Summary
In Henry a thirteen-year-old boy had been admitted to the substation by his grandfather, the power company employee having it in "immediate charge," every day for five consecutive days. He died by electrocution on the fifth day when he brought his head into contact with a high voltage wire by climbing upon a concrete block three feet high.
Summary of this case from Mississippi Power Light Company v. NailOpinion
No. 30455.
March 27, 1933. Suggestion of Error Overruled May 8, 1933.
1. ELECTRICITY.
Corporations handling electricity must use highest degree of care which skill and foresight applicable to business can obtain.
2. ELECTRICITY.
One handling electricity must use highest degree of care in guarding third persons against danger in respect to agencies so far as danger is not too remote.
3. ELECTRICITY.
Electric company had duty to substantially fence transformer station and keep it guarded against admission of any except expert employees or those having business therein.
4. ELECTRICITY.
Caretaker of transformer station had duty to exclude all others, including grandson, and duty was nondelegable.
5. ELECTRICITY.
Negligence of electric power company, where caretaker of transformer station admitted his grandson within inclosure and he was electrocuted, held for jury.
6. ELECTRICITY.
That caretaker of electric transformer station told grandson not to touch appliances therein was insufficient to relieve employer of liability if appliance was attractive nuisance.
APPEAL from Circuit Court of Coahoma County.
Maynard, FitzGerald Venable, of Clarksdale, for appellant.
In this particular case appellee power company had placed its employee, West, in full custody, control and charge of the dangerous instrumentality, and the guarding of this instrumentality being a nondelegable duty, the said appellee is as fully liable for any acts of negligence on the part of its servant West as if it had fully authorized him to perform the acts which lead to the death of William Henry.
Where it is doubtful whether a servant in injuring a third person was acting within the scope of his authority, it has been said that the doubt will be resolved against the master because he set the servant in motion.
39 C.J., section 1472; Robards v. Bannon Sewer Pipe Co., 130 Ky. 380, 113 S.W. 429; South Covington, etc., R. Co. v. Cleveland (Ky.), 100 S.W. 283; Thompson on Negligence, sections 563 and 564; 18 R.C.L., Master Servant, section 254; St. Louis R. Co. v. Hendricks, 48 Ark. 177, 2 S.W. 783; Barmore v. Vicksburg R. Co., 85 Miss. 426, 38 So. 210; Sharp v. Erie R. Co., 184 N.Y. 100, 76 N.E. 923; Moon v. Matthews, 227 Pac. St. 488, 76 A. 219.
Where a servant has been placed in exclusive control or management of his master's premises, he has implied authority to invite or permit children to be on the master's premises.
39 C.J., section 1499.
The master is responsible for the negligent acts or omissions of his servants in the course of their employment, though unauthorized or even forbidden by him, and although outside of their line of duty, and without regard to their motives.
Barmore v. Vicksburg R. Co., 85 Miss. 426; Southern Cotton Oil Co. v. Anderson (Fla.), 86 So. 629.
The owner of a dangerous machine placed by him in the custody or control of an employee is liable for all damages resulting to others through its use by such employee whether the immediate object of such use is to benefit employer or employee.
Bobo Rad v. Dix, 162 N.Y.S. 992; Stone v. Sinclair Refining Co., 225 Mich. 344, 196 N.W. 339; 39 C.J., Master Servants, section 483; 18 R.C.L., Master Servant, section 249; Black v. Rock Island (La.), 51 So. 82; Wharton on Negligence, section 160; Alsever v. M. St. Louis R. Co. (Iowa), 56 L.R.A. 748.
The duty of those using dangerous instruments to observe the greatest care cannot be shifted to a servant in custody of them. That negligent acts of the servant in their custody becomes the act of master.
