Gouger v. Tennessee Valley Authority

• Citation: 216 S.W.2d 739,188 Tenn. 96
• Parties: GOUGER v. TENNESSEE VALLEY AUTHORITY (two cases).
• Decision Date: 17 January 1949
• Court: Tennessee Supreme Court

216 S.W.2d 739

188 Tenn. 96

GOUGER v. TENNESSEE VALLEY AUTHORITY (two cases).

Supreme Court of Tennessee.

January 17, 1949

Error to Circuit Court, Hamilton County; Fred B. Ballard, Judge.

Suits by Wesley Gouger, by next friend, against the Tennessee Valley Authority for an electric shock and consequent injuries received when plaintiff climbed a steel tower up or near to where several high-voltage uninsulated wires used for transmission of electricity were strung; and by George A Gouger against same defendant by reason of same injuries. From judgment sustaining demurrer to declarations and dismissing suits, plaintiffs bring error.

Judgment affirmed.

Frazier, Roberts & Weill, of Chattanooga, for plaintiffs in error.

Joseph C. Swidler, General Counsel Tenn. Valley Authority, and Charles J. McCarthy, Asst. General Counsel, both of Knoxville, for defendant in error.

TOMLINSON Justice.

Plaintiff in error, a fourteen year old boy, sued the Tennessee Valley Authority for an electric shock and consequent injuries received when he climbed a steel tower of the Tennessee Valley Authority up or near to the point where several high voltage uninsulated wires used for the transmission of electricity were strung. He has appealed from the judgment of the Circuit Court sustaining a demurrer to the declaration and dismissing his suit.

Several years before the accident the Tennessee Valley Authority had built this as one of its transmission lines for the purpose of conveying electricity from community to community and has since operated it. The high voltage uninsulated wires by which the electricity is conveyed are strung on and supported by steel towers erected at intervals along the line. One of these towers had been erected in a cultivated field owned by the father of the injured youth. This tower consisted of steel supports resting on the ground and braced by cross-arms. It was from thirty to forty feet high and had a ladder which extended from the ground to its top. It was not enclosed by a fence and there was not erected any sign of warning that it was dangerous.

On the day of the accident this youth at the direction of his father was engaged in plowing the field in which the tower was erected, and with him at the time were his brother and first cousin, each being thirteen years old. While plowing, he heard the high power lines on this tower 'making a strange and unusual hum or noise about the top of the tower' and he decided to make an examination 'in an effort to determine why it was making the noise,' and he and the other boys 'decided to climb the tower in order to play on the tower and to ascertain, if they could, why it was making the noise.' The climb was easy because of the ladder.

When the injured youth 'had climbed a considerable distance up the tower and into the tower' he received the electric shock on account of which he seeks to maintain this suit.

The theory of the plaintiff in error is that the facts stated bring the case within the attractive nuisance doctrine; that therefore, the Tennessee Valley Authority was derelict in the performance of the high degree of care which is required of it to protect children against this dangerous instrumentality to which it knew their natural curiosity would lead them, the breach of duty alleged being the erection of the ladder commencing at the ground rather than ten feet above the ground, and the failure to erect a warning that it would be dangerous to climb this tower; and a failure to enclose the tower with a fence to prevent children from reaching it. None of these duties would be owed plaintiff in error if the attractive nuisance doctrine is not applicable. Kelley v. Tennessee Electric Power Co., 7 Tenn.App 555, 564.

Since it is the duty of the Court--not the jury--to 'determine(d) the classes of cases or subjects to which the doctrine applies,' Louisville & N. Railroad Co. v. Ray, 124 Tenn. 16, 38, 134 S.W. 858, 863, Ann.Cas.1912D, 910, the ground of demurrer which should be considered first is the one by which it is insisted that the attractive nuisance doctrine has no application to the facts pleaded. This insistence, if sustained, is conclusive of the case.

Plaintiff in error relies upon Town of Clinton v. Davis, 27 Tenn.App. 29, 177 S.W.2d 848, in support of his insistence that the attractive nuisance doctrine does apply. That was a case in which an unisulated electric wire ran through and was concealed by the branches of a tree standing near the highway in a populous community. A twelve and one-half year old boy climbed this tree with no knowledge of the presence of the electric wire. It was the conclusion of the Court under the facts of that case that this...