Chickering v. Lincoln County Power Co.

• Decision Date: 27 December 1919
• Citation: 108 A. 460
• Parties: CHICKERING v. LINCOLN COUNTY POWER CO.
• Court: Maine Supreme Court

108 A. 460

CHICKERING

v. LINCOLN COUNTY POWER CO.

Supreme Judicial Court of Maine.

Dec. 27, 1919.

Exceptions from Supreme Judicial Court, Lincoln County, at Law.

Action by Anelious O. Chickering, administrator, against the Lincoln County Power Company. On exceptions to an order overruling a demurrer to the declaration. Exceptions overruled.

Argued before CORNISH, C. J., and HANSON, PIIILBROOK, DUNN, MORRILL, and DEASY, JJ.

George A. Cowan, of Damariscotta, for plaintiff.

A. S. Littlefield, of Rockland, for defendant.

DUNN, J. This action was brought, under the provisions of Revised Statutes, c. 92, §§ 9 and 10, by the administrator of the estate of Alton A. Chickering, deceased, for the benefit of an only heir at law, to recover the pecuniary damages resulting from the immediate death of the intestate in consequence of alleged wrongful neglect of the defendant.

After setting forth plaintiff's appointment and qualification as administrator, and that he brought the suit for a statutory beneficiary, the substance of the declaration is that on May 23, 1918, for transmitting electricity at high voltage from its generating plant at Damariscotta Mills, the defendant owned and operated a line of posts and wires extending in and along a highway called the River road in Newcastle; that defendant "wrongfully, negligently, and carelessly maintained said wires, with no insulation whatever, or any other protection therefrom, along said highway and past the plaintiff's residence, situated on the east side of and adjoining said highway"; that said wires were "wrongfully, negligently, and carelessly strung from the cross-arms on the poles" among the branches of a shade tree in plaintiff's yard, "said wires being hidden from view by the foliage thereof, and being less than 16 feet from the ground"; that intestate, a minor of the age of 12 years, playing that day, as he was entitled to, about plaintiff's premises, where also intestate lived, climbed the tree where the wires were run, "and while in said tree said wires came in contact with his body, without fault on his own part, and he was electrocuted and instantly killed thereby." Other allegations of the declaration are not essentially important of recital at this time.

By interposing a general demurrer, the defendant confessed all the facts well pleaded by its opponent to be true; but, relying on some predicated defect of substance, by the rules of law arising on those facts, it denied that plaintiff stated a cause of action. In other words, defendant did not raise any question of fact. It raised an issue challenging legal vitality of the case. The question for review is whether demurrer properly was overruled.

Although the line of posts and wires was located in and along a public way, it was nevertheless, on the record before us, rightful property of the defendant. Granting that the poles and wires were legal structures, the owner would be liable only for carelessness or negligence in their erection or maintenance. R. S. c. 60, § 27.

It would be difficult, in an acceptable general rule, to set bounds to the extent to which ownership makes it possible for one to use his own property without incurring liability for injury to the person or property of another resulting from such use. The test is not whether the use caused injury, or whether injury was the natural consequence, but whether the use was a reasonable exercise of that dominion which the owner of property has, having regard to his own interests, the rights of others, and having, too, in view public policy. When a person attempts to do that which is useful, usual, or necessary, as well as lawful, if done under proper conditions, and injury unexpectedly results, it would be at variance with legal principles to say that he does it at the peril of being adjudged guilty of inexcusable wrong if it errs as to fitting manner of performing it. For the doing of an act without right a person may be adjudged guilty as a trespasser, but, if he had a right to do the act, the question of whether he reasonably exercised that right turns upon his negligence, within the latitude for discrimination or distinction which that form of action affords.

"Actionable negligence," said Whitehouse, J., in Boardman v. Creighton, 95 Me. at page 159, 49 Atl. 665, "arises from neglect to perform a legal duty." In the declaration under consideration there is absence of specific allegation of duty owed by defendant to plaintiff's intestate, and of breach of that duty, with resulting injury. It is good pleading in an action of tort, founded on a defendant's negligence, for the declaration to allege what duty was owing by the one to the other, together with the breach of that duty and the consequential injury. But a declaration would not be intrinsically bad for want of such specific averments. A plaintiff may make direct and positive averments of fact from which the law will imply the existence of duty, and by like averments he may show wherein the defendant left duty undischarged. "When it [the declaration] is founded on the obligation of law, unconnected with any contract between the parties, it is sufficient to state very concisely the circumstances which give rise to defendant's particular duty or liability." 1 Chitty on Pleadings, § 397. By direct averment a pleader must at least state facts from which the law will raise a duty, and show an omission of the duty, with injury in consequence thereof. 29 Cyc. 567. It is sufficient to allege facts in a general way which will give the defendant notice of the character of the proof that would be offered to support the plaintiff's case. There are many cases where, when certain facts are shown, a general allegation of negligence or want of care gives all the information needed. Sufficiency of the pleadings must be determined upon the facts from which the legal duty is deduced. Marvin Safe Co. v. Ward, 46 N. J. Law, 19, 23, citing Seymour v. Maddox, 16 Q. B. 326. Reasonable certainty in the statement of essential facts is required to the end that defendant may be informed as to what he is called upon to meet on the trial. Facts showing a legal duty, and the neglect thereof on the part of the defendant, and a resulting injury to the plaintiff, should be alleged. 29 Cyc. 565.

This declaration sets out conjoined acts of negligence, both of which may be true, and both of which, coalescing as a single act, may have caused the accident. Shorn of technical phraseology, plaintiff charges that defendant negligently had a dangerous wire wrongfully, carelessly, and negligently strung. In reply the theory of the doctrine of attractive nuisances, familiar in the turntable cases, has been discussed by counsel. That doctrine is that he who creates on his premises or leaves there a dangerous machine or thing alluring to children thereby impliedly invites children to endangering play; and, if they come, and he fail to exercise due precaution to protect them from injury resulting from their play, liability in damages for negligence attaches. This doctrine never has been adopted in Maine. McMinn v. Telephone Co., 113 Me. 519, 95 Atl. 210.

In the transmission of electricity high regard must be had to the safety of the public. It cannot be said as a matter of law that it is the duty of an electric company, regardless of where its line may be and as to whom injury may come, to insulate or otherwise extraordinarily guard wires strung, by virtue of a legal location, above the general sphere of hazard. This duty has been held to be limited to points where there is ground to apprehend that a reasonably prudent person may come in close proximity with the wires. Wetherby v. Twin State Co., 83 Vt. 189, 75 Atl. 8, 25 L. R. A. (N. S.) 1220, 21 Ann. Cas. 1092. In the case here it appears that defendant had a high-tension transmission line extending along the highway to and beyond the plaintiff's residence; the wires stretching between the branches of a shade tree in his yard. Intestate, while at play, climbed into the tree, and, as the immediate result of contact there with a naked wire, was instantly killed by an electric shock. Trees growing about a family home are not primarily for boys to play in. But by climbing a tree a boy would not altogether remove himself from the pale of the protection of the law. In constructing and maintaining a line for transmitting the subtle agency of electricity, no one may with impunity totally disregard the natural habits and the childish inclinations of boys at play to climb the dooryard shade trees. Human life is short enough, and its burdens and responsibilities come soon enough, at best. To take from boyhood the legitimate pleasures and adventures of tree climbing would unduly restrict the confines of that memory cherished domain, and lessen life's joys both there and thereafter.

As a general proposition, a person takes the risk of accident, or contributes negligently to his own injury, as the case and relation may be, only where he voluntarily exposes himself to a danger of the existence of which he knows, or, in the exercise of that...