Pittsburgh Cinn. St. L.R.R. Co. v. Shields, 8 L.R.A. 464; Harriman v. Pitts. St. L.R. Co., 45 Ohio State 11; Clowdis v. Fresno Irrig. Co., 118 Cal. 315, 50 P. 373; Cameron v. Henyon Connell Commercial Co., 22 Mont. 312, 44 L.R.A. 508, 74 Am. St. Rep. 602, 56 P. 358; Carter v. Towne, 98 Mass. 567, 96 Am. Dec. 682; Thomas v. Winchester, 6 N.Y. 397.
An invitee is one who is expressly or impliedly invited on premises.
45 C.J., Negligence, section 219.
The duty not to injure an invitee extends to the negligence of not warning invitee of danger which is known or ought to be known to the owner or occupant of premises on which said danger is situated.
So. R.R. Co. v. Bates, 194 Ala. 78, 69 So. 131; Farmers v. Perry, 118 So. 406, 218 Ala. 223; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9; Fleichman Malting Co. v. Mrkacek, 14 F.2d 602; 45 C.J., Negligence, 237; Allen v. R.R. Co., 111 Miss. 267, 71 So. 386; 45 C.J., Negligence, section 248.
Failure to warn a child of danger constitutes negligence where the child is especially invited to enter into a dangerous situation.
45 C.J., Negligence, sections 305 and 307; 45 C.J., Negligence, section 221; Chalmers v. Kolb, 9 F.2d 924.
A person is a licensee where his entry or use of the premises is permitted by the owner or person in control thereof.
45 C.J., Negligence, 194.
The duty toward a licensee is not only to refrain from wilfully or wantonly injuring him, but also for enticing him into a dangerous place.
Parks v. N.Y. Tel. Co., 198 N.Y.S. 698, 201 N.Y.S. 930; Consolidated Lead Zinc Co. v. Carcoran (C.C.A. Okla.), 37 Fed. 2d 296; Ratliff v. Mexico Power Co., 203 S.W. 232; Herren v. Pender, 11 Q.B. Div. 503; Lepnick v. Gaddis, 72 Miss. 200; 20 R.C.L., Negligence, section 52; 45 C.J., Negligence, sections 207 and 208; Davidson v. Ottertail Power Co., 150 Minn. 446, 185 N.W. 644; Union News Co. v. Freeborn, 111 Ohio St. 105, 144 N.E. 595; Dublin Cotton Oil Co. v. Jarrard (Tex.), 40 S.W. 531, 42 S.W. 95; Barrett v. So. Pac. Co., 91 Cal. 296; Kimber v. Gas Ltd., 1 K.B. 439; Erickson v. Minn. St. Paul R.R. Co. (Minn.), 205 N.W. 889; Gunderson v. N.W. Elevator Co., 49 N.W. 694; Depue v. Flatau, 111 N.W. 1; 45 C.J., Negligence, section 307; 45 C.J., section 207; Shawnee v. Cheek (Okla.), 51 L.R.A. (N.S.) 672.
It may be stated as a general principle of law that one who has in his possession or under his control an instrumentality exceptionally dangerous in character is bound to take exceptional precautions to prevent an injury being done thereby.
20 R.C.L., Negligence, section 47.
The degree of care with reference to electricity is stated to be the "highest degree of care."
Cumberland Tel. Tel. v. Cosnahan, 105 Miss. 615; Porter v. Brookhaven, 95 Miss. 774; Templer v. McComb Elec. Co., 89 Miss. 1; 12 R.C.L. 52.
In our case, it was not necessary for appellee Power Company to anticipate the presence of William Henry, but his actual presence was known to them through their agent, West. Thus, certainly, if it be held in the attractive nuisance case that an owner should anticipate the presence of children and guard against injury to them, that where the owner, through its agent, is acquainted with their presence and actually brings them into the position of peril, that said owner owes said child a far greater duty of care.
