Bonniwell v. Milwaukee Light, Heat & Traction Co.

• Decision Date: 05 April 1921
• Citation: 182 N.W. 468,174 Wis. 1
• Parties: BONNIWELL v. MILWAUKEE LIGHT, HEAT & TRACTION CO.
• Court: Wisconsin Supreme Court

174 Wis. 1

182 N.W. 468

BONNIWELL

v.MILWAUKEE LIGHT, HEAT & TRACTION CO.

Supreme Court of Wisconsin.

April 5, 1921.

Appeal from Circuit Court, Waukesha County; Martin L. Lueck, Judge.

Action by Clarence F. Bonniwell, administrator, etc., against the Milwaukee Light, Heat & Traction Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

Action to recover damages for the death of plaintiff's minor son. Trial before a jury resulted in judgment for plaintiff upon a special verdict. Defendant appeals.

The deceased boy, Clarence F. Bonniwell, Jr., was about 11 years and 4 months of age at the time of the accident. He attended school and was in the third or fourth grade. The school was about 2 1/2 miles from Clarence's home, and about halfway between was the “Nashota” stop and shelter station on defendant's electric interurban line at a point where it was crossed by a road. It was in a farming district. Along the interurban right of way there was also placed defendant's high-tension transmission line, consisting of wires carrying 66,000 volts strung upon steel towers about 57 feet high constructed of uprights and cross braces. There were also the trolley wires and certain other wires supported by rows of ordinary wooden poles on either side of the tracks and about half as high as the towers.

Near this “Nashota” stop the line changed directions and there was a triangular field a few hundred feet in both dimensions lying on one side of the interurban tracks and in which were placed three of these towers. Each tower bore one sign in black letters on a red field, reading “Danger High Voltage.” Each had ladder steps on one corner starting about 8 1/2 feet from the ground. This piece of land belonged to defendant and was inclosed, with the tracts, by a woven wire fence with a strand of barbed wire on top. Entrance could be had to it, however, from the road crossing by passing over the cattle guards, and also from the adjacent roads at one or two points where there were holes in the fence large enough for boys to get through. There were one or two paths across the field from the tracks to these holes, worn by school children and others.

Clarence and other boys frequently walked on the tracks from and to school, and not infrequently played in this triangular field. Defendant's employees on passing cars had seen them there and had not ordered them off. The boys had also at times climbed the towers a few feet and performed gymnastic exercises upon the cross braces. There was no evidence, however, that any had climbed above the point where the ladder commenced or that any employee of defendant had ever seen boys on the towers. The boys understood that there was danger from wires higher up on the towers. Clarence had been warned of them by his father and other boys.

On the day of the accident Clarence with other boys had been given a ride from school to the neighborhood of this field. Here he and Edwin Pfister, a boy 12 years of age, got off to continue in the direction of their homes, while the other boys continued to ride in another direction. Somewhat aimlessly the two boys entered the field. The evidence differs as to whether they entered through a hole or over the cattle guards. What happened after this is described by Edwin alone. He testified that Clarence said the towers were not as high as their windmill, which he had climbed many times, and that he wanted to climb a tower. Edwin asked him not to do so, but he “shinned” up and pulled himself up by the cross braces to the ladder consisting of iron spikes or foot rests, and then climbed up further, circling the tower twice on the cross braces as he came to them on the way up. As he was making a circuit on some of the cross braces at about half the height of the tower he came near one of the wires strung on the wooden poles. The wire carried nominally 3,300 volts and came within 12 or 15 inches of the tower at one of the corners away from the ladder. To prevent arcing between it and the tower as it swung in the wind a piece of rubber tubing about 3 feet long had been placed about the wire at this place and wound with tape. This was defendant's customary method of preventing arcing at places where the wire came close to other objects. It did not afford safe insulation for a person to handle the wire, nor was it intended as such.

At this point Edwin testified that Clarence said, “Here is the feed wire, I guess.” Edwin asked him to come back or away from it, but he said, “It is padded.” Edwin said, “Even so, come back,” or, “Never mind the padding, come on back,” but Clarence took hold of it. He received a severe shock and burns from which he died four days later.

The jury by their special verdict found negligence on the part of defendant and that there was no contributory negligence. Judgment was rendered for the plaintiff.

Van Dyke, Shaw, Muskat & Van Dyke, of Milwaukee, for appellant.

Austin, Fehr, Mueller & Gehrz, of Milwaukee, for respondent.

JONES, J. (after stating the facts as above).

This is one of a class of cases which must always appeal strongly to the sympathy of every one cognizant of the facts. A bright, spirited boy, full of the buoyancy of youth, thoughtless of danger, undertakes a too hazardous venture and comes to his untimely death. We are confronted with the question whether upon the record and the facts proved the verdict can be sustained and the owner of the property on which the accident happened can be held responsible.

The grounds of negligence on the part of the defendant which are relied on are that the trolley poles, steel towers, and spikes or foot rests were attractive and alluring to children; that the fence was out of repair; that children had been allowed to play on the land of defendant and had loitered about the towers and poles as defendant knew; that one of the towers was within 100 feet from a pathway; that the high-tension wire which the boy touched was so strung upon the wooden poles that it passed within easy reach of the steel tower; that defendant had failed in its duty to so manage its current as to protect children, and to so construct and operate its towers and wires that it would be impossible for children of immature age to reach the wires; to use properly insulated wires; and generally to take such other precautions as would have been adequate to prevent the boy from coming in contact with the wires.

[1] The defendant was bound to use that degree of care which was reasonably adequate to meet and avoid the dangers which ought to be anticipated...