Butler v. Brogdon, 40753
| Decision Date | 09 September 1964 |
| Docket Number | No. 40753,No. 3,40753,3 |
| Citation | 110 Ga.App. 352,138 S.E.2d 604 |
| Parties | J. H. BUTLER, Jr., by Next Friend, v. J. C. BROGDON, Jr., et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. (a) The six year old child when injured was a trespasser.
(b) No affirmative duty is owed by the owner or proprietor of land to a trespasser (1) to anticipate his presence or (2) to keep the premises up to any given standard of safety.
(c) A negative duty exists on the owner or proprietor not to prepare pitfalls or mantraps for a trespasser nor otherwise to injure him wilfully or wantonly.
The petition of James H. Butler, Jr., a child six years old, by next friend, asserts that the defendants as building contractors were jointly engaged in constructing a dwelling in the City of East Point in which young Butler was injured by contacting an uninsulated live electric wire in the dwelling's basement. It is alleged that the defendants had connected and installed the electrically charged wire and were making use of it in the construction project. A portion of this wire was 'exposed, unwrapped, raw, bare and without insulation.' The defendants negligently and carelessly maintained the wire which constituted 'an inherently dangerous condition, which fact was known, or in the exercise of ordinary care, could have been known to the defendants.' 'On Sunday, June 3, 1962, at about 11:00 o'clock A.M., your petitioner, a minor of tender years, being only six years of age, was playing in and about said dwelling.' 'That your petitioner jumped from the front door area of said dwelling into the basement' where his right hand came in contact with the uninsulated wire severely burning and injuring him in stated particulars. 'The petitioner, being a child of the tender age of six years, did not know of, and could not appreciate or anticipate the existence of said inherently dangerous condition.' 'That the defendants knew, or in the exercise of ordinary care, should have known that children of tender years, including your petitioner, would come upon the said premises where said dangerous exposed electric wire or wires were being maintained by them.' 'That the defendants were negligent in the following particulars: (1) In creating said inherently dangerous and hazardous conditions; (2) In using said wire or wires which were exposed, unwrapped, raw, bare, and uninsulated, transmitting electricity; (3) In allowing said dangerous condition to exist; (4) In failing to cut off or shut off the flow of electricity into said basement and leaving said wire or wires unguarded and unattended; (5) In leaving said dangerous wire or wires in a position which exposed your petitioner to danger, which was unknown to him; (6) In leaving said dwelling open to your petitioner while dangerous condition existed; (7) In failing to warn your petitioner of said inherently dangerous condition.'
The trial judge sustained the defendants' general demurrers and dismissed the petition. Exceptions are brought to that judgment.
Claud F. Brackett, Jr., Atlanta, for plaintiff in error.
Smith, Ringel, Martin, Ansley & Carr, H. A. Stephens, Jr., Ralph H. Witt, Gambrell, Harlan, Russell, Moye & Richardson, E. Smythe Gambrell, Edward W. Killorin, Atlanta, for defendant in error.
This case does not rest on the 'turn-table' or 'attractive nuisance' doctrine for there is nothing in the petition charging the injury producing dangerous instrumentality as something within the ambit 'of actual and compelling attraction for children.' Martin v. Seaboard Air Line R. Co., 101 Ga.App. 819, 821-822, 115 S.E.2d 248, 251. In consequence the case must be controlled solely by the general rules applying to trespassers.
Here the child for whose injuries suit is brought is only six years old. Yet the petition shows conclusively that the child when...
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...one of defendant's sagging wires, receiving severe burns. Again the sustaining of a general demurrer was affirmed. In Butler v. Brogdon, 110 Ga.App. 352, 138 S.E.2d 604, a six-year-old child went upon premises where a building operation was in progress and was burned by a raw, bare, uninsul......
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