Opinion
Decided January 20, 1930.
Negligence — Boy electrocuted by high tension wire — Assumption of risk, contributory negligence, attractive nuisance, and trespasser — Directed verdict.
1. Negligence of power company which, having procured easement from landowner, erected poles in playground of tenant's son, who constructed foot climbers and climbed pole, held insufficient for jury.
2. On reviewing instructed verdict for defendant in negligence action, plaintiff's testimony must be given benefit of any reasonable inference.
3. Poles, wires, and cross-arms, where millions of poles are in use, cannot be said to be attractive even to children.
4. Thirteen year old boy becoming trespasser by climbing power pole held to have assumed risk.
5. Mere omission by power company, erecting poles near dwelling, to notify occupants that current had been turned on or to post warnings could not constitute "wanton and willful negligence."
ERROR: Court of Appeals for Knox county.
Mr. F.O. Levering, for plaintiff in error.
Mr. Henry C. Devin and Mr. J.R. Kistner, for defendant in error.
The parties in this proceeding in error occupy the same relative positions held in the trial court. The action is for damages for wrongful death, for the benefit of the next of kin.
At the conclusion of the plaintiff's testimony, the defendant, the Suburban Power Company, moved for an instructed verdict in its favor for the reason that no actionable negligence had been shown. This motion the court sustained, and a verdict was returned in favor of the defendant, and judgment entered thereon.
A motion for a new trial was then made by plaintiff, George Miller, administrator, and overruled. It is here claimed that the court erred in its ruling on the motion and in entering judgment on the verdict.
The admitted facts and evidence disclose that the company had erected a high-tension line, consisting of three aluminum wires or cables, from the village of Howard to and along the edge of the village of Millwood, and thence south, all in the county of Knox, to the village of Walhonding in Coshocton county. That part of the line from Millwood south, for a distance of one mile, was erected in the early fall of 1927, and ended on the bank of a stream, across which was located a sand company, which the defendant proposed to furnish with electric energy. The plaintiff is the father of the decedent, and since about 1905 has resided with his family on a small tract of land on the south bank of the river, upon which was located the terminus of the power line. This property belonged to one Elizabeth A. Jones. The plaintiff claims that he occupied these premises and the house thereon, as a lessee of the sand company, and that his wages as an employee of the sand company were so fixed that his rentals were paid therefrom. The sand company, at and prior to this time, was not in operation, and the plaintiff was working elsewhere.
After the line was built, and on the 14th day of September, 1927, the defendant company procured from the owner, Jones, a proper and sufficient easement for its right of way.
This line served the communities mentioned, and was a pole line. It appears that the members of the decedent's family knew it was a high-tension line and was to carry a high voltage. For the purpose of providing sufficient support for the spanning of the river, the defendant company caused to be erected two poles several feet apart on the premises, about thirty feet from the door of the plaintiff's dwelling, and about fourteen feet from an outbuilding, used by the decedent as a playhouse and summer sleeping quarters. The poles were about a foot in diameter at the ground and tapered upward to a height of twenty-eight to thirty feet, and were joined together at the tops by two parallel cross-arms, which extended two or three feet beyond and outside the poles. Three wires, or cables, were strung on the cross-arms, one at each end thereof, and one in the middle, between the poles. These wires were looped and connected in some fashion not clearly shown by the evidence. From the ground to the cross-arm braces the poles were perfectly smooth, with no steps, irons, or ladders of any kind.
It is not proven, but may be inferred from the testimony, that the decedent saw the defendant's employees climbing these or other poles with foot climbers and belt. It is charged, but not proven, that the defendant's employees saw the deceased climbing these and other poles and that they did not warn him of the danger incident thereto. The plaintiff had frequently seen his son climb other poles and trees, and had warned him of the danger of climbing, and had instructed him to cease doing so. An older sister of the boy had several times seen him climb these poles. It is conceded that the poles were erected in the boys' playground, that no warning sign, or signs, were placed on or at the poles, and that at the time of the accident complained of 11,000 volts were passing through the wires of this line. The plaintiff and his family had no knowledge that the current was turned on and that the wires were hot.
