Cox v. Des Moines Elec. Light Co.
| Decision Date | 18 February 1930 |
| Docket Number | No. 39564.,39564. |
| Citation | 209 Iowa 931,229 N.W. 244 |
| Parties | COX v. DES MOINES ELECTRIC LIGHT CO. ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Dallas County; J. H. Applegate, Judge.
Action to recover damages resulting from the death of a minor child, alleged to have been due to the negligence of the defendants. At the conclusion of the evidence, the Court sustained a motion to direct a verdict for the defendants, and plaintiff appeals. Affirmed.Holly & Holly, of Des Moines, and Harry Wifvat, of Perry, for appellant.
Bradshaw, Schenk & Fowler, of Des Moines, and White & Clarke, of Adel, for appellees.
On June 30, 1926, Howard V. Wilson, nine years of age, met his death by reason of coming in contact with, or in close proximity to, a wire charged with 6,600 volts of electricity. The plaintiff, administratrix, brings this action to recover damages against the electric light company, and two of the employees of said company.
[1] At the close of the evidence, the court sustained the motion of defendants for a directed verdict, which challenges the sufficiency of the evidence upon the question of the negligence of the defendants. For the determination of this question, it will be necessary to refer somewhat in detail to the evidence.
Some years ago the De Soto Brick & Tile Company began the operation of a brick and tile manufacturing plant in the town of De Soto. There was constructed upon the real estate owned and operated by said company a water tank which is 16 feet in diameter and 10 feet 10 inches in height. This tank was constructed of hollow tile, each tile being 12 inches long, 5 inches wide, and 8 inches thick, and laid so that the 8–inch surface is exposed. The mortar between the layers is a little over a half inch thick. There was a sort of cornice at the upper edge of the wall, made by three tiers of brick, and arranged so that the lower tier extended outward beyond the upper row of hollow tile 2 or 2 1/2 inches, and each of the two upper rows extending the same distance farther out from the row of brick immediately thereunder. The tank is in circular form, and the outer surface is perpendicular from the ground up to the first row of brick hereinbefore mentioned. For the purpose of carrying away the excess water, an overflow pipe (argued by both parties to be 1 1/4 inches in diameter) was attached at the top of the tank, and extended down into the ground. The distance between the overflow pipe and the perpendicular wall of the tank is 8 inches.
In 1920, the defendant, electric light company, obtained the consent of the brick and tile company to place on the top of said water tank two transformers, one for the purpose of “stepping down” the voltage for use in the brick and tile company, and the other for the supply of electricity in the town of De Soto. These transformers were of standard construction, about 4 feet in height. Approaching the transformer from the line of the light company was a current of electricity of 6,600 voltage; at a point from 5 1/2 to 6 feet from the ground there are attached to the overflow pipe two small wires, in no way charged with electricity, and which served as ground wires for the transformer installation. No claim is made that these wires were in any way accountable for the injury to the boy. For some time prior to the time of the injury, the brick and tile company had ceased operation, and, at the time in question, its property was in the possession of the state superintendent of banking. After the cessation of operations of the brick and tile company, the transformer used for the supply of electrical current for said company was disconnected.
In addition to the water tank, there was situated on the brick and tile company's grounds an office, a main building, and other property, such as is usually convenient and necessary for the business of such a concern. There is an unimproved roadway which runs about 10 feet west of the aforesaid tank. There is a road running in the opposite direction south of the tank about 50 feet distant; from 6 to 10 feet from the tank there is a well and pump. Various parties procured water for family use at said well, and no objection to the same was ever made. At times, various boys played on the grounds of the brick and tile company––with little cars on the tracks theretofore used––and “Hide and go seek” in and around the buildings. In connection with the buildings thereon situated, wild pigeons and sparrows found a harboring place, and they and their nests became objects of interest to the boys. There was no warning or danger sign relative to the high voltage of the electricity entering the transformer.
