Dillon v. Twin State Gas & Elec. Co.

• Decision Date: 05 April 1932
• Citation: 163 A. 111
• Parties: DILLON v. TWIN STATE GAS & ELECTRIC CO.
• Court: New Hampshire Supreme Court

163 A. 111

DILLON

v. TWIN STATE GAS & ELECTRIC CO.

Supreme Court of New Hampshire. Coos.

April 5, 1932.

Transferred from Superior Court, Coos County; Oakes, Judge.

Action by Henry Dillon, administrator, against the Twin State Gas & Electric Company, transferred to the Supreme Court on defendant's exception to the denial of its motion for directed verdict.

Exception overruled.

Action for negligently causing the death of the plaintiff's intestate, a boy of 14. A jury trial resulted in a disagreement.

The defendant maintained wires to carry electric current over a public bridge in Berlin. In the construction of the bridge there were two spans of girders on each side between the roadway and footway. In each span the girders at each end sloped upwards towards each other from the floor of the bridge until connected by horizontal girders about nineteen feet above the floor.

The wires were carried above the framework of the bridge between the two rows of girders. To light the footway of the bridge at its center a lamp was hung from a bracket just outside of one of the horizontal girders and crossing over the end of the girder near its connection with a sloping girder. Wires ran from a post obliquely downward to the lamp and crossed the horizontal girder a foot or more above it. The construction of the wire lines over and upon the bridge is termed aerial. The wires were insulated for weather protection but not against contact.

The decedent and other boys had been accustomed for a number of years to play on the bridge in the daytime, habitually climbing the sloping girders to the horizontal ones, on which they walked and sat and from which they sometimes dived into the river. No current passed through the wires in the daytime except by chance.

The decedent, while sitting on a horizontal girder at a point where the wires from the post to the lamp were in front of him or at his side, and while facing outwards from the side of the bridge, leaned over, lost his balance, instinctively threw out his arm, and took hold of one of the wires with his right hand to save himself from falling. The wires happened to be charged with a high voltage current at the time and he was electrocuted.

Further facts appear in the opinion.

Transferred by Oakes, J., on the defendant's exception to the denial of its motion for a directed verdict.

Matthew J. Ryan, of Berlin, for plaintiff.

Hughes & Burns, of Dover, and Edmund Sullivan, of Berlin (Hughes & Burns, of Dover, orally), for defendant.

ALLEN, J.

The bridge was in the compact part of the city. It was in evidence that at one time the defendant's construction foreman had complained to the city marshal about its use by boys as a playground, and in his complaint had referred to the defendant's wires. The only wires were those over the bridge superstructure. From this evidence and that relating to the extent of the practice for boys to climb up to and upon the horizontal girders an inference that the defendant had notice of the practice was reasonable. The occasion for the complaint might be found due to apprehension of danger from proximity to the wires. This only came about from climbing upon the upper framework of the bridge. There was no suggestion of danger in any use of the bridge confined to the floor level.

The use of the girders brought the wires leading to the lamp close to those making the use, and as to them it was in effect the same as though the wires were near the floor of the bridge. While the current in the wires over the bridge was mechanically shut off during the daytime, other wires carried a commercial current, and there was a risk from many causes of the energizing of the bridge wires at any time. It is claimed that these causes could not be overcome or prevented. If they could not, their consequences might be. Having notice of the use made of the girders, and knowing the chance of the wires becoming charged at any time, the defendant may not say that it was not called upon to take action until the chance happened. Due care demanded reasonable measures to forestall the consequences of a chance current if the chance was too likely to occur to be ignored.

The evidence tended to show that changes in the construction and arrangement of the lamp and its wires were practical. So that the wires running from the post to the lamp would be out of the way of one on the girders, a bracket carrying the wires inside it and specially insulated wires running down from a post to be set up on the outer side of the girder were testified to as suitable measures and devices which would avoid or lessen the danger of contact. The evidence to the contrary is not conclusive.

The defendant, however, makes the contention that it owed no duty of care to those not using the bridge in a rightful manner to make their wrongful use safe. If a duty might arise towards such a person as a workman painting the girders, yet it says there was none towards a boy in the decedent's position of climbing and mounting the girders without right.

The present state of the law here in force does not support the claim. The duty not to carelessly intervene against known trespassers is not doubtful, and known trespassers include those whose presence should in reason be anticipated. McCaffrey v. Company, SO N. H. 45, 54, 114 A. 395, 17 A. L. R. 813, and cases cited. Knowledge or notice of actual presence may be necessary to give notice of probable later presence, but, when the latter notice is once acquired, the duty of care may not be avoided by ignorance of actual presence thereafter. The duty not to intervene in such cases may call for active conduct of care as well as for the avoidance of active conduct of negligence. McCaffrey v. Company, supra, pages 54, 55 of 80 N. H., 114 A. 395; Castonguay v. Company, 83 N. H. 1,6,136 A. 702. The care owing to those probably to be present relates to the time when notice of the probability is received. There is then a relationship so as to impose the duty in advance of actual presence. To wait until actual presence before using care would defeat the duty to expected trespassers before their presence became known. The duty is in line with the general principle of care in anticipating harm to all likely to be exposed to a danger for which the person owing the duty is responsible.

When it is said that care is owing only towards those with whom there is a relationship, the problem of determining if a relationship exists remains. It is not solved by rigid and arbitrary classifications between those entitled, and those not entitled, to receive care. "The rule of reasonable conduct is applied in this jurisdiction * * * to show the extent of an existing relation. * * * It is a reasonable rule because it only calls for reasonable conduct." McCaffrey v. Company, supra, page 51 of 80 N. H., 114 A. 395, 398. And the rule goes even farther and serves to show the existence of a relation as well as its extent. Reasonableness is as well a test of the requirement of conduct as a matter of law as of its character, as a matter of fact.

A rule that no care is due one engaged in wrongful conduct is unreasonable without substantial qualifications. The duty of care towards a known trespasser has been developed through this test of what reasonableness requires. It is now as well settled as the lack of the duty towards those whose presence is not to be anticipated, because of its unreasonableness. To deny liability to the known trespasser is reasonably regarded as a greater injustice to him than to impose it is on the negligent defendant. It is not an enforcement of moral obligation by terming the obligation a legal duty, but it is a rule of liability reasonably invoked.

No one should profit from his wrong or take advantage of it; wrongful conduct is not to be excused; and one who does wrong should suffer its consequences. But the law of civil liability has no favor for penalties, and a policy of reasonable accountability has marked its efforts to regulate conduct. Discouragement of wrong, by depriving the wrongdoer of protection while engaged in its commission, should not go so far as to lead to the promotion of harmful or indifferent conduct towards him. Reasonable adjustment which is best adapted to secure proper conduct from all is the law's objective.

While one doing wrong must suffer its consequences, consequences are not in the law wholly determined by the natural principles of cause and effect. Logic may say that, if the wrong were not committed, exposure to danger from the defendant's conduct would not be incurred. But the law limits liability for consequences to such as it terms natural and proximate, leaving others as matters of occasion. The dividing line is ultimately one of reasonableness. In the suffering of consequences for a wrong, reasonable rules of the extent of liability for them are adopted, and at the same time reasonable rules limiting the exemption of liability of others for injury done during the commission of the sufferer's wrong.

In passing upon the issue of reasonableness, relative and comparative considerations are made. In general, when the danger is great and the wrongful conduct of the injured person is not serious, it is reasonable for the law to find a relationship and to impose a duty of protection. A defendant in...