Connell v. Keokuk Elec. Ry. & Power Co.
| Decision Date | 16 October 1906 |
| Citation | 109 N.W. 177,131 Iowa 622 |
| Parties | SAMUEL CONNELL, Administrator of the Estate of William Connell, Deceased, v. THE KEOKUK ELECTRIC RAILWAY & POWER CO., Appellant |
| Court | Iowa Supreme Court |
Appeal from Lee District Court.--HON. HENRY BANK, JR., Judge.
ACTION to recover damages caused to the estate of William Connell deceased, by reason of his death, alleged to have been due to his coming in contact with a wire, which was being used and maintained by the defendant for the transmission of electricity for power and lighting purposes, charged with a very high and dangerous voltage, and negligently allowed by defendant to be without insulation at the place where the accident occurred, and to sag so low at that place that persons were likely to come in contact with it. Upon the issues arising by a denial of the material allegations of the petition, there was a trial to a jury, and verdict for plaintiff. Defendant's motion for judgment notwithstanding the verdict on the special findings of the jury having been overruled, and judgment entered on the verdict for plaintiff, defendant appeals.
Affirmed.
Hollingsworth & Blood, for appellant.
Hughes & Sawyer, for appellee.
The facts which the evidence tended to establish, so far as material for the determination of the errors relied upon, are as follows: The scene of the accident was an uninclosed and unimproved tract of rough land, covered with trees, brush and weeds, belonging to one Hubinger, constituting a portion of the premises occupied by him as a residence, and extending from a fence or wall, which constituted the boundary between the improved and the unimproved portions of his tract, to the river. Over this portion of Hubinger's property, the defendant was maintaining its electric light and power wires supported on poles, the wires being in general insulated. Deceased, a boy of fourteen years of age, with two companions a few years older, went upon this uninclosed and unimproved portion of Hubinger's premises to get some zinc which had been thrown away, in order that they might sell it for junk. Deceased in some way came in contact with defendant's wire where it had been allowed to sag and where the insulation had been worn off, apparently by contact with a tree, and was instantly killed by the shock. The evidence tended to show that there were some paths running in various directions across this unimproved portion of Hubinger's property, along which persons were in the habit of passing. It may fairly be said to have been a question for the jury, under the evidence, whether Hubinger had to such an extent forbidden and tried to prevent people crossing there as that deceased and his companions going on the land without express permission were to be considered trespassers, or whether they were bare licensees, or licensees by implied invitation. It is not contended that deceased and his companions had been directly forbidden to come upon the premises. The assigned errors argued for appellant relate to certain special findings of the jury bearing on the questions whether deceased was so far a trespasser and without right at the place where the accident occurred that the defendant owed him no duty, and whether there is any evidence that the negligence of the defendant in allowing its wire to sag and become uninsulated at the place of the accident was the proximate cause of decedent's death.
The evidence tended to show that the portion of Hubinger's premises on which the accident occurred was so far generally used by the public that the defendant was bound to anticipate danger to some one from allowing its wire without proper insulation to sag so that persons thus using the premises were in danger of coming in contact with it and receiving injury, and the court instructed the jury that, if it was found from a preponderance of the evidence that the place where the injury occurred was so resorted to by persons generally, of which fact defendant's servants had knowledge or should have had knowledge under the circumstances, then it was the duty of defendant through its servants to exercise ordinary care and diligence to prevent such danger, and the failure to exercise such care and diligence would constitute negligence on the part of the defendant. As to the correctness of this instruction or the sufficiency of the evidence to support a verdict based on the negligence of the defendant, no complaint is made. But it is contended for appellant that in answers to interrogatories submitted to them the jury specially found deceased to have been on the premises without right. These findings so far as material to this question were as follows:
Int. 8. Did William Connell have the consent of the owner or occupant of the land where the alleged injury occurred, to go upon said land at said time? A. No. Int. 9. Was William Connell at the time and place of said accident on premises where he had a right to be? A. No. . . . Int. 11. Did J. C. Hubinger prior to, and including the time of, the accident forbid persons from entering upon the land where the alleged injury occurred? A. Yes. . . . Int. 14. Was the place where the alleged injury occurred public or private at said time? A. Private. Int. 15. Was William Connell invited to go upon said land at the place where said injury occurred at the time of same? A. No.
In determining the legal effect of these findings, it is proper to take into consideration the instructions in which the jury were told, after being properly instructed with reference to defendant's negligence as already indicated, that a trespasser is one who enters upon the land of another without the consent, either express or implied, of the owner or occupier thereof, but persons entering such land with the implied consent of the owner or occupier would not be regarded as trespassers; that if the public generally went upon the premises in question without objection on the part of the owner, and this was generally known, then persons entering upon such premises could not be regarded as trespassers or wrongdoers, by merely so entering; that, if it should be found that Hubinger forbade people entering upon his premises, then persons entering against his objection must be regarded as trespassers; and that, if deceased knew that he was going upon said premises against the objections of the said Hubinger, he was a trespasser at the time and place of the injury, and plaintiff could not recover.
It is to be noticed that there is no direct finding as to whether or not deceased was a trespasser under these instructions and perhaps the finding that deceased did not have the consent of the owner or occupant to go upon the land, that Hubinger had forbidden persons from going there, and that the premises were private, would not conclusively show that deceased was a trespasser, for there is no specific finding as to implied consent. Under the evidence the jury might have found that, while Hubinger in some instances forbade people coming upon the premises, the practice of crossing without express permission but without specific objection was so...
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