Prior to the time in question, no child had ventured upon the tank into the place of danger. On the 30th day of June, 1926, his older brother was at the well near the tank, when this boy, then nine years of age, approached. In the top tier of the block construction, about a foot and a half from the overflow pipe, was a tile, which in some manner had been broken, and in it a sparrow had constructed its nest. The boy spied the nest and started to get it––seized the overflow pipe, and, either by shinning or by placing his feet against the wall, with his hands clasped to the pipe, made the ascent to the top of the tank, and then reached downward in an effort to get the nest. His older brother said to him: The boy arose and started in the direction of the pole carrying the heavily charged electrical current, and the back of his head, neck, and shoulders either came in contact with, or in close proximity to, the heavily charged wire, and, as a result thereof, met his immediate death by electrocution. These are the important facts, as disclosed by the record.
[2] The question presented by the court's ruling on the motion for a directed verdict, in favor of the defendant, is whether the evidence is sufficient to support a finding by the jury that the defendants, in the exercise of ordinary care, in the light of the surrounding circumstances, should have reasonably anticipated that a boy would probably climb the overflow pipe connected with the water tank (with no inviting or ready means of ascent) and expose himself to danger from contact with electric wires from 13 to 14 feet above the ground.
In its strictest sense, this is not an “attractive nuisance” case, although the factors which are given prominence in such cases are pertinent here.
Since the transformer and the electric line connected therewith, by permission of the brick and tile company, were located upon its land, the boy, at the time in question, was not a trespasser in so far as the defendants are concerned. See Lipovac v. Iowa Railway & Light Co., 202 Iowa, 517, 210 N. W. 573.
[3] Negligence is the doing of something which an ordinarily careful and prudent person, under the same circumstances, would not do, or the failure to do something which an ordinarily careful and prudent person, under the same circumstances, would do. The care exercised by an ordinarily careful and prudent person is in proportion to the apparent danger involved. While one must exercise ordinary care in handling and controlling a dangerous agency or instrumentality, yet he is not an insurer as against injuries befalling others coming in contact therewith. If, under the circumstances of the case, one has no reason to believe or anticipate that another will probably come in contact with the dangerous agency, then he cannot be said to be guilty of negligence.
The appellant's contention is that the sparrow's nest was an attractive feature for the boyish instincts, and that the dangerous instrumentality was in close proximity, and that, because of the sparrow's nest, the defendant should have reasonably anticipated injury such as befell the boy at the time in question. There is no evidence of actual knowledge by the defendants of the sparrow's nest.
The counsel for the respective parties, with commendable diligence, have ably and fully briefed their respective contentions, and have cited may authorities in this and other jurisdictions bearing upon the legal question presented. To analyze and comment upon the many authorities cited would constitute a volume.
Our latest pronouncement upon this proposition is McKiddy v. Des Moines Electric Co., 202 Iowa, 225, 206 N. W. 815, wherein we declared that the application of the doctrine of the “attractive nuisance” cases will depend upon the particular facts of each case, and that no hard and fast rule of liability or nonliability can be fixed in this regard.
In support of her contention, appellant cites and relies upon the following cases: Edgington v. Burlington, Cedar Rapids & Northern Railway Co., 116 Iowa, 410, 90 N. W. 95, 57 L. R. A. 561;McKiddy v. Des Moines Electric Co., 202 Iowa, 225, 206 N. W. 815;Connell, Administrator, v. Keokuk Electric Railway & Power Co., 131 Iowa, 622, 109 N. W. 177;Consolidated Electric Light & Power Co. v. Healy, 65 Kan. 798, 70 P. 884;Talkington v. Washington Water Power Co., 96 Wash. 386, 165 P. 87;Stedwell v. City of Chicago, 297 Ill. 486, 130 N. E. 729, 17 A. L. R. 829;Oil Belt Power Co. v. Touchstone (Tex. Civ. App.) 266 S. W. 432;Hayes v. Southern Power Co. et al., 95 S. C. 230, 78 S. E. 956;Osborn v. Atchison, T. & S. F. Ry. Co.,...
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