Garrett v. Arkansas Power & Light Co.

• Decision Date: 26 March 1951
• Docket Number: No. 4-9424,4-9424
• Citation: 218 Ark. 575,237 S.W.2d 895
• Parties: GARRETT et al. v. ARKANSAS POWER & LIGHT CO. et al.
• Court: Arkansas Supreme Court

Page 895

237 S.W.2d 895

218 Ark. 575

GARRETT et al. v. ARKANSAS POWER & LIGHT CO. et al.

No. 4-9424.

Supreme Court of Arkansas.

March 26, 1951.

Kenneth C. Coffelt, Little Rock, for appellants.

House, Moses & Holmes, Thomas C. Trimble, Jr. and Edward B. Dillon, Jr., all of Little Rock, for appellees.

WARD, Justice.

On December 16, 1944 Tommy Garrett, then 17 years old, was injured by coming in contact with a 'live' electric wire when he climbed a light pole belonging to the defendant, Arkansas Power and Light Company. The extent of injury is not an issue here, because the lower court directed a verdict in favor of the defendants.

The scene of the accident is an old rock crusher located near the Little Rock Country Club, to the northwest, and also south of the Arkansas River. The land belonged to appellee, V. C. Johnson, and the pole and other electrical equipment were placed there some years ago by the Arkansas Power and Light Company to furnish power for the rock crusher, which has not been in operation for some time. There was another pole a few feet from the one mentioned and there was a platform built between on which rested the transformers. The platform was about ten feet from the ground; the poles were about twenty-nine feet tall; and three large insulated wires ran from the top of the transformers to the said building, but were not 'live' wires when the accident happened.

Appellant's testimony is to the effect that the entire locale looked dilapidated and that young people had been using it as a playground and picnic-ground for several years, at which time they would climb the poles and slide down the three long wires to the old building and would play around the building and the grounds; and that it was on such an occasion when Tommy climbed up one of the poles and contacted a 'live' wire, evidently at the top of the transformer, and was injured.

Since the question before us is whether there was sufficient evidence to make a jury question it seems proper to set out portions of appellants' complaint and to fully abstract the pertinent testimony.

The original complaint was filed by Charles D. Garrett, father and next of friend of Tommy Garrett, a minor, in his own behalf and on behalf of Tommy Garrett, and Tommy Garrett, a minor, in his own behalf, against Arkansas Power and Light Company, and V. C. Johnson, d/b/a Johnson Team and Dray Company, defendants, and states that the ground or location of the poles and high power lines was owned by the defendant, Johnson. Certain allegations of negligence were made in the complaint but an amendment to the complaint was later filed which contained substantially the same allegations from which we quote: '* * * said negligence being that high voltage lines not in use were abandoned and left by the defendants in the area of the tower and old rock crusher grounds where children and young people had access to said grounds and place and were in the habit of frequenting said place for recreational purposes, such conditions at the time and place being known to defendants or with the exercise of ordinary care could and should have been known to them; that no warning signs were posted and no information given to the public that said power lines or transmission lines were charged with heavy voltage; the said line was abandoned and left in such condition as to cause reasonable minds to believe the line was dead and unattended. The line, in fact, and the premises in connection therewith were unattended; that the grounds were not enclosed and were left free and open to the public, thereby extending invitation to the public to enter thereon; and the defendants had knowledge that said dangerous condition existed which the public did not have and that said wires were left exposed and accessible to this minor plaintiff, * * *'.

Appellees filed separate but similar answers in which they denied all material allegations and further stated that the accident occurred on December 16, 1944 and that the amended and substituted complaints should have been filed within three years after the accident occurred, and further stated that any injuries sustained by Tommy Garrett were due to his own negligence, carelessness and malicious acts; and that this private property was under fence with locked gate, and that the plaintiff as a trespasser willfully, maliciously and carelessly subjected himself to come in contact with the electric wire.

Appellees plead the three year statute of limitations but have not stressed the point in their briefs. It appears that no new issue was raised in the amendment to the complaint, and so we hold this statute is not available to appellees as a defense.

