Blavatt v. Union Electric Light & Power Co.

• Decision Date: 17 May 1934
• Docket Number: 31860
• Parties: Mathew Blavatt and Agnes Blavatt, Appellants, v. Union Electric Light & Power Company, a Corporation
• Court: Missouri Supreme Court

71 S.W.2d 736

335 Mo. 151

Mathew Blavatt and Agnes Blavatt, Appellants, v. Union Electric Light & Power Company, a Corporation

No. 31860

Supreme Court of Missouri

May 17, 1934

Appeal from Circuit Court of City of St. Louis; Hon. Albert D Nortoni, Judge.

Affirmed.

Lemen Field & Vogel for appellants.

(1) Defendant created and maintained on its premises artificial conditions likely to cause death or serious injuries to trespassers and which it had reason to believe such trespassers would not discover and defendant knew, or should have known that children using the adjoining lot as a playground were constantly trespassing upon defendant's wall and premises and defendant is liable for the injuries caused by the artificial condition thus created and maintained. Restatement of the Law of Torts (Tentative Draft No. 4) Secs. 205, 209; Smith v. Southwest Mo. Railroad Co., 62 S.W.2d 763; Clark v. Longview Pub. Serv Co., 143 Wash. 319, 255 P. 380; Consolidated Lead & Zinc Co. v. Corcoran, 37 F.2d 296; Costanga v. Pittsburgh Coal Co., 276 Pa. 90, 119 A. 819; Union, etc., Co. v. Lunsford, 189 Ky. 785, 225 S.W. 741; Coy v. Columbus, etc., Electric Co., 181 N.E. 131; Haywood v. South Hill Mfg. Co., 142 Va. 761, 128 S.E. 362, 17 A. L. R. 845; Graham v. Sand Hill Power Co., 189 N.C. 381, 127 S.E. 429; Followill v. Kansas, etc., Power Co., 113 Kas. 290, 214 P. 430; Romana v. Boston Elevated Co., 105 N.E. 598. (2) Defendant, being a dealer in electricity was under a duty to exercise the highest degree of care to so operate its business as to prevent injuries to others. Foster v. Ry. Co., 325 Mo. 18; Godfrey v. K. C. L. & P. Co., 299 Mo. 472; Williams v. Springfield G. & E. Co., 274 Mo. 1; Shannon v. K. C. L. & P. Co., 315 Mo. 1136; Kribs v. Jefferson City Light Co., 199 S.W. 261. (3) The presence of plaintiff and other trespassers on defendant's property was reasonably to be anticipated; the sending of current through the high-tension wires intermittently was an affirmative act. Under the circumstances, it was negligence for the defendant to send current through the high-tension wires, for which it is liable in damages. Kostanza v. Pittsburg Coal Co., 276 Pa. 90, 119 A. 819; Schaaf v. Basket & Box Co., 151 Mo.App. 35; Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720.

Theodore Rassieur, George M. Rassieur and John P. McCammon, Jr., for respondent.

(1) Deceased was admittedly a trespasser, and respondent's sole duty to him was not to injure him willfully or wantonly. Kelly v. Benas, 217 Mo. 13; Sullivan v. Railroad Co., 31 N.E. 128; Railroad Co. v. Frutcher, 260 U.S. 141, 67 L.Ed. 173; Brown v. Am. Mfg. Co., 209 A.D. 621, 205 N.Y.S. 331; Bonniwell v. Milwaukee, etc., Co., 174 Wis. 1, 182 N.W. 468; Hynes v. Railroad Co., 188 A.D. 178, 176 N.Y.S. 795; Hafey v. Dwight Mfg. Co., 133 N.E. 107; Robbins v. Minute Tapioca Co., 128 N.E. 417; Devost v. Twin State G. & E. Co., 109 A. 839; Howard v. St. Joseph Transmission Co., 316 Mo. 317, 289 S.W. 597. (2) The enclosure of respondent and the machinery and equipment therein contained were not of such character as to attract children or encourage trespassing, and, in any event, respondent's full duty was no more than to refrain from willful or wanton injury. Cases cited under Point 1, supra; 17 A. L. R. 853.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Plaintiffs appeal from an order of the circuit court, city of St. Louis, sustaining defendant's demurrer to the evidence. Plaintiffs sued for $ 10,000 damages for the death of their son, Alfred Blavatt, then fifteen years of age, who died from injuries sustained by him on May 27, 1930 when he came in contact with certain high-tension wires.

