of this wire was "exposed, unwrapped, raw, bare and without insulation." The defendants negligently and carelessly maintained the wire which constituted "an inherently dangerous condition, which fact was known or in the exercise of ordinary care, could have been known to the defendants." "On Sunday, June 3, 1962, at about 11:00 o'clock A. M., your petitioner, a minor of tender years, being only six years of age, was playing in and about said dwelling." "That your petitioner jumped from the front door area of said dwelling into the basement" where his right hand came in contact with the uninsulated wire severely burning and injuring him in stated particulars. "The petitioner, being a child of the tender age of six years, did not know of, and could not appreciate or anticipate the existence of said inherently dangerous condition." "That the defendants knew, or in the exercise of ordinary care, should have known that children of tender years, including your petitioner, would come upon the said premises where said dangerous exposed electric wire or wires were being maintained by them." "That the defendants were negligent in the following particulars: (1) In creating said inherently dangerous and hazardous conditions; (2) In using said wire or wires which were exposed, unwrapped, raw, bare, and uninsulated, transmitting electricity; (3) In allowing said dangerous condition to exist; (4) In failing to cut off or shut off the flow of electricity into said basement and leaving said dangerous unguarded and unattended; (5) In leaving said dangerous wire or wires in a position which exposed your petitioner to danger, which was unknown to him; (6) In leaving said dwelling open to your petitioner while dangerous condition existed; (7) In failing to warn your petitioner of said inherently dangerous condition."
The trial judge sustained the defendants' general demurrers and dismissed the petition. Exceptions are brought to that judgment.
This case does not rest on the "turntable" or "attractive nuisance" doctrine for there is nothing in the petition charging the injury producing dangerous instrumentality as something within the ambit "of actual and compelling attraction for children." Martin v. Seaboard Air Line R. Co., 101 Ga. App. 819, 821-822 ( 115 S.E.2d 248). In consequence the case must be controlled solely by the general rules applying to trespassers.
Here the child for whose injuries suit is brought is only six years old. Yet the petition shows conclusively that the child when injured was a trespasser. "A child who strolls upon private premises to play, without the permission or consent of the owner or person in charge, is a trespasser upon the premises." Rowland v. Byrd, 57 Ga. App. 390 ( 195 S.E. 458). Although Rowland does not say so, the truth is that the child about whom it spoke was only five years old. See the record of case No. 26691 on file in the office of the Clerk of the Court of Appeals, and see Mobley v. City of Monroe, 37 Ga. App. 364 ( 140 S.E. 516); Bridges v. Ga. Power Co., 39 Ga. App. 400, 401 (2) ( 147 S.E. 589); Smith v. Ga. Power Co., 43 Ga. App. 210 ( 158 S.E. 371).
In Central Ga. Power Co. v. Walker, 20 Ga. App. 645, 647 ( 93 S.E. 306), the late esteemed Judge Walter F. George of this court (later an Associate Justice of our Supreme Court and after that a most highly regarded United States Senator) wrote that "The duty to a trespasser does not flow from the relation; none exists, except a wrongful relation. It can arise only with the peril to the trespasser. Until the peril arises, and until the defendant knows of the peril to the trespasser, there can be no duty to warn the trespasser. To assume such a duty is to assume the prior duty to think for the plaintiff, and to anticipate that he may put himself in a position of peril."
In Mandeville Mills v. Dale, 2 Ga. App. 607, 609-610 ( 58 S.E. 1060), Judge Powell said relative to a trespasser that ". . . liability arises only where the injury has been occasioned by the wilful and wanton negligence of the proprietor or owner. No duty of anticipating his presence is imposed; and . . . the duty to use ordinary care to avoid injuring him after his presence and danger is actually known is, in point of fact, merely the duty not to injure him wantonly and wilfully . . . to the trespasser, no duty arises of keeping the usual condition of the premises up to any given standard of safety, except that they must not contain pitfalls, and man-traps and things of that character."
The petition here does not specify the uninsulated wire as composing a pitfall or a mantrap or the like eo nomine. There is no assertion of wilful and wanton negligence which will authorize a recovery by an injured trespasser nor any facts alleged sufficient to demand the inference. There is no accusation that the defendants had knowledge of the actual presence of the child in the dangerous position. At most the petition merely charges constructive knowledge to anticipate the child's presence in the construction project which means nothing at all as the defendants had no duty to anticipate the presence of a trespasser. Thus the petition is totally deficient in every respect. Leach v. Inman, 63 Ga. App. 790, 793-794 ( 12 S.E.2d 103). Even if the petition alleged ordinary or simple negligence, it was subject to general demurrer; for this is a lesser degree of negligence than the law requires to enable a trespasser to recover. Leach v. Inman, supra.
The judgment of the trial court sustaining the defendants' general demurrers and dismissing the petition is affirmed.
Judgment affirmed. Jordan and Eberhardt, JJ., concur.