Empire District Electric Co. v. Harris

• Decision Date: 09 March 1936
• Docket Number: No. 10277.,10277.
• Citation: 82 F.2d 48
• Parties: EMPIRE DISTRICT ELECTRIC CO. v. HARRIS.
• Court: U.S. Court of Appeals — Eighth Circuit

82 F.2d 48 (1936)

EMPIRE DISTRICT ELECTRIC CO. v. HARRIS.

No. 10277.

Circuit Court of Appeals, Eighth Circuit.

March 9, 1936.

Arthur C. Popham, of Kansas City, Mo., and A. E. Spencer, of Joplin, Mo. (A. E. Spencer, Jr., of Joplin, Mo., and Guy M. Cowgill and John F. Cook, both of Kansas City, Mo., on the brief), for appellant.

William L. Vandeventer, of Springfield, Mo. (F. W. Barrett, J. Herbert Taylor, and Paul W. Barrett, all of Springfield, Mo., and Calvin, Vandeventer & Kimbrell, of Kansas City, Mo., on the brief), for appellee.

Before STONE, SANBORN, and BOOTH, Circuit Judges.

STONE, Circuit Judge.

This is an appeal from a judgment on verdict awarding damages for personal injuries to a child of fourteen years of age. The injury came from a charged wire on a support between two skeleton steel towers utilized by appellant in connection with a transformer station. The action is based on negligence in not properly guarding the towers which, it is claimed, were attractive to children, and in not warning them of the dangers there. The towers were located entirely on private property of appellant. The issues here have to do with the sufficiency of the evidence to authorize submission to the jury. It is advisable to state the applicable rules of law so that the sufficiency of the evidence can be measured thereby.

The existence and the extent of the duty of safeguarding from a danger on private premises is controlled by the legal status of the person subject to such danger. If such person be one who is rightfully present, the duty is to use reasonable care under all the circumstances to protect him from the danger. If such person be a trespasser, the duty is only to refrain from wilful or wanton injury to him.

Whether a person coming on the premises in the vicinity of the danger is or is not a trespasser depends upon his being there without or with permission. Such permission may be inferred from various facts. One such set of facts is that where something is maintained on the premises which would naturally attract children from where they have a right to be, the maintenance of such attraction is given the legal force of an invitation and a child responding thereto is not a trespasser but an invitee as to the object and vicinity so attracting him. Being such, the duty exists to use reasonable care to guard the child from dangers to which it would be there exposed. Also, the situation that children may thus be there has a vital bearing upon what constitutes the "reasonable care" to be exercised — it must be such care to protect children.

Whether children will be so attracted by a thing is a matter of fact. Sometimes this fact appears from the very character of the thing without more. Sometimes this is not true and then the usual method of proof of attractiveness is by actual resort of children thereto. Such actual resort must be brought to the knowledge (actual or implied) of the landowner before he is treated as having to anticipate the presence of children and therefore having to use reasonable care to guard against injury to them.

Granted, however, that there is an object which is calculated to attract children to a certain portion of the premises, the only effects thereof are to make the children invitees and to impose upon the owner the duty of using reasonable care to safeguard them there. Whether he then uses such care is an entirely different question — the question of negligence vel non under those circumstances. The above statement as to legal rules is based upon cases in the Supreme Court and this court as follows: Best v. District of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882; New York, N. H. & H. R. Co. v. Fruchter, 260 U.S. 141, 43 S.Ct. 38, 67 L.Ed. 173; United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, 36 A.L.R. 28; Union Pac. R. Co. v. McDonald, 152 U.S. 262, 14 S.Ct. 619, 38 L.Ed. 434; Sioux City & P. Railroad Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745; Olson v. Ottertail Power Co., 65 F.(2d) 893; Hardy v. Missouri Pac. R. Co., 266 F. 860; Shellaberger v. Fisher, 143 F. 937, 5 L. R.A.(N.S.) 250.¹ Another case in this court (not of attractive nuisance) of value is Reynolds v. Iowa Southern Utilities Co., 21 F.(2d) 958.

