Davis v. Malvern Light & Power Co.

• Decision Date: 07 July 1919
• Docket Number: 32546
• Citation: 173 N.W. 262,186 Iowa 884
• Parties: CHARLES EDWIN DAVIS, Administrator, Appellant, v. MALVERN LIGHT & POWER COMPANY, Appellee
• Court: Iowa Supreme Court

173 N.W. 262

186 Iowa 884

CHARLES EDWIN DAVIS, Administrator, Appellant, v. MALVERN LIGHT & POWER COMPANY, Appellee

No. 32546

Supreme Court of Iowa, Des Moines

July 7, 1919

Appeal from Mills District Court.--J. B. ROCKAFELLOW, Judge.

ACTION for damages. The facts are fully stated in the opinion. There was a verdict below, by direction of the court, for defendant. Plaintiff appeals.

Affirmed.

Tinley Mitchell, Pryor & Ross, for appellant.

Cook Cook & Cook, and Thornell & Thornell, for appellee.

STEVENS J. LADD, C. J., WEAVER and GAYNOR, JJ., concur.

OPINION

STEVENS, J.

Plaintiff is the father and administrator of the estate of Russell Edwin Davis, a child under the age of six years, who was killed on May 28, 1917, at Malvern, Iowa, by taking hold of an imperfectly insulated electric wire, carrying 2,300 volts of electricity. The defendant is a corporation, owning and operating an electric light company in Malvern, and on the date in question, was supplying power to the Malvern Milling Company for the operation of a large flouring mill.

Three of defendant's wires were carried from a crossbeam near the top of a high pole to another crossbeam attached to the same pole, at a height substantially parallel with eaves of the motor shed of the milling company, to which they were attached, and from which they were carried directly and immediately into the milling company's motor shed. Defendant's pole stood about 30 inches from the building, and was surrounded by 10 strands of galvanized barbed wire, securely fastened to 4 posts, so arranged and set in the ground as to leave an open space between the pole and the fence. The wire fencing was obviously erected in the manner stated for the purpose of preventing persons from coming in contact with the electric wires which entered the motor shed about 6 feet above the ground. The posts to which the barbed wire was attached were from 26 to 40 inches apart, and the strands of wire were 6 or 7 inches apart. From the ground to the top wire was about 5 feet and 6 inches. The mill and electric light pole of defendant are located on a large unenclosed lot, with a yard on the east side about 30 feet wide and one-half block in length, and on the north side by a yard about 100 feet wide and 150 feet in length. There was a street, or highway, adjoining the yard east of the mill. Russell Edwin Davis, at the time of the accident, stood with both feet on the eighth wire from the ground, to which place he had climbed on the wire fencing, and, leaning over the top wire, with his stomach lying thereon, he was able to, and did, reach and take hold of the electric wire nearest to him, and above the crossbeam from which same were carried into the motor shed. The wire taken hold of by him was imperfectly insulated, and he was instantly killed.

Two grounds of negligence charged in plaintiff's petition and relied upon in argument by appellant are as follows:

"1. That said defendant was guilty of negligence in that it knowingly permitted a dangerous and deadly instrumentality to be and remain upon the premises of the Replogle Mill in Malvern, Iowa; and the defendant, as a reasonably prudent person, should have known that said dangerous instrumentality, to wit, its three heavily charged electric wires, placed as alleged in plaintiff's petition, were located in a place frequented by children of tender years, or in a place likely to be frequented by children of tender years; and said defendant should have known that the manner in which said wires were placed upon said premises and the environment in which they were placed would appeal to the playful instincts of children and attract them to it, and, upon their coming, their safety would be imperiled.

"2. That defendant company was negligent because it was reasonably chargeable with knowledge that children were likely to come in contact with its dangerous wires at a point where said wires enter the Replogle Mill in Malvern, Iowa; and, in the exercise of reasonable care, the defendant might have avoided such injury."

If liability exists in this case, it is upon the ground that the injuries resulting in the death of Russell Edwin Davis were received while he was playing with and upon a dangerous agency or instrumentality maintained by defendant in a position and upon premises which its officers and agents should reasonably have anticipated would be likely to attract children of tender years and immature judgment, and cause injury to them.

The evidence shows, as stated above, that the electric light pole and wire fencing were upon unenclosed premises, and that same were surrounded by a large open space, where children frequently congregated to play. The officers and employees of the milling company, however, ordered them to leave the premises, when their presence thereon became known to them. There is no evidence of an express invitation to the children to play upon the open space surrounding the mill property, nor is there direct evidence that the officers or agents of defendant knew that children were accustomed to assemble for play and sports upon the premises, or in the vicinity of the alleged dangerous instrumentality. They were, however, familiar with the surroundings.

Unless deceased went upon the premises upon the invitation of the defendant, express or implied, he was a trespasser, and defendant owed him only the duty not to injure him willfully or wantonly, and to use reasonable care, after his presence on the premises became known, to avoid injuring him. Gregory v. Woodworth, 93 Iowa 246, 61 N.W. 962; Connell v. Keokuk E. R. & P. Co., 131 Iowa 622, 109 N.W. 177; Brown v. Rockwell City Canning Co., 132 Iowa 631, 110 N.W. 12; Anderson v. Fort Dodge, etc., R. Co., 150 Iowa 465, 130 N.W. 391; Hart v. Mason City B. & T. Co., 154 Iowa 741, 135 N.W. 423; Wilmes v. Chicago G. W. R. Co., 175 Iowa 101, 156 N.W. 877. Or, if deceased was upon said premises by the sufferance or acquiescence only of defendant, he was a bare licensee, and defendant would not be liable for the injuries resulting in his death. Connell v. Electric R. Co., supra; Wilmes v. Chicago G. W. R. Co., 175 Iowa 101, 156 N.W. 877.

The whole case turns on the question whether the several strands of barbed wire attached to the posts surrounding the electric light pole, together with their immediate surroundings, were of a nature likely to attract children, and whether the defendant, and its officers and agents, should have known therefrom, together with the...