The amended petition alleged in substance that the defendant owned and maintained a substation, located at 4209 Newstead Avenue in the city of St. Louis, containing a large number of wires carrying a high voltage of electricity and known as high-tension electric wires. The petition further alleged that immediately adjoining the substation was a lot, used by children generally as a place of recreation, including ball games, of which defendant knew or should have known, and further that the children in the course of their games were likely to come in close proximity to and in contact with defendant's high-tension wires, of all of which defendant knew, or by the exercise of ordinary care should have known, and charged that defendants negligently and carelessly failed to fence or otherwise guard these premises, and high-tension wires, and negligently and carelessly maintained the station and wires, without employing any attendant or guard, and that as a direct result of defendant's negligence, plaintiff's son came in contact with the electric wires on May 27, 1930, and received burns from which he died. The amended answer admitted the ownership and maintenance of the station, including the high-tension wires, but denied the other allegations of the amended petition and pleaded contributory negligence.

The evidence on the part of plaintiffs tended to show that defendant's substation which fronted on Newstead Avenue was immediately north of and adjoined church property which was located on the northwest corner of Newstead and Penrose Avenues. When defendant's substation was first erected, the lot back of the substation building was used by children for ball games. Later defendant erected a transformer and placed high-tension wires on the lot in the rear of its building and built a brick wall around the lot. The wall was approximately seven to ten feet high, eighteen inches thick and had an entrance with two iron doors, in the alley in the rear of the property. These doors were fastened to the wall with iron hinges, each door having two or three hinges. Inside of and next to the wall and near the top of it was an iron cat walk which was intended for the use of defendant's employees whose duties might require them to work about the transformer and the wires. There were signs on the gates and on the wall, upon which the boy was killed, reading, "Danger! High Voltage. Keep Out!" Alfred Blavatt could read. He was in the eighth grade of a public school.

The only entry provided to the enclosure was through the gates at the rear and through the building at the front. Both the gates and the front entries were always kept locked. The presence of employees of defendant was not necessary to the operation of its substation, and its employees were never seen there except that, when a transformer blew, an emergency or trouble crew went there. So far as the record shows, defendant did not at any time receive either knowledge or notice that any boys had trespassed on its property.

The lot in the rear of the church and immediately south of defendant's premises was unfenced. For at least a year and a half before plaintiffs' son was injured, this lot was used by boys in the neighborhood for playing various games, including handball. In playing handball, the boys would use the brick wall as a backstop, hitting the ball against the wall. When the ball would go over the wall into defendant's property, the boys would go over the wall after it. They would get on the wall by climbing up the gate on the hinges and then walking along the top of the wall.

The testimony of actual trespasses committed showed (1) Joseph Kearney, number of times not shown; first time about two and one-half months prior to the accident. (2) Marlin Obermark, five times, period not shown; (3) James Kearney, the day of the accident, just prior to the accident; (4) Charles Manion, five times in one and one-half years; (5) Jack Moenster, three or four times, period not shown.

Alfred Blavatt was injured on a Tuesday. On the previous Saturday, members of the church, whose property adjoined defendant's property on the south, built a wooden handball backstop on their own premises and close to the brick wall of the defendant. The members of the church made no objection to the use of this wooden backstop by the boys in the neighborhood, and these boys played on the following Sunday, Monday and on Tuesday until plaintiffs' son was injured. In playing handball, the ball is thrown against the backstop. When it comes back it bounces, and the object of the game is to hit it and so return it against the backstop on the first bounce. At the time that Alfred Blavatt was injured, five boys were on the lot. They had started playing about four o'clock and Blavatt was injured about three quarters of an hour later. As only four of the boys could play at a time, the fifth member of the group took a position on defendant's wall, to recover balls which went over the brick fence. Alfred Blavatt was on the wall for this purpose when the members of the group playing handball noticed a flash and heard a sound and discovered Alfred Blavatt lying on the wall near the backstop with his head towards the church property. His feet were on the cat walk inside defendant's property. He was removed by a district fire chief and taken to a hospital, where he died.

It is admitted that Alfred Blavatt was a trespasser on defendant's property when he received the shock and burns which caused his death. The law as to trespassers is as stated in Kelly v. Benas, 217 Mo. 1, 116 S.W. 557, l. c. 559, the rules being thus stated (116 S.W. l. c. 559):

"One applicable general rule of law is that there must be a duty raised by the law and breached by defendant before an action for negligence lies. Another is that the landowner or occupant owes no duty to trespassers or volunteers, going upon his land for their own purpose, to maintain it in any particular condition for their benefit. [Sweeney v. Old Colony Railroad (Mass.), 10 Allen, l. c. 372, 87 Am Dec. 644; Staub v. Soderer, 53 Mo. 38.] ...