Crosby v. Savannah Elec. & Power Co., 42091

• Decision Date: 14 July 1966
• Docket Number: No. 42091,No. 3,42091,3
• Citation: 150 S.E.2d 563,114 Ga.App. 193
• Court: Georgia Court of Appeals
• Parties: R. L. CROSBY, by Next Friend, v. SAVANNAH ELECTRIC & POWER COMPANY

Page 563

150 S.E.2d 563

114 Ga.App. 193

R. L. CROSBY, by Next Friend, v. SAVANNAH ELECTRIC & POWER COMPANY.

No. 42091.

Court of Appeals of Georgia, Division No. 3.

July 14, 1966.

Rehearing Denied July 28, 1966.

Syllabus by the Court

1. A petition alleging that a fifteen-year-old boy, with the mind of a child eight or nine years old, climbed a power pole to retrieve a balloon with which he and other children had been playing on a vacant lot adjoining which the pole was located, and in so doing became injured when he took hold of an uninsulated wire leading from the transmission line to the transformer box, does not set out a cause of action against the power company.

2. The child was a trespasser in climbing the pole, though it may have been the custom of children to play in its vicinity on the vacant lot.

3. The use of uninsulated wires, coated with a dark weather-proofing material, in its transmission lines and the line leading into the transformer, some 20 feet above the ground, is not a mantrap and does not constitute wilful and wanton negligence as against a trespasser whose presence was not known.

4. Though a provision in a city ordinance granting the defendant a franchise required insulation of its wires, failure to do so resulted in no breach of duty to the plaintiff, a trespasser, unless his presence on the pole was known.

5. Presence near the pole of pipes to the fuel oil tanks of another, and of braces on the pole for supporting a meter box, not being 'hooks or prongs' intended for use in climbing, do not come within the proscription of an ordinance prohibiting hooks and prongs at heights of less than eight feet. The defendant is not liable for an injury resulting from an unintended use of the pipes and meter box braces.

6. To be effective and give rise to some duty to warn the plaintiff of impending danger in climbing the pole, it must appear that the owner had actual knowledge of the trespasser's presence thereon.

Rodney Crosby, through his mother, Mrs. Lillian Crosby, as next friend, asserting himself to be a child fifteen years of age and retarded, having the mental capacity of a normal child eight or nine years of age, brought suit against Savannah Electric & Power Company, alleging that he had received serious injuries when he climbed one of the defendant's power poles located near the Starland Dairies on DeSoto Avenue in Savannah, from which power was supplied to Starland Dairies. He alleged that he, together with several younger children, had been playing on a vacant area of the Starland Dairies property and that a helium filled balloon of one of the children escaped and became caught in defendant's power lines. Seeking to recover the balloon, plaintiff climbed the pole, near which it was lodged, by means of three iron pipes to the fuel oil tank of Starland Dairies and located about one foot from the pole, a meter box a little further up and on the opposite side of the pole, a drain pipe on the building of Starland Dairies, two ceramic insulator knobs attached three to four feet above the meter box, and the parapet of the dairy building. These enabled him to reach a point on the pole just below the high voltage wires where a transformer box was attached, approximately twenty feet above the ground. The wires into the transformer box was uninsulated and carrying 2300 volts. He grasped a wire with his left hand, suffered severe burns and fell to the ground.

It was alleged that the defendant could and should have known that children of the neighborhood customarily played in the vacant area near the power pole and that it should have anticipated that this child would have used the pipes, meter box, drain pipe, etc., as a means of climbing the pole and thus come in contact with the high tension wires.

The franchise of defendant, in the form of a city ordinance, was pleaded, by which it is provided that the power company shall at all times have its wires and electrical conductors thoroughly insulated and that they shall be maintained to the satisfaction of the mayor and aldermen, and it was alleged that the high tension wires, including the feed wire into the transformer which plaintiff's son grasped, were not insulated but were coated with a dark weather-proofing material. Another ordinance was pleaded which prohibits the placing or leaving of hooks or prongs in any pole within eight feet of the surface of the ground. It was alleged that the supports for the meter box constituted 'hooks or prongs' within the meaning of the ordinance, and that these, in conjunction with the pipes to the fuel tank of Starland Dairies and the drain pipe from the roof of the Starland building amounted to a ladder arrangement by which young children could climb to the dangerous, high voltage wires.