It seems that the boy had made some sort of a pair of foot climbers, and by means of these he did, on the 27th day of September, 1927, climb one of the poles, and was seen perched on the cross-arms; that he raised his arms, which came in contact with the looped wires, was electrocuted, and fell to the ground.
The decedent was a normal boy of thirteen years, well grown and strong for his age; was bright and active and a seventh grade pupil. It is further charged, and denied, and not proved, that the defendant was guilty of gross negligence in the construction of its line upon these two poles, unless the facts as related are sufficient to constitute gross negligence.
It is claimed by the plaintiff in error administrator that this case is one of those cases coming within the rule of an attractive nuisance, or an implied invitation, as applied to a dangerous device in a public place, due to the fact that these poles were erected in the dooryard and playground of the boy, which was a place where he had a right to be; and that the defendant in error was negligent and failed in its duty owing to him in not notifying him of the danger of climbing these poles, in not placing warnings thereon, and forbidding him to climb these poles, in placing them in his play yard, and in not advising him that the current had been turned into the wires; that its construction was faulty; and that its poles had been erected without the authority of the plaintiff, who individually was the lessee of the premises. On the other hand, it is the claim of the defendant company that its poles and wires were legally erected on the premises, and were not faulty in construction; that such did not constitute an attractive nuisance, and that the boy was a trespasser; that the company owed him no duty other than to refrain from a wanton and willful injury; and that the testimony in this case in no degree shows that it was negligent or failed in any duty owing to the boy.
The first question that naturally presents itself to this court is: Is this such a case as involves a question of contributory negligence, and, if so, is that the decisive question of this suit? If such be true, this court would quickly accede to the claim of the plaintiff in error that the trial court had erred in not submitting the issues to the jury. In order that this question may be correctly answered, it must necessarily be considered whether the defendant was in any way negligent, or whether it was derelict in any duty owing by it to the boy.
The facts show that the line was built to the plaintiff's tenements in the early fall, or some two months prior to the boy's death, without complaint on the part of the plaintiff lessee, or the lessor, Jones; that on the 14th day of September, 1927, the defendant procured from the lessor, Jones, a proper and sufficient right of way easement, and that thirteen days thereafter the lad was electrocuted. From these facts it must be concluded that at the time of the boy's death the defendant was rightfully in possession of that part of the plaintiff's dooryard upon which its poles were erected. It is equally true that the boy had a right to play within and upon his dooryard, which was his natural playground, and he therefore was not a trespasser therein. It therefore follows that the rule of law applicable in this case seems at first blush to lead us to the reason of an attractive dangerous device, left or constructed in a public place, as announced in Klingensmith v. Scioto Valley Traction Co., 18 Ohio App. 290, and De Groodt, Exrx., v. Skrbina, Admr., 111 Ohio St. 108, 144 N.E. 601, 38 A.L.R., 591, rather than to the rule found in Wheeling Lake Erie Rd. Co. v. Harvey, 77 Ohio St. 235, 83 N.E. 66, 19 L.R.A. (N.S.), 1136, 122 Am. St. Rep., 503, 11 Ann. Cas., 981; Hannan, Admr., v. Ehrlich, 102 Ohio St. 176, 131 N.E. 504, and Minick v. Windsor Brick Co., 30 Ohio App. 232, 164 N.E. 769, wherein the doctrine of the turntable cases was repudiated as an exception to the general rule that children of tender years may not trespass upon the property of another when the device or nature of the place is attractive and inviting to them.
We do not deny the reason and authority of the Klingensmith and De Groodt cases under the state of facts therein, but content ourselves with the assertion that the facts in the instant case are dissimilar in a marked degree. In this action, the defendant had no knowledge that this boy was climbing its poles; nor was it proved that the two poles and wires thereon had been constructed and maintained in a faulty manner. True, the testimony of the plaintiff in this instance must be given the benefit of any reasonable inference that might be drawn therefrom, but such an inference cannot be carried to an illogical conclusion that the company was negligent in its construction and maintenance, in the absence of a total lack of proof of that fact.
