Erikson v. Wis. Hydro Elec. Co.

• Decision Date: 03 April 1934
• Citation: 214 Wis. 614,254 N.W. 106
• Parties: ERIKSON v. WISCONSIN HYDRO ELECTRIC CO.
• Court: Wisconsin Supreme Court

214 Wis. 614

254 N.W. 106

ERIKSON

v.WISCONSIN HYDRO ELECTRIC CO.

Supreme Court of Wisconsin.

April 3, 1934.

Appeal from a judgment of the Circuit Court for Chippewa County; James Wickham, Circuit Judge.

Action by Andrew Erikson, administrator of the estate of Gordon Andrew Erikson, deceased, against the Wisconsin Hydro Electric Company. From a judgment for plaintiff, defendant appeals.--[By Editorial Staff.]

Affirmed.

This was an action, commenced on February 24, 1933, by Andrew Erikson, administrator, against the Wisconsin Hydro Electric Company, to recover damages for the death of his son. The son was electrocuted as a result of coming in contact with an electric wire owned and operated by defendant, and which was strung in close proximity to a tree which the boy had climbed. The case was tried to the court and a jury, and a special verdict returned. Defendant was found guilty of negligence with respect to maintaining its wire near the trunk of the tree in an unguarded and uninsulated condition, and this was found to be a cause of the accident. Both the deceased and his father were found not to have been guilty of contributory negligence. The damages were assessed at $200 for funeral expenses, $600 financial loss sustained by plaintiff by reason of the death of his son, and $2,500 damages for loss of society and companionship sustained by plaintiff. From a judgment entered upon the verdict defendant appeals. The facts are sufficiently set forth in the opinion.

Peterson & Slocumb, of Menomonie, for appellant.

Alexander Wiley and Robert L. Wiley, both of Chippewa Falls, for respondent.

WICKHEM, Justice.

Defendant owned and operated a 6,900-volt, three-wire transmission line supported by cedar poles along the south side of an east and west road which passed in front of plaintiff's farm house. Plaintiff's house was south of the highway, and the north wire of the transmission line passed between two feet four inches and two feet eight inches from the trunk of a tree, the variance depending upon the direction of the wind. The limbs of the tree were trimmed in the immediate vicinity of the wire. The lower branches of the tree were about five feet four inches from the ground. There was no warning sign upon the tree. The wires were not insulated, nor was there any sort of guard on the tree or the wires near the tree. There was a sign on a post carrying the wires and located twenty-nine feet from the tree, which read: “DANGER--HIGH VOLTAGE.”

Plaintiff was the owner of the farm upon which the wires and the tree were located, but did not live on the farm. He rented it to his adult son. On the day of the accident plaintiff had left deceased, aged eleven years, at the farm while he made a trip to town. While playing in the yard near the tree, deceasedstarted to climb the tree and was ordered to keep out by the wife of the tenant. He later again climbed the tree to see a bird's nest, and while in the tree came in contact with the wire and was electrocuted.

[1][2] The first question is whether the evidence sustains the jury's conclusion that defendant was negligent. Defendant contends that this was a rural line and that insulation was impractical; that the tree was trimmed on the side nearest the wire so that it would be difficult for a person to climb up on that side of the tree; that the tree was so trimmed that a person climbing the tree would naturally climb on the opposite side of the tree and away from the wire; that the wire was twenty feet from the ground; that the tree was high; and that there was no practical means of giving other protection. The contentions cannot be sustained. Ordinarily the extent to which wires conveying deadly electric currents should be insulated or otherwise guarded is a jury question. Parsons v. Charleston Consolidated R., etc., Co., 69 S. C. 305, 48 S. E. 284, 104 Am. St. Rep. 800;Dumphy v. Montreal Light, etc., Co. [1907] A. C. (Eng.) 454, 9 Ann. Cas. 749. It is a jury question in this case whether it should not have been foreseen that a tree of this sort, with many low-hanging branches, readily climbed by youngsters, would attract a child to climb into a position of peril. See note, 14 A. L. R. 1032;Graves v. Interstate Power Co., 189 Iowa, 227, 178 N. W. 376;Chickering v. Lincoln County Power Co., 118 Me. 414, 108 A. 460....