McKay v. Vicksburg, 64 Miss. 777; Taylor v. McComb City, 89 Miss. 1; McDonald v. S.G. Gas Elec. Co. (La.), 136 So. 169; Davis v. Ohio Valley Banking Trust Co., 106 S.W. 843; Cook v. Houston Direct Nav. Co., 76 Tex. 353[ 76 Tex. 353], 13 S.W. 475; Lake Shore R.R. Co. v. Brown, 123 Ill. 162; McGee v. Missouri Pac. R.R. Co., 1 A.S.R. 706; International Railroad Co. v. Cook, 2 A.S.R. 521.
Green, Green Jackson, and A.M. Nelson, all of Jackson, of counsel for appellee; Edward W. Smith, of Clarksdale, and Sillers Roberts, of Rosedale, for appellee.
Permitting deceased within enclosure of substation was not within scope of employment of A.A. West.
American Ry. Express Co. v. Wright, 128 Miss. 593; Crawford v. Rice, 36 F.2d 199, (5th C.C.A.); Davis v. Price, 133 Miss. 236; Duree v. Wabash Ry. Co. et al., 241 Fed. 454; I.C. Railroad Co. v. Green, 130 Miss. 622; Lucas E. Moore Stave Co. v. Wells, 111 Miss. 796; Martin Bros. v. Murphree, 132 Miss. 509; Natchez C. N. Ry. Co. v. Boyd et al., 141 Miss. 593; Railway Co. v. McAfee, 71 Miss. 70; Southern Ry. Co. v. Garrett, 136 Miss. 219.
The appellee was guilty of no negligence which was the direct or proximate cause of the injury resulting in the death of decedent.
The sole proximate cause of the injury resulting in the death of the deceased was his own affirmative act, wholly unanticipated and in no wise contributed to by appellee.
Adams v. Bullock, 227 N.Y. 208, 125 N.E. 93; Belt v. Charters, 123 Ill. App. 322; Bonniwell v. Milwaukee Lt., Ht. Traction Co. (Wis.), 182 N.W. 468; Branan v. Winsatt, 298 Fed. 833; Blossom Oil Cotton Co. v. Potett, 114 Tex. 230; Bush v. Weed Lbr. Co., 63 Cal.App. 426; Bonhomie H.S. Ry. Co. v. Hinton, 155 Miss. 173; Chicas v. Foley Bros. Groc. Co., 73 Mont. 575; Chattanooga Warehouse Cold Storage Co. v. Anderson, 141 Tenn. 288; Devine v. Erie Co., 205 Ill. App. 550; Devost v. Twin State Gas Elec. Co. et al. (N.H.), 109 A. 839; Davis v. Malvern Lt. Power Co., 173 N.W. 262; Elie v. Loliston A. W. St. Ry., 112 Me. 178; Freeman v. Brooklyn Heights R. Co., 66 N.Y. Supp. 1052; Golson v. W.F. Covington Mfg. Co., 205 Ala. 226; Green v. West Penn. R. Co., 246 Pa. 340; Gavin v. O'Conner, 99 N.J. Law 162; Heinz v. N Y Cen. Rd. Co. (N.Y.), 188 App. Div. 178; Howell v. R.R. Co., 75 Miss. 242; Hyde v. Blumenthal, 136 Md. 445; Hardy v. Mo. Pac. Ry. Co., 226 Fed. 860; Heller v. N.Y., N.H. Hartford R. Co., 265 Fed. 182; I.C.R.R. Co. v. Bloodworth (Miss.), 145 So. 333; I.C.R.R. Co. v. Arnola, 78 Miss. 787; Johnston v. N.O. Thompson Houston Electric Co., 78 Neb. 24; John D. McCaffrey v. Concord Electric Co., 114 A. 397; Key West Elec. Co. v. Roberts, 89 So. 122; Keeron v. Spurgeon Merc. Co., 194 Iowa, 1240; Lunsford v. Colonial Coal Coke Co., 