Opinion
No. 22535
Decided June 17, 1931.
Negligence — Injury from uninsulated high tension electric interurban line — Error to require election between negligence and wantonness — Charge to jury — Duty towards trespasser.
ERROR to the Court of Appeals of Seneca county.
This case comes to this court from the Court of Appeals of Seneca county. The original action was one for damages, brought for Maxwell Jurrus, an infant, by his next friend, Ella Jurrus, against the Toledo, Fostoria Findlay Electric Railway Company. The pleadings disclosed that the defendant company operated an electric trolley interurban line upon its own right of way immediately adjacent to and along the easterly side of the public highway leading into the city of Fostoria; that there was no fence or barrier separating the highway and the right of way of the defendant except a ditch five or six feet deep; that on the 6th day of May, 1928, and for a period of about six weeks prior thereto, the defendant maintained its power wire on this right of way, carrying an electric current of high voltage, at from eighteen inches to two feet above the ground, which wire came in contact with the said Maxwell Jurrus, causing him severe injuries from which he suffered damages. The injury occurred when he was crossing the right of way of the defendant in error, going from some woods toward the highway, following, as plaintiff in error claims, a path frequently used by the public, the existence of which the defendant in error denies. The boy appears to have taken hold of the wire, which was about eighteen inches or two feet above the ground, for the purpose of lifting the same to enable him to pass under and then continue on his way along or across defendant's right of way.
The pertinent parts of the amended petition are as follows:
"That said defendant carelessly, negligently, wilfully and wantonly constructed and maintained said power wire without any insulation thereon at said place and without having any guard or means of warning to plaintiff and other persons using the right of way and said pathway, so that said persons and plaintiff could and would not come in contact with said wire; that plaintiff did not know and had no means of knowing that said wire was charged with electricity at said time and all of which defendant knew or in the exercise of ordinary care should have known. * * *
"Plaintiff says that the carelessness, negligence, willfulness and wantonness of the defendant in maintaining said wire at said place charged with electricity of high voltage and amperage without any insulation thereon and at a distance of approximately eighteen (18) inches to two (2) feet above the ground and without having any guards or barriers or means of warning at said place resulted directly and proximately in injuries to plaintiff."
The answer of the defendant company, after admitting many of the allegations of the amended petition, as to the age of Maxwell Jurrus, the operation of its lines, and its location, avers:
"Said defendant says that on or about the 9th day of May, 1928, said plaintiff, while on the land and right-of-way of said defendant, was injured by coming in contact with an electric wire which was owned and controlled by defendant on its land and right-of-way; that the manner in which said injury occurred, and the nature and extent of said injury, is unknown to said defendant.
"Defendant denies each and every other allegation contained in said plaintiff's petition."
When the matter came on for trial, and before the impaneling of a jury, a motion was made by the defendant requiring the plaintiff to elect between the charge of negligence and that of wantonness. The trial court sustained the motion and the plaintiff elected to proceed on the ground of negligence.
The trial court charged:
"To enable the plaintiff to recover in this case or to entitle the plaintiff to recover in this case he must show by a preponderance of the evidence that he was on the premises of the defendant on the 9th day of May, 1928, as a licensee, not as a trespasser. If he was a trespasser and not a licensee, there is no liability on the part of the defendant and your verdict should be for the defendant. * * *
"If, while away from the traveled path, if there was such traveled path, he received the injuries for which he now seeks to recover in this action, then while so absent from the traveled path he was a trespasser on the company's right-of-way and the defendant company owed him no duty while so absent from the traveled path and your verdict in that event should be for the defendant. And of course, ladies and gentlemen, your verdict should be for the defendant if there was no such traveled path there as I have described, a clear, well defined pathway in which people were accustomed to travel."
The jury returned a general verdict in favor of the defendant. Error was prosecuted to the Court of Appeals, which affirmed the judgment of the court below. Error is now prosecuted to this court to reverse such judgment.
Messrs. Deeds Cole and Mr. Mark L. Leister, for plaintiff in error.
Messrs. Tyler, McMahon, Smith Wilson, Mr. J.S. Rhinefort and Mr. Rush Niles, for defendant in error.
The amended petition contains the averment that said defendant "carelessly, negligently, wilfully and wantonly" maintained an uninsulated wire eighteen inches to two feet above the ground on defendant's right of way and over and across said pathway for a distance of approximately one thousand feet in each direction from said path and said culvert.
The trial court required the plaintiff below to elect whether he would proceed upon negligence or wantonness. Electing to proceed upon negligence, the plaintiff was deprived of the privilege of going to the jury upon the question of whether the defendant was guilty of wantonness in the manner of maintaining its high-tension wire, which would be the basis of plaintiff's recovery if the boy was a trespasser; for even if he was a trespasser, the company owed him the duty not to wantonly injure him.
The charge confines the recovery, if any, to finding that the boy was strictly upon the so-called path as a licensee, and denies recovery if he was on the right of way outside the so-called path as a trespasser. While the amended petition avers the boy was a pedestrian on the path, yet if the plaintiff failed to prove the existence of the path he might still show he was on the defendant's right of way even as a trespasser, and the averments of the amended petition were sufficiently broad to allow a recovery as a trespasser if there was wantonness shown by the preponderance of the evidence in the manner of maintaining the wire on the defendant's right of way, which proximately caused the boy's injury.
The so-called two-issue rule was not applicable in the premises, for only one issue was submitted to the jury, to wit, the liability arising from simple negligence if the minor was a licensee. The other issue, that of wantonness, as claimed by the plaintiff in error to be shown by the circumstances and conditions surrounding the accident, and in the manner of maintaining its high-tension wire, applicable if the boy was only a trespasser, was not submitted to the jury.
For error in requiring the election and because of the instruction that if the boy was a trespasser the company owed him no duty, the judgments of the courts below are reversed and the cause remanded for further proceedings according to law.
Judgment reversed.
MARSHALL, C.J., MATTHIAS, DAY, ALLEN and ROBINSON, JJ., concur.