Ellis v. Ashton & St. Anthony Power Co.

• Decision Date: 03 July 1925
• Citation: 238 P. 517,41 Idaho 106
• Parties: HARRY ELLIS and MABEL E. ELLIS, Husband and Wife, Respondents, v. ASHTON AND ST. ANTHONY POWER COMPANY, a Corporation, and NORTH LAKE CANAL COMPANY, a Corporation, Appellants
• Court: Idaho Supreme Court

238 P. 517

41 Idaho 106

HARRY ELLIS and MABEL E. ELLIS, Husband and Wife, Respondents, v. ASHTON AND ST. ANTHONY POWER COMPANY, a Corporation, and NORTH LAKE CANAL COMPANY, a Corporation, Appellants

Supreme Court of Idaho

July 3, 1925

DAMAGES - NEGLIGENCE - ELECTRICITY - DEATH - CUSTOM - EVIDENCE - HEARSAY - PLEADINGS - MATERIAL ALLEGATIONS - VARIANCE-SPECIAL INTERROGATORIES-WANTON NEGLIGENCE-NOTICE-INSTRUCTIONS-EXCESSIVE DAMAGES.

1. Evidence of custom of travel near a dangerous agency properly alleged, is admissible.

2. Special interrogatories examined and held not prejudicial in this case, though such practice is not commended.

3. Where a dangerous instrumentality is maintained on a person's own property he is charged with the duty of not wantonly injuring a trespasser.

4. "Wanton" and "reckless" mean destitute of heed or concern for consequences.

5. A person who uses such a dangerous instrumentality as electricity is bound not only to know the extent of the danger but to exercise that degree of care practicable to avoid injury to everyone who may be lawfully in proximity of its wires or liable to come in contact with them.

6. While a party will not be deemed to anticipate the commission of a wilful wrong, yet, where under the circumstances a technical trespass may be reasonably anticipated, the owner of the premises will be liable for a failure to take special precautions to prevent injuries to the trespasser.

7. The construction and maintenance, by a canal company and a company generating electricity, of an electric transmission wire carrying 44,000 volts, sagging at places, within reach of a child nine years of age standing on the ground, without warnings, barriers, fences or other obstructions protecting or guarding the line where trespassers may reasonably be expected, though the ground immediately beneath the wires was difficult of access, being a steep spoil bank made by the excavation of dirt deposited by drag-line buckets, is wanton negligence.

8. Instructions examined and held not prejudicial.

9. Before a verdict can be set aside on the ground of excessive damages, appearing to have been given under the influence of passion or prejudice, such fact must be clearly made to appear.

10. Damages in the sum of $10,000 for the death of a little girl nine years old, caused by wanton negligence, held not excessive.

APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. Geo. W. Edgington, Judge.

Action for damages. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondents.

John W Jones and Guy Stevens, for Appellants.

A child of tender years may be a trespasser and subject to the consequences of his trespass, especially when there is nothing about the premises attractive to children, and the only duty owing a trespassing child is that of avoiding wilful or wanton injury to him. (29 Cyc. 445, 446, and cases cited; 20 C. J. 353, and cases cited; Mayfield Water &amp Light Co. v. Webb's Admr., 129 Ky. 395, 111 S.W. 712, 18 L. R. A., N. S., 179, and cases there cited.)

The transmission line of the North Lake Canal Company was erected by it upon its own private property, and the deceased met her death as a trespasser on this property at a point where she had never theretofore been and at a point where there had been no travel and where no person could have been expected to go, and the company owed her no duty to expect her or to prepare for her safety. (United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615.)

Where plaintiffs set forth general allegations of negligence and follow them with a statement of specific acts of negligence, the plaintiffs will be confined in their proof to the acts specifically pleaded, and a variance amounts to a failure of proof. (Flaherty v. Butte Electric Ry. Co., 40 Mont. 454, 135 Am. St. 630, 107 P. 416; Bracey v. North Western Imp. Co., 41 Mont. 338, 137 Am. St. 738, 109 P. 706.) The specific acts of negligence charged must be proved. (29 Cyc. 587, and cases cited.)

The evidence of the use of the canal embankment in any manner not alleged in the complaint was inadmissible and should have been stricken on motion. The evidence must furnish substantial support for the cause of action alleged. ( Flaherty v. Butte Electric Ry. Co., supra, and cases cited; Bracey v. N.W. Imp. Co., supra.)

By instructions Nos. 20, 21 and 24, the court permitted the jury to render a verdict against the defendants if they are found to have been negligent in a manner not specified in the complaint or put in issue by the pleadings. (Flaherty v. Butte Electric Ry. Co., supra; Bracey v. N.W. Imp. Co., supra.)

Instructions numbered 25, 26, 27 and 28 entirely disregard the element of trespass by the deceased and consequently incorrectly state the law applicable to the facts. (20 C. J. 353; 29 Cyc. 445; United Zinc Chemical Co. v. Britt, supra; New York N.H. & H. Ry. v. Fruchter, 260 U.S. 141, 43 S.Ct. 38, 67 L.Ed. 173.)

The verdict of the jury is excessive. (Fox v. Oakland Con. Street Ry., 118 Cal. 55, 62 Am. St. 216, 50 P. 25; Golden v. Spokane & Inland Empire Ry. Co., 20 Idaho 526, 118 P. 1076; Clark v. Tulare Lake Dredging Co., 112 Cal.App. 414, 112 P. 564.)