Appellant challenges the evidence as insufficient to show: (1) That the tower on which the injury occurred was an attractive nuisance; (2) that it had any knowledge that boys would go to the place on the tower where the injury occurred; and (3) that it was negligent in protecting children from the cause of the accident and also, that the evidence conclusively shows that appellee was guilty of contributory negligence. Expressly without examining or determining that the tower was or was not an attraction to children or that appellee was or was not negligent (as to each of which there certainly is serious doubt as to the sufficiency of the evidence), we will treat the case on the assumption that the tower was attractive and that appellee was not negligent. This we do because we are convinced that no negligence was shown and because such determination disposes of the appeal. Only such statement of the evidence as is needed to determine the issue of appellant's negligence will be stated.

In its business of furnishing electric current, appellant maintained a transforming station located in the country about one mile from the town of Ozark, Mo. All of the transforming apparatus was contained in a building which was kept securely closed and locked. The wires carrying current to and from this building were carried on two skeleton steel towers which stood north and south and were located near the east side of the transformer building. The transformer house and towers had stood there for about twenty years before this accident. The higher powered wires (66,000 volts) were located at the extreme tops of the towers. The lower voltage wires (2,300 volts) were located toward the center of a single four inch channel iron connecting the towers and about 15 feet from the ground. The towers were between 35 and 40 feet high and between 12 and 13 feet square. They were constructed of four inch angle iron. The perpendicular uprights were imbedded in concrete blocks rising 6 to 8 inches above the ground. There were various horizontal irons which had a flat side on top being attached to the uprights by the other angle side — the lowest crosspiece being between 12 and 13 feet from the tops of the concrete bases. On each side, there were two diagonal braces starting just above the concrete bases and crossing at and fastened to the lowest horizontal iron. On the west side of the south tower there was a platform running the entire side and about 2½ feet wide. Several metal cleats or steps were fastened to the northwest upright and leading to the platform. The evidence is in conflict as to how many of these cleats and as to the height of the lowest one, but it seems clear that the lowest one was high enough above the concrete base to be out of reach of any but a well-grown boy standing on the base. There were no cleats or platform on the north tower. The towers were about 12 feet apart.² About 15 to 16 feet above the ground, a 4-inch angle iron, having one flat side up, connected the towers at the east sides — running from the northeast corner of the south tower to the southeast corner of the north tower. In the top of this crosspiece were inserted six wooden pins to carry insulation for wires. These pins were 4½ inches high and, with the glass or porcelain insulators, 6½ inches. As well as can be calculated from the photographs, these pins began about one-fourth the distance from each tower and were located in the central half of the crosspiece. At the time of the accident, the two pins nearest the south tower (having the platform) were bare of wires and insulators. The third pin had both — the wire carrying a voltage of 2,300 volts. It was this wire which caused the injury.

The manner in which the accident occurred was as follows: Plaintiff was a rather large boy fourteen years old. He and another boy, a year younger, were tending several cows which were grazing not far from the towers, on July 12, 1933. Shortly after noon, they decided to ascend to the platform on the south tower where they could comfortably watch the cows; the platform being then shaded by the transformer house. The plaintiff preceding, the boys climbed a short way on the tower struts to where they could reach the cleats and thence to the platform. After remaining there awhile, plaintiff proceeded alone along a horizontal channel iron along the north side of the south tower until he reached the northeast corner of the tower. Then he went down a short distance (probably something over a foot) to the cross iron connecting the towers. He straddled this iron and, with one hand behind him and the other in front, he "shimmied" himself along the iron. He reached and lifted himself over the two vacant wire pins which were 4½ inches high. Just how he came in contact with the live wire on the third pin is not clear in the evidence, since plaintiff did not take the stand and the other boy was then climbing down the tower from the platform and apparently engrossed therein. However, he did contact the wire and was very severely injured by the electric current therein.

The situation thus presented is that there were but two ways in which this wire (and the other two wires on the crossarm) could be reached. One was by climbing 15 feet up a vertical 4-inch channel iron to the cross-arm or by taking the route (taken by plaintiff) of climbing up to the platform and then passing along an entire side of the...