Charles D. Garrett, Sr. states: He has lived in Little Rock for the past twenty years, and brings this suit for himself and son. At the time of the accident his son was seventeen years of age. Until the accident occurred witness knew nothing of the premises. Three days later he went to the scene where he saw the old rock crusher, which was about three stories high; it has stair steps and here set two poles right in the open place just before it goes over into the valley. It was just a short distance from the rock crusher to the poles. He went back later and the gate had been nailed up and signs posted. Then he went back again and everything had been torn down and he took some pictures of the surroundings. There was no gate when he first went there and there was no fence around the property. The property looked dilapidated, and there were a lot of gun shells around, and plenty of people had been down there. There were wires hanging down, and he couldn't imagine the place being left open. When he went back the second time a gate had been put up and posted 'Keep Out Danger'. The dynamos in the rock crusher were corroded and rusted. The transformers on the electric wire poles were eight and one half or nine feet from the ground. There were a good many loose wires hanging around the poles, and the property showed no appearance of having been used recently. It looked like they were trying to move it away instead of building it. The meter box on the pole is about half way from the ground to the transformers. It is a good step from the ground to the meter box, and from the meter box on to the platform where the transformers are on the wire pole. Long cables ran from the landing on the pole where the transformers were situated on down into the valley where the children could slide down on the wires and could easily be reached from the ground. The rock crusher was a half a mile from the street that runs north and south just west of St. John's down where the rock crusher was.

Thomas Garrett states: He has been going down to the grounds where the rock crusher was and electric poles were ever since 'he was able to get away from home.' Very seldom went by himself, usually with a group, all ages. While there they would climb through the old building, climb over everything. Sometimes they would have picnics. There were three wires there and it was great sport to get on those wires and slide down them to the valley. You could reach up and get hold of those wires and put your foot on the bottom one and slide down to the building. This has been going on as long as he can remember. He had climbed up the poles many times, and has seen others do the same. The rock crusher has not been in operation since he can remember, and he started going there when he was eleven or twelve years old, and was seventeen when hurt.

'Q. Tell the jury what occurred down there, what happened. A. I had been playing around on the three big cables and climbing up on the top of the platform. The last time I hit it I don't remember. It was just that quick.

'Q. How did you get up there on that platform? A. At that particular time, hand over hand up the three cables. I stepped on this box then you take another step and you go up on the platform. It is three or four feet from the top of the box to the platform. I'd say it was about one hundred fifty feet from where these cables were tied into the top of the pole to where they run down to the buildings.

'Q. Was there many activities out there at all that came to your attention that would show anybody had charge of that property? A. None, and there never had been that I know about.

'Q. Do you think anybody thought there was electricity up there? A. No sir.

'Q. Is there any fence about that property out there, Tommy? A. No, other than what my dad said.

'Q. You realized, of course, Mr. Garrett, those were electric wires for the purpose of serving electricity, did you not? A. I thought----

'Q. You knew, however, it had been and was put there for the purpose of conveying electricity? A. I didn't think about it.

'Q. Well, for what purpose did you, think the line was put there, Mr. Garrett? A. At the time to tell you the honest truth, I thought it was for me to play on.

'Q. You knew, Mr. Garrett, that those were electric wires, did you not? A. I didn't know they had electricity in them.

'Q. You knew that electricity and electric wires as such might be dangerous, did you not? A. Well, if they had electricity in them, yes.'

He remembers climbing up to the platform but does not remember anything for quite some time. It was a damp drizzly day and some of them had been down there gathering mistletoe for Christmas. The transformers had big gapping holes in the side of them and he did not think about them. There was water or acid that day coming out of them.

'Q. You knew that was some kind of electrical equipment, did you not? A. Well, I know it now. I knew it then, but somehow as many times as I have been over there, I didn't think about it.'

Yes, he guessed he knew that those transformers were some kind of electrical equipment and knew that the wires running down something like one hundred fifty feet were electrical wires, and estimated the distance from the ground to the transformers to...