Ferrell v. Dixie Cotton Mills
| Decision Date | 23 December 1911 |
| Parties | FERRELL v. DIXIE COTTON MILLS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Iredell County; Lyon, Judge.
Action by M. C. Ferrell, as administrator, etc., against the Dixie Cotton Mills. Judgment for plaintiff, and defendant appeals. Affirmed.
Defendant cotton mill company maintained various dwelling houses for employees around its plant, and, back of a garden patch connected with one of the houses rented to plaintiff defendant maintained an electric pole which had been partially sustained by a guy wire fastened in the ground. The pole supported uninsulated electric wires carrying a high voltage for power purposes, and the guy wire was fastened to the pole above the cross-arm and came down between two of the electric wires passing within eight inches of one of them. The guy wire had become loose some six or eight months prior to the accident and had been permitted to hang against the pole which, though located entirely on defendant's ground, was in an open space where the children of the neighborhood, including plaintiff's intestate, a child six years old, were wont to play, and who, to defendant's knowledge, had been in the habit of catching hold of the wire and swinging on it out from the pole and back. On the day of the accident the wire had become charged, and plaintiff's intestate took hold of it and was instantly killed. Held that, even though the child was a trespasser, defendant was guilty of actionable negligence in permitting such dangerous condition to exist on its premises, known to be frequented by children, and was therefore liable for decedent's death.
This action was brought by the plaintiff to recover damages for the death of his son, which is alleged to have been caused by the negligence of the defendant. The intestate of plaintiff his six year old son, was killed by an electric shock received from a loose guy wire, suspended from a pole on which was strung the wires supplying defendant with power to run its cotton mill. This pole was on defendant's property and belonged to it. The guy wire was attached to the top of the pole, and fastened at the other end to a piece of timber in the ground. This guy wire was for the purpose of holding the pole in place. The wires--three of them--which carried the current were naked; that is, they were uninsulated except where they were fastened to the cross-arm on the poles. This guy wire was fastened to the pole above the cross-arm and came down between two of the electric wires, passing within some eight inches of one of them. Some six or eight months prior to the boy's death, the earth had been removed from the place where the guy wire was fastened in the ground, so that it became loose. It was permitted to hang loose against the pole for several months before the injury. The plaintiff, with his family, lived in one of the defendant's dwelling houses. Two of his children worked in the mill. The house was only a short distance from this pole, only 50 yards or more. Plaintiff testified that the pole was just beyond the corner of his garden patch. The evidence indicates that there were some 20 or more of the mill dwellings; that there were no fences about them; and that people, children and others, were accustomed and were permitted to go about the settlement pretty much as they pleased. This pole stood some 10 feet or more from the railway track, which at that point ran through a cut. There was a path on the side of the cut and between it and the pole. Any one who desired to do so used this path. There is much evidence in the record that children had been accustomed to play about this pole, on the railway bank, and they were seen on several occasions playing about it, playing with this loose guy wire, swinging on it out from the pole and back. This fact had been reported to the agents of the defendant. It was admitted that the wires on the pole carried a current of 2,200 volts, and the evidence shows that such a current is highly dangerous and deadly. At the close of the testimony, the defendant moved to nonsuit the plaintiff. This motion was overruled, and whether it should have been granted depends upon the state of the evidence. Defendant appealed.
H. P Grier and Z. V. Turlington, for appellant.
L. C. Caldwell, Burwell & Cansler, and Gillett & Guthrie, for appellee.
The negligence charged against the defendant is the maintaining by it of a highly dangerous and deadly condition and instrumentality on premises which were uninclosed, and which were in an attractive place to children, and on which premises defendant knew, or by the exercise of reasonable care ought to have known, that small children were accustomed to play. There was ample evidence to sustain this allegation. The contention of the appellant is that the child was a trespasser, to whom it owed no duty except to refrain from willfully injuring it. If the injury had been to a person of such mature age that he could appreciate the nature of his acts, and the dangers attached to the situation, we would agree with this contention. But when, as in this case, the injury is suffered by a six year old boy, under such circumstances and surrounding conditions as the evidence showed to exist, a different rule of law governs the conduct and liability of the defendant. What did this six year old boy know about the dangers of electricity? What could he possibly have known about the rules of property and the laws of trespass? Technically he may have been a trespasser on defendant's land; but all he knew about it was that it was an attractive place to play, and that it was where he and the other little children of the neighborhood were accustomed to play, and had been playing for months past. The defendant knew, or ought to have known, that this pole with the loose guy wire attached to it was an instrument of death, which might become effective to any one who came in contact with it. The defendant also knew, or ought to have known, that the children were in the habit of playing about this pole, and that they were also in the habit of swinging on this loose guy wire. Under these circumstances, the law will not permit the defendant to allege a technical trespass and thereby shield itself from the consequences of its negligence, resulting in the death of the son of the plaintiff.
The doctrine of the "turntable cases" was first before this court in the case of Kramer v. Railroad, 127 N.C. 328, 37 S.E. 468, 52 L. R. A. 359. There the nine year old son of plaintiff was killed by climbing upon a pile of cross-ties negligently stacked by defendant in an unused portion of one of the streets of the town of Marion. The court held that plaintiff's son was not a trespasser; but it further says:
In Briscoe v. Power Co., 148 N.C. 396, 62 S.E. 600, 19 L. R. A. (N. S.) 1116, plaintiff was not permitted to recover, as the evidence failed to show that the premises of defendant were especially attractive to children, or that children were accustomed to play there; and also that this rule of law had never been held applicable in the case of a boy 13 years of age. But, in the course of the opinion, Mr. Justice Connor states his approval of the rule of law, which we think is applicable to the case in hand. On page 411 of 148 N. C., on page 606 of 62 S.E. (19 L. R. A. [N. S.] 1116), he says, quoting from 21 A. & E. Enc. 473: "A party's liability to trespassers depends on the former's contemplation of the likelihood of their presence on the premises and the probability of injury from contact with conditions existing thereon." Immediately following this language, the editor says: "The doctrine that the owner of premises may be liable in negligence to trespassers whose presence on the premises was either known or might reasonably have been anticipated, is well applied in the rule of numerous cases that one who maintains dangerous implements or appliances on uninclosed premises of a nature likely to attract children in play, or permits dangerous conditions to exist thereon, is liable to a child who is so injured, though a trespasser at the time when the injuries were received; and with stronger reason, when the presence of a child trespasser is actually known to a party, or when such presence would have been known had reasonable care been exercised."
In the case of Harrington v. Wadesboro, 153 N.C. 437, 69 S.E. 399, plaintiff was permitted to recover for the death of her son, a 17 year old boy, who was killed by catching hold of a wire which was hanging low over a path used by people in going to a moving picture show. The Harrington Case, supra, Haynes v. Gas Co., 114 N.C. 203, 19 S.E. 344, 26 L. R A. 810, 41 Am. St. Rep. 786, Mitchell v. Electric Co., 129 N.C. 166, 39 S.E. 801, 55 L. R. A. 398, 85 Am. St. Rep. 735, as well as other cases in our reports, lay down the rule that persons and corporations dealing in electricity are held to the highest degree of care in maintenance and inspection of their wires, poles, etc. This rule is well stated in Mitchell's Case, supra: "In behalf of human life, and the safety of mankind generally, it behooves those who would profit by the...
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