115 Va. 346; Lewko v. Krause Milling Co. (Wis.), 190 N.W. 924; L. N.R.R. Co. v. Daniels, 135 Miss. 33; Lavoie v. Nashua Gummed Coated Paper Co., 105 A. 4; Lucas v. Hammond, 150 Miss. 369; McCoy v. Texas Power Light Co., 229 S.W. 625; McCarthy v. N.Y.N.H. Hartford, 240 Fed. 602; Mayfield, Water Lt. Co. v. Webb, 129 Ky. 395; McAllister v. Jung, 112 Ill. App. 138; Myers v. Gulf Pub. Service Corp. (La.), 132 So. 416; N.Y.N.H. Hartford R. Co. v. Frutcher, 206 U.S. 139; Nichols v. Bell Tel. Co., 226 Pa. 463; O'Gara v. Philadelphia Elec. Co., 244 Pa. 159; Pioneer Co. v. Talley, 152 Ala. 162; Pioneer v. Raymond, 195 Cal. 126; Patorello v. Stone, 89 Conn. 296; Pilon v. East Hampton Gas Co., 248 Mass. 57; Parker v. Charlotte Elec. Co., 169 N.C. 68; Papich v. Chicago M. St. Ry. Co. (Iowa), 167 N.W. 686; Rumovick v. Scranton Elec. Co., 44 Pa. Sup. Ct. 582; Ramana v. Boston Elevated Ry. Co., 218 Mass. 76; Robins v. Minute Tapioca Co., etc. (Mass.), 128 N.E. 417; Roche v. N.Y. Edison Co., 84 Misc. 427; Robertson v. Y M.V.R.R. Co., 152 Miss. 333; Ridell v. West Jersey S.R. Co., 177 Fed. 374; Salter v. Dewessee Gammill Lbr. Co., 137 Miss. 229; Stark v. Muskegon, T. L. Co., 141 Mich. 575; Scanlon v. United Cigar Stores Co., 228 Mass. 481; Spence v. Polinsky Bros., etc. (Neb.), 193 N.W. 101; Sutton v. West Jersey S.R. Co., 78 N.J. Law 17; Southwest Cotton Co. v. Pope, 25 Ariz. 364; Thompson v. Alexander City Cotton Oil Mill Co., 190 Ala. 184; United Zinc Chemical Co. v. Van Britt et al., 258 U.S. 269; Wetherby v. Twin State Gas Elec. Co., 83 Vt. 189; Wilburn v. Charleston Cooperage Co., 127 Miss. 290; Woodlawn Gin Co. v. Moore, 103 Miss. 447; Y. M.V.R.R. Co. v. Smith, 111 Miss. 471; Y. M.V.R.R. Co. v. Mansfield (Miss.), 134 So. 577.
There was no question for the jury.
Sunflower Compress Co. v. Clark et al. (Miss.), 145 So. 617.
Argued orally by George F. Maynard, Jr., for appellant, and by Walter Sillers, Jr., and W.E. Smith, for appellee.
The appellee maintained near the town of Crenshaw a high-power electric transformer station, which station was in the immediate charge of A.A. West. Appellant's decedent was a boy about thirteen years old, was of average intelligence, was obedient and well-behaved, and was the grandson of the said A.A. West. During the week of August 2, 1931, the said child was on a week's visit to his said grandfather, and urged his grandfather to allow him to go within the inclosure of said transformer station and to spend the greater part of the time with his grandfather therein. This was acceded to by the grandfather, and from Tuesday until Saturday, when the child was killed, the grandson spent each day within the said inclosure with the permission as aforesaid of the grandfather.