Harry Holden and Douglas D. Mote, for Respondents.

Those dealing with dangerous agencies, and especially those dealing with such an extremely dangerous agency as electricity, in stringing their wires in places where it is reasonably probable that children will go, should be charged with the very highest degree of care and skill to protect children from injury while in the vicinity of such places even though they may be trespassers, and a failure to do so is actionable negligence. (Consolidated Elec. L. & P. Co. v. Healy, 65 Kan. 798, 70 P. 884; Daltry v. Media Consol. Elec. L. H. & P. Co., 208 Pa. 403, 57 A. 833; Denver Consol. Elec. Co. v. Walters, 39 Colo. 301, 89 P. 815; Temple v. McComb City Elec. L. & P. Co., 89 Miss. 1, 119 Am. St. 698, 10 Ann. Cas. 924, 42 So. 874, 11 L. R. A., N. S., 449; Meyer v. Menominee & M. L. & T. Co., 151 Wis. 279, 138 N.W. 1008; Caruso v. Troy Gas Co., 153 A.D. 431, 138 N.Y.S. 279; Harrington v. Wadesboro, 153 N.C. 437, 69 S.E. 399; 21 Am. & Eng. Ency. of Law, 2d ed., 473; Peters v. Bowman, 115 Cal. 345, 56 Am. St. 106, 47 P. 113, 598; Faylor v. Great Eastern etc. Co., 45 Cal.App. 194, 187 P. 101; Pierce v. United Gas & Elec. Co., 161 Cal. 176, 118 P. 700; Haynes v. City of Seattle, 69 Wash. 419, 125 P. 147; Sioux City & P. R. Co. v. Stout, 17 Wall. (U.S.) 657, 21 L.Ed. 745; Union P. Ry. Co. v. McDonald, 152 U.S. 262, 14 S.Ct. 619, 38 L.Ed. 434; Heller v. New York N.H. & H. R. Co., 265 F. 192; American Ry. Express Co. v. Crabtree, 271 F. 287.)

The court's instructions as to the legal responsibility of the deceased and the responsibility of the defendants embodied the correct principle and rule of law as applied to the evidence and were properly submitted to the jury. ( Barrett v. Southern P. R. Co., 91 Cal. 296, 25 Am. St. 186, 27 P. 666; Pekin v. McMahon, 154 Ill. 141; 45 Am. St. 114, 39 N.E. 484, 27 L. R. A. 206; Faylor v. Great Eastern etc. Co., supra; Graves v. Washington Power Co., 44 Wash. 675, 87 P. 956, 11 L. R. A., N. S., 452.)

A person or corporation using wires charged with electricity is bound, while the public is not, not only to know the extent of the danger arising from them, but to use the very highest degree of care practicable to avoid injury. (Tackett v. Henderson Bros. Co., 12 Cal.App. 658, 108 P. 151; Cahill v. E. B. & A. L. Stone Co., 153 Cal. 571, 96 P. 84, 19 L. R. A., N. S., 1094; Olson v. Gill Home Inv. Co., 58 Wash. 151, 108 P. 140, 27 L. R. A., N. S., 88.)

Liability attaches to the defendants notwithstanding deceased may be considered a technical trespasser. Children of tender years are not to be classed with trespassers, idlers or licensees to defeat recovery. (Ferrell Admr. etc. v. Dixie Cotton Mills, 157 N.C. 528, 73 S.E. 142, 37 L. R. A., N. S., 64; Bjork v. City of Tacoma, 76 Wash. 225, 135 P. 1005, 48 L. R. A., N. S., 331; City of Pekin v. McMahon, supra; Nelson v. McLellan, 31 Wash. 208, 96 Am. St. 902, 71 P. 747.)

The defendant owed a duty to the children in the vicinity wherein this line was constructed. (Snare & Triest Co. v. Friedman, 169 F. 1, 94 C. C. A. 369, 40 L. R. A., N. S., 367; Akin v. Bradley Eng. & Mach. Co., 48 Wash. 97, 92 P. 903, 14 L. R. A., N. S., 586; Jorgenson v. Crane, 86 Wash. 273, 150 P. 419, L. R. A. 1915F, 983; Mattson v. Minnesota & N.W. R. Co., 95 Minn. 477, 111 Am. St. 483, 104 N.W. 443, 70 L. R. A. 503.)

The instructions of the court should be considered as a whole, and it is not permissible to single out one instruction unless it is so wrong that it constitutes reversible error in itself. (Quirk v. Sunderlin, 23 Idaho 368, 130 P. 374; Breshears v. Callender, 23 Idaho 348, 131 P. 15; Just v. Idaho Canal etc. Co., 16 Idaho 639, 133 Am. St. 140, 102 P. 381.)

Special questions submitted to the jury were proper. (Kansas City v. Slangstrom, 53 Kan. 431, 36 P. 706.)

GIVENS, J. Wm. E. Lee and Budge, JJ., concur. WILLIAM A. LEE, C. J., concurring in Part and Dissenting in Part.

OPINION

GIVENS, J.

Respondents sued to recover damages for the death of their minor daughter caused by the alleged negligence in the construction and maintenance of an electric transmission line, it being further alleged that the deceased and other children were accustomed to travel upon the Canal Company's property near where the accident occurred, and that appellants by the use of ordinary and reasonable care and diligence should have known of such custom.

The jury found a general and special verdict in favor of plaintiffs for $ 10,000. Appellants appealed from the judgment...