Plaintiff asserted that the use of uninsulated high voltage wires, covered with a black or dark weather-proofing material, and that the placing of the meter box brackets on the pole at a point just above the height of the fuel pipes, making it possible for the pole to be climbed by their use, constituted a mantrap and that in the context of the other facts alleged, failure to warn plaintiff of his danger constituted wilful and wanton negligence.

The petition was brought in three counts. The first count, alleging that plaintiff was a licensee, was based upon allegations of the existence of a mantrap and of wilful and wanton negligence. The second, not alleging plaintiff's status, sought recovery based upon defendant's alleged failure to exercise ordinary care. The third count alleged that plaintiff and defendant had equal rights of access in the area of the pole, that he was an invitee and that defendant had failed to exercise ordinary care for his safety.

To the sustaining of a general demurrer to all counts of the petition plaintiff appeals.

W. Ward Newton, Savannah, for plaintiff in error.

Bouhan, Lawrence, Williams & Levy, Frank W. Seiler, E. Pomeroy Williams, Savannah, for defendant in error.

EBERHARDT, Judge.

1. Plaintiff's status. It is contended by the defendant that the allegations of the petition show plaintiff to have been a trespasser. We agree.

In determining the status of a person, that is to say, whether he was an invitee, a licensee or a trespasser, neither his age nor his capacity, mental or physical, is a factor for consideration. Savannah, Florida & Western Ry. Co. v. Beavers, 113 Ga. 398, 39 S.E. 82, 54, L.R.A. 314; Atlanta & West Point Ry. Co. v. West, 121 Ga. 641, 646, 49 S.E. 711, 67 L.R.A. 701; Augusta Amusements, Inc. v. Powell, 93 Ga.App. 752, 753, 92 S.E.2d 720. Consequently, the determination here must be without reference to the fact that plaintiff was a boy fifteen years of age and having the mentality of a normal child of eight or nine years.

There are no allegations of invitation to the plaintiff by the defendant, or of the extending to him of permission to climb its power pole. On demurrer, the petition must be construed in the light of these omissions as well as of the averments. Houston v. Pollard, 217 Ga. 184, 121 S.E.2d 629; Strother v. Keenedy, 218 Ga. 180, 186, 127 S.E.2d 19; Henderson v. Baird, 100 Ga.App. 627, 633, 112 S.E.2d 221. It must be assumed that there was neither invitation nor permission extended.

A trespasser is one who, though peaceably, wrongfully enters upon the property of another. In the context here it is one who wrongfully goes upon or climbs the pole of the defendant; or, to state it differently, one who, without authority or permission from the owner, does so. Permission or consent to climb the pole can not be implied, even if the owner may have knowledge that it was customary for children to play in the area where it was located. Rowland v. Byrd, 57 Ga.App. 390, 195 S.E. 458. Nor would it matter that the children may have been licensees as to the ground where they played, for extension of permission (express or implied) by the owner of the ground to play upon it could not include an extension of permission by the owner of the pole to climb it. Cf. Piggly Wiggly Macon, Inc. v. Kelsey, 83 Ga.App. 526, 64 S.E.2d 201, and Smith v. Jewell Cotton Mill Co., 29 Ga.App. 461(2), 116 S.E. 17, where it was held that '(T)he invitee may not wander at will, without further invitation, to out of the way or dangerous places on the premises, or use parts thereof for purposes wholly disconnected from and in no way pertaining to the business in hand or the objects of the invitation * * *' It could not be assumed that a permission to play upon the land area in the vicinity of the pole would extend to the climbing of the pole to highly dangerous wires some twenty feet above, even if the land and the pole were under common ownership, and much less so when it appears, as here, that the land and the pole were under separate ownership.

'A power company constructed over the land of another, with his consent, its transmission line. The wires were three in number, strung to poles at a height of 22 feet from the ground. The wires passed over a sweetgum tree, the top of which had been cut out to prevent contact of the wires with the tree. The wires were not insulated and carried an electrical current of high voltage. The tree had sometimes been visited by children for the purpose of procuring the gum, which exuded from cuts or abrasures on the tree; but the power company's officials had no knowledge of this. A 13 year old boy, unusually wellgrown for his age, though warned by his father some months previously of the dangerous character of the wires, climbed the tree in search of gum, came in contact with the wires, and was killed. Held that, in suit for damages for the alleged wrongful death of the boy, the power company is not liable.' Brown v. Panola Light & Power Co., 137 Ga. 352, 73 S.E. 580. A similar case is Bridges v. Georgia Power Co., 39 Ga.App. 400, 147 S.E. 589, though it does not appear that the child had been previously warned of the danger, and...