Baecher v. McFarland

• Decision Date: 06 September 1944
• Docket Number: Record No. 2805.
• Citation: 183 Va. 1
• Parties: M. ETTA BAECHER v. DANA ANN McFARLAND, AN INFANT, ETC.
• Court: Virginia Supreme Court

Page 1

183 Va. 1

M. ETTA BAECHER v. DANA ANN McFARLAND, AN INFANT, ETC.

Record No. 2805.

Supreme Court of Virginia, Staunton.

September 6, 1944.

Present, All the Justices.

1. NEGLIGENCE — Violation of Statute or Ordinance — Must Be Proximate Cause of Injury. — The violation of a statute or an ordinance does not make the violator guilty of negligence which will support a recovery for damages unless the violation is the proximate cause of the injury.

2. NEGLIGENCE — Violation of Statute or Ordinance — Causal Connection Question for Jury. — Whether or not there is a direct causal connection, other than the mere violation of a statute or ordinance, between the prohibited thing and the injury, is usually a question for the jury.

3. NEGLIGENCE — Violation of Ordinance — Use of Barbed Wire — Want of Direct Causal Connection — Case at Bar. — In the instant case, an action to recover for personal injuries, plaintiff, a child five years old, climbed up a fence which constituted the front enclosure for private property connected to a street by means of a private way, and along the top of which was strung three strands of barbed wire. In jumping from the fence, plaintiff came in contact with a barb of the wire which tore her face. Plaintiff relied upon two ordinances which provided that no barbed wire should be used for enclosing any lot within the city and that no barbed wire fence should be used along any public thoroughfare within the city.

Held: That direct causal connection between the presence of the barbed wire and the injury was lacking, since the fence with its barbed wire merely created a condition which had existed for many years and which plaintiff used, unwittingly, resulting in the accident.

4. NEGLIGENCE — Duty of Owner to Person on Premises — Barbed Wire Fence Not Dangerous Instrumentality. — A barbed wire fence or a fence with barbed wire strung over the top of it is not such a dangerous instrumentality as is a dynamite cap or a charged electric wire which by their very nature attract children and which are highly dangerous.

5. NEGLIGENCE — Duty of Owner to Person on Premises — Duty to Trespasser or Licensee. — The owner of property must not intentionally nor willfully injure a trespasser, or licensee, but he owes him the active duty of protection only after he knows of his danger, or might have known of it and avoided it by the use of ordinary care, and the rule applies as well to infants as to adults.

6. APPEAL AND ERROR — Reversal — Verdict Palpably Wrong. — Courts are just as obliged to set aside verdicts of juries where they are palpably wrong as they are to sustain them when they are justified by the evidence and the law.

Error to a judgment of the Circuit Court of the city of Norfolk. Hon. Allan R. Hanckel, judge presiding.

The opinion states the case.

James G. Martin & Son, for the plaintiff in error.

William G. Maupin, for the defendant in error.

BROWNING, J., delivered the opinion of the court.

This case grows out of an accident which happened on the sixth day of November, 1940 in the city of Norfolk, Virginia. Mrs. M. Etta Baecher, now deceased, owned a tract of land containing 25 acres which is adjacent to a suburban development called "Winona". Mrs. Baecher's home is located on this acreage. The entrance to her home is just off a street called Ashland Circle. The road to her premises is connected with this street and this was made possible by the purchase of a lot, which is now included in the 25 acres, a portion of which is taken up by the approach to Mrs. Baecher's entrance, which is a private way and which, at the time of the accident, was designated as "Baecher Road, Private".

The Baecher acreage is enclosed and where one enters it by the private road entended from Ashland Circle, there are two gates, a large one for vehicles and a small one for pedestrians. The gateways are built into and constitute a part of a front enclosure, called a "stock fence", which is constructed of wire four feet high and over the top are strung three strands of ordinary barbed wire. This fence had been standing for many years prior to the time of the accident. The barbed wire was made a part of it to protect the property and livestock thereon, particularly sheep, from the ravages of dogs. The posts put in the ground for the purpose of hanging the gate or gates, were supported by pieces of scantling attached to the fence and extending obliquely to the posts.