We have in mind the fact that boys are prone to climb and do daring things, without an understanding of the dangers incident thereto, and at a time not long distant a pole might have been attractive to a small boy; but we must now remember that there are approximately 85,000 miles of public roads in Ohio, and thousands of miles of city and village streets and ways, few of which do not carry pole lines of some description and kind, that millions of poles are now in use in this state, and that boys of thirteen years of age are few indeed who do not know that these wires and lines carry electricity in varying degree. So that it may now safely be said that poles, wires and cross-arms are not attractive, even to children, and are now, in fact, unattractive and unsightly, so as to cause search for a means to avoid their use. It will be remembered that the poles in question had no spikes or nails in them and no steps or ladders on them even for the convenience of the company's employees; and it seems to this court that it would indeed be presumptuous to assume that the defendant, or any reasonable man, could or should have anticipated that this boy or any lad would invent some form of foot-climbing device by means of which he might climb these poles.
The defendant's poles in this dooryard were its property, just the same as if it had erected thereon some structure. The boy had the right to be there, but while he had the right to be in the yard he had no right to get upon the poles, and in so doing he became a trespasser upon the property of the company, and, just the same as an adult, must be held to have assumed the risk incident thereto.
It is insisted that it was the duty of the defendant to have notified the plaintiff and his family that the current had been turned on, and that these wires were hot, and that a proper notice should have been posted on these poles, which would have notified this boy of the dangerous agency carried on these wires. We are not convinced of the soundness of these claims. The plaintiff and his family knew that this line had been completed, and that the villages along this line were being served or to be served. They knew this was a highly charged line. The boy had been warned by members of his family not to climb these particular poles. If these admonitions failed to deter this boy from climbing these poles, we are of the opinion that a posted notice would not have stopped him. Be that as it may, however, the fact that these notices were not given and posted could not be an omitted duty amounting to a negligent act that would be wanton and willful in character.
The defendant company did all in its power to place its wires out of the reach of this boy, and the public at large, locating them at the tops of smooth poles, twenty-eight to thirty feet in height, according to the present known practice, use and custom. Surely there must be some limit to the liabilities of parties lawfully conducting their business, both as to boys and others. A child is not licensed to go wherever he can find that which attracts him and thereby charge the duty of protecting him upon every other member of a community except his parents; and it is not logical or just that, in our anxiety to prevent personal injuries to children, which each of us personally regrets, we should go so far as to disregard the private and property rights of others.
We believe that the court in the case of Stansfield v. Chesapeake Potomac Telephone Co., 123 Md. 120, 91 A. 149, 151, 52 L.R.A. (N.S.), 1170, rightly states that "where, however, as in the present case, those engaged in the distribution of electric current have placed their wires above and beyond the sphere of peril to the public and to the occupants of neighboring premises, it would be subjecting them to an unduly strict responsibility to require them to provide against the possibility that their own appliances might be utilized by strangers as a means of access to the conditions which prove to be injurious."
We feel that the rule announced in this case is fully supported by reason and the modern authority herein previously cited. The rule is further approved in Simonton v. Citizens Electric Light Power Co., 28 Tex. Civ. App., 374, 67 S.W. 530; Graves v. Washington Water Power Co., 44 Wn. 675, 87 P. 956, 11 L.R.A. (N.S.), 452; Grube v. Mayor of Baltimore City, 132 Md. 355, 103 A. 948, L.R.A., 1918E, 1036; Howard v. St. Joseph Transmission Co., 316 Mo., 317, 289 S.W. 597, 49 A.L.R., 1034; State, ex rel. Kansas City Light Power Co., v. Trimble, 315 Mo., 32, 285 S.W. 455, 49 A.L.R., 1047; Mayfield Water Light Co. v. Webb's Admr., 129 Ky. 395, 33 Ky. Law Rep., 909, 111 S.W. 712, 18 L.R.A. (N.S.), 179, 130 Am. St. Rep., 469; and Lawrence v. Cleveland Electric Illuminating Co., 27 O.L.R., 307.
It is therefore the finding of this court that the defendant company was not negligent, nor did it owe a duty to this boy which it failed to discharge. It must follow that the judgment of the trial court is approved, and the cause affirmed.
Judgment affirmed.
LEMERT, P.J., and HOUCK, J., concur.