Fort Wayne and Northern Indiana Traction Company v. Stark

• Decision Date: 24 May 1920
• Docket Number: 10,399
• Citation: 127 N.E. 460,74 Ind.App. 669
• Parties: FORT WAYNE AND NORTHERN INDIANA TRACTION COMPANY v. STARK
• Court: Indiana Appellate Court

127 N.E. 460

74 Ind.App. 669

FORT WAYNE AND NORTHERN INDIANA TRACTION COMPANY v. STARK

No. 10,399

Court of Appeals of Indiana

May 24, 1920

Rehearing denied December 23, 1920.

Transfer denied January 26, 1921.

From Allen Circuit Court; John W. Eggeman, Judge.

Action by Carl Stark against the Fort Wayne and Northern Indiana Traction Company. From a judgment for plaintiff, the defendant appeals.

Affirmed.

Barrett Morris & Hoffman, for appellant.

Harry H. Hilgeman, for appellee.

OPINION

REMY, J.

On June 5, 1916, appellant, by virtue of a franchise granted to it by the city of Ft. Wayne, was engaged in the business of furnishing, for profit, electricity for lighting and power purposes to the inhabitants of said city; and that, for the purpose of transmitting electric current to its patrons, appellant had erected and was maintaining a system of electric wires along and upon the public streets of said city, including a street named and known as Portage avenue. The wire which it had placed along and over Portage avenue at the time was so constructed as to pass through the branches of a small elm tree located on private grounds, but very near the street at No. 21 of such avenue; and at the point where it passed through the branches of the tree the insulation of the wire was, and for at least two years prior to June 5, 1916, had been, defective, so that when it came in contact with the tree or the branches thereof flashes of light were noticeable. The tree was located in a neighborhood where, as appellant at all times knew, numerous children were in the habit of congregating and playing. On said June 5, 1916, while appellee, a child of nine years of age, and other small children were playing in the neighborhood of the tree, as was their custom, appellee, because of his tender years, not understanding the character of the defectively insulated wire, climbed into the tree, came into contact with the wire, and was thereby severely injured. This action is for damages for personal injuries thus sustained. The above facts, which were established by the evidence, form the basis of the complaint. A trial by jury resulted in a verdict and judgment for appellee.

The one question involved in this appeal is whether or not the facts, as above stated, show actionable negligence on the part of appellant.

Electricity is a dangerous force, and it is well established that companies engaged in its generation and distribution, while not liable as insurers to those who may come in contact with current carrying wires, are required to exercise reasonable care to keep such wires safely insulated. City of Decatur v. Eady (1917), 186 Ind. 205, 115 N.E. 577, L. R. A. 1917E 242; Denver, etc., Electric Co. v. Simpson (1895), 21 Colo. 371, 41 P. 499, 31 L. R. A. 566.

It is the contention of appellant that appellee was a trespasser that the wire in controversy was not a nuisance calculated to attract small children; and that, therefore, there can be no recovery. In other words, it is appellant's contention that, if it is liable to appellee for the injuries complained of, it must be upon the theory laid down in what is termed the "turntable cases." It is not the law, as assumed by appellant, that one who maintains premises on which a dangerous thing is suffered to exist, is not liable for injuries thereby resulting to children, unless such instrumentality is what is termed an "attractive nuisance." In 1 Thompson, Negligence 944, the author, in discussing the liability to children, of one who suffers a dangerous agency to exist on his...