On the day mentioned, Dana Ann McFarland, a child five years and some months old, who was visiting her grandmother who lived very near the Baecher property and nearer the private entrance thereto, was attracted by a horse running loose on the Baecher acreage. She climbed up the fence by means of one of the stays or scantling supports, presumably that she might have a better view of the horse. Her grandmother had gone out in the backyard with her to do some chores and the weather being cold, called hurriedly to her little granddaughter to come along indoors with her. The little girl jumped and in some way, not made very clear by the evidence, she came in contact with a barb of the wire which tore an ugly scar in her face.

Suit was brought for the child against Mrs. Baecher alleging negligence in having and maintaining a dangerous instrumentality within reach of children, which would likely attract and injure them. A jury rendered a verdict in favor of the plaintiff for $500 which was confirmed by the court. The plaintiff, to further establish her case, introduced and relied upon two ordinances of the city of Norfolk, which are: Section 94:

"No barbed wire shall be used for enclosing any lot or lots within the city of Norfolk.

"A fine of $5 for each day shall be imposed for any violation of this section."

and Section 1215:

"No barbed wire fence shall be used along any public thoroughfare within the city."

We are of the opinion that neither of the ordinances applies to the situation presented. As to Section 1215, it seems plain from the photographs of the situation which were in evidence that the offending fence is not along any public thoroughfare within the city. It is urged by the plaintiff that the public used the unpaved and extended way from Ashland Circle to Mrs. Baecher's entrance and that such use was permitted and acquiesced in by the owner. But even so, we do not think that the premises come within the meaning and intendment of the statute. Much the same may be said as to the application of Section 94. Manifestly, it was never intended to apply to a case in which the owner constructed a fence wholly on his property, and not contiguous to that of any other land owner. As well say, that the owner of acreage which is included within the limits of the city cannot erect a wire pen for the enclosure and protection of animals and string over the enclosure strands of barbed wire. Surely there could be no such legal inhibition.

But if the ordinances did apply, it, in our opinion, would not be conclusive of the case. We have repeatedly held that the violation of a statute or an ordinance does not make the violator guilty of negligence which will support a recovery for damages unless the violation is the proximate cause of the injury.

See Bassett & Co. Wood, 146 Va. 654, 132 S.E. 700; Shoemaker Andrews, 154 Va. 170, 152 S.E. 370; Hubbard Murray, 173 Va. 448, 3 S.E.(2d) 397.

2-4 It is true that the court has said that, whether or not there is a direct causal connection, other than the mere violation of the ordinance, between the prohibited thing and the injury, is usually a question for the jury. Here, however the direct causal connection between the presence of the barbed wire and the injury is patently lacking. This case comes under the influence of the case of Crosswhite Southern R. Co., 181 Va. 40, 23 S.E.(2d) 777, where this quotation was approvingly cited:

"An employee cannot recover for a violation of the statutory duty to provide safety appliances, such as the Boiler Inspection Act requires, unless the failure to comply with the statute is a proximate cause of the accident which results in his injury; as it merely creates a condition or situation in which the accident happens from other causes, there is no liability. * * * Ford McAdoo, 231 N.Y. 155, 131 N.E. 874; Fredericks Erie R. Co., 36 F.(2d) 716; Anderson Baltimore, etc., R. Co., 89 F.(2d) 629.

To our minds the fence with its barbed wire merely created a condition or situation, which had existed for many years, which the child used, unwittingly, resulting in the accident. She was not an invitee, she was a trespasser. There is a line of cases decided by this court which involve the careless disposition of a bright, shiny thing, as a dynamite cap, or a charged electric wire which by their very nature attract children, and which are highly dangerous and one who is the cause of their presence, where they ought not to be, is liable for injuries to children on account of them. We think a barbed wire fence or a fence with a barbed wire strung over the top of it is not such an instrumentality.

The case of Lunsford Colonial Coal, etc., Co., 115 Va. 346, 79 S.E. 348, is very much in point. There the offending instrumentality was an electric wire which was strung along motor poles and used to supply light to the coal company's barn and one of its tenant houses. There was a motor track in front of the dwellings of persons who were in the employ of the company. There was some space between the dwellings and the motor track which the children of these families used for a playground. There was a pathway leading from the dwellings across the track to the post office and a commissary. In the opinion, this was said:

"Shortly before the casualty, which caused the child's death two days later, the wire broke at a point five feet from the path. The details of the accident may best be told in the language of an eye witness, Mrs. Farbush, who says: `I saw the little boy, the brother...