Hart v. Union Mfg. & Power Co.

Decision Date09 July 1930
Docket Number12945.
Citation154 S.E. 118,157 S.C. 174
PartiesHART v. UNION MFG. & POWER CO.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Union County; Harry Hines Special Judge.

Action by Claud Hart, as administrator of the estate of Woodrow Hart, deceased, against the Union Manufacturing & Power Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

At the conclusion of Plaintiff's testimony, the Defendant made a motion for a non-suit upon the following grounds:

(a) That it was uncontradicted, the deceased knew the danger.

(b) That the tower was an instrumentality not of the kind or nature to attract young and innocent children, and the deceased knew it was dangerous and climbing it would likely injure him.

(c) That in climbing the tower the deceased was a trespasser and Defendant owed him no duty other than to not injure him willfully.

(d) There was no testimony to show or tend to show that the injury to the deceased was a direct or proximate result of any fault or negligence on the part of the Defendant.

(e) There was no proof that Defendant owed any duty to the deceased, whether as a trespasser or licensee.

(f) There was no proof that Defendant actually or impliedly invited he deceased on its right of way or tower.

(g) That Defendant's power line and tower were used in its usual course of business, were in suitable repair for the purpose of its use, could not be an attractive nuisance to children if near a traveled place and actually were not near a road or any traveled place.

(h) That the tower, crossarms, and wires were in good condition.

(i) That the nature of the tower showed it was inaccessible and harmless, and deceased had to make a difficult climb of about thirty-five (35) feet to reach a point of danger.

(j) That the deceased child had to climb about thirty-five feet to reach the charged wire and could not have gone there to play with it, whereas under the attractive nuisance doctrine the child must have used the dangerous instrumentality for play or amusement.

(k) That the Defendant had no actual notice of the use of its tower by the deceased or other children and even had no such notice that would put it on inquiry.

This motion was refused.

Exceptions.

6. That the Presiding Judge erred in charging the jury "if a man erects and maintains on his premises a dangerous and destructive instrumentality, and so erects it in such form as it appeals to a child, that is, the average normal every day child, to come in contact with it, or touch it, or project with it, or play with it, and a child doing those things which a child would ordinarily do, does come in contact with it and is injured because of the temptation, and because of that faculty of childhood to be tempted by that kind of thing, and the normal every day child is injured under those circumstances, and the jury reached the conclusion that the Plaintiff has shown by the greater weight of the evidence, of the danger, under those circumstances, the Plaintiff would be entitled to recover"; the error being in the failure of the Presiding Judge to qualify the said charge by stating that for the principle announced to apply the dangerous instrumentality must have been placed within reach of the child.

7. That the Presiding Judge erred in charging the jury under Plaintiff's eleventh request to charge the following "To maintain upon one's own property enticements to the ignorant and unwary is tantamount to an invitation to visit and inspect and enjoy, and, in such case, the obligation to endeavor to protect from the dangers of the seductive instrument or place follows as justly as though the invitation had been expressed. 'Now, you catch what that means, Gentlemen? The inducements to the ignorant and unwary, that in one sense of the word is, tantamount to an invitation to the ignorant and unwary, to be tempted by it"; whereas the Presiding Judge should have qualified his charge by stating that the "seductive instrument or place" must have been within reach of "the ignorant and unwary."

8. That the Presiding Judge erred in charging the Plaintiff's twelfth request to charge, as follows: "Children, wherever they go, must be expected to act upon childish instincts and impulses, and others who are chargeable with a duty of care and caution towards them must calculate upon this and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which in their immature judgment might naturally suppose that they were at liberty to handle or play with, they should expect that liberty to be taken. 'That is another way of saying, Gentlemen of the Jury, that a man must anticipate that the normal child will do what the normal child is expected to do, and they must act accordingly" D"DD'; the error being that the charge makes one liable for anything "exposed to the observation of children," regardless of whether it is within reach or not.

9. That the Presiding Judge erred in charging the Plaintiff's fourteenth request to charge, as follows: "One who artificially brings or creates upon his own premises, any dangerous thing which from its nature has a tendency to attract the childish instincts of children to play with it, is bound, as a mere matter of social duty, to take such reasonable precautions as the circumstances admit of, to the end that they may be protected from injury while so playing with it, or coming in its vicinity"; the error being that the Presiding Judge failed to qualify such charge by a proviso that knowledge should be brought home to the owner that the "dangerous thing" did attract children, that it was within reach and they did play with it.

10. That the Presiding Judge erred in charging that part of Plaintiff's fifteenth request to charge, as follows: "Although the dangerous thing may not be what is termed an attractive nuisance--that is to say, may not have especial attraction for children by reason of their childish instincts--yet where it is so left exposed that they are likely to come in contact with it, and where their coming in contact with it is obviously dangerous to them, the person so exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them, from its being so exposed, and is bound to take reasonable pains to guard it, so as to prevent injury to