But the grandfather cautioned the lad that the equipment within said station inclosure was highly dangerous, and he was ordered by his grandfather not to touch any of said machinery or equipment. The grandfather further testified that he thought it was entirely safe to permit the boy within the inclosure, because he supposed the boy fully understood the dangerous nature of the said transformer station, and, because of the obedient nature of the child, the grandfather did not anticipate that the child would in any way disobey him. It was part of the duties of the said grandfather as caretaker of said transformer station to read the meter at eight o'clock on each morning. On Saturday morning, when this hour arrived, the grandfather and the child were engaged in tending a bed of zinnias within the inclosure, and the grandfather went to read the meter, telling the child to remain where he was. In order to read the meter, it was necessary for the grandfather to insert his head within a box-like contrivance, during which time he, of course, could not see or keep watch upon the child. In a few moments after the grandfather had entered upon this task of reading the meter, there was an unusual noise or loud report, and it was then found that the boy had climbed upon a concrete block three feet high, and evidently had attempted to stand erect thereon, which brought his head within reach of an uninsulated wire carrying thirteen thousand volts, and that this wire had cut into the boy's head from the top of the head even to the mouth, and had destroyed the skull and some of the teeth, resulting, of course, in the immediate death of the child. Upon these facts a peremptory instruction was granted to the power company, and the administrator has appealed.
We think a peremptory instruction for the power company was erroneous, and, as a primary basis for our conclusion, we would refer to the fact that it is the settled law in this state that public utility corporations in handling and controlling the subtle and extremely dangerous agency of electricity shall be held to the highest degree of care which skill and foresight applicable to that business can obtain. Temple v. McComb City Electric Light Power Co., 89 Miss. 1, 42 So. 874, 11 L.R.A. (N.S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. 924; Potera v. Brookhaven, 95 Miss. 774, 49 So. 617; Cumberland Telephone Telegraph Co. v. Cosnahan, 105 Miss. 615, 62 So. 824; 20 C.J., p. 343. From this it follows, or rather runs concurrently with the general principle stated, that one who possesses or manages a dangerous article or agency such as electricity, explosives, and the like, must use the same degree of care and caution in guarding third persons against danger in respect to said articles or agencies so far as the said danger is not too remote, according to the usual experiences of mankind. 45 C.J. p. 845 et seq.
It was in obedience to this duty that the appellee power company fenced the said high-power electric substation in such a substantial manner that it would serve to exclude therefrom all persons except those who were entitled to enter therein, or those who by force and violence intruded. And thus again it follows that the keeper, Mr. West, was not within the proper exercise of any duty or authority when he admitted this child within this inclosure, within which were the dangerous appliances mentioned, nor was he acting in the exercise of any lawful discretion. On the contrary, since it was the duty of the utilities company to substantially fence this station and keep it locked or guarded against the admission therein of any except the company's expert employees or those who had an actual and definite business with the company to accomplish which it was reasonably necessary to admit them, it must follow, as a logical sequence, that it was the duty of the caretaker to exclude all others, including the decedent, and that his duty comes within the list of those which are denominated as nondelegable. This principle is established in this state by the case of Barmore v. Railway Co., 85 Miss. 426, 448, 449, 38 So. 210, 70 L.R.A. 627, 3 Ann. Cas. 594. See, also, 6 La Batt, Master and Servant (2 Ed.), section 2503.
The caretaker and employee, A.A. West, being in this respect the company itself, was therefore guilty of active negligence in admitting the child within the inclosure; and, although he told the child not to touch any of the machinery or appliances therein, this is not sufficient, if under proper instructions the jury should find that the said outfit comes within what is known as an attractive nuisance to a boy of the age of the decedent. These warnings or admonitions are not sufficient in respect to what are termed attractive and alluring nuisances as regards children of that age when the impulses of curiosity and adventure so strongly weigh in the control of their conduct. See, for instance, Callahan v. Eel River E.R. Co., 92 Cal. 89, 92, 28 P. 104; Gulf, C. S.F.R. Co. v. Chappel (Tex. Civ. App.), 201 S.W. 1037, 1039, 1040. At the same time, the child in this case may have been, although very young in age, of sufficient intelligence and specific understanding to have imputed to him the guilt of contributory negligence.
The judgment is therefore reversed, with directions to retry the case along the lines set forth in the last paragraph of this opinion, under proper instructions to the jury.
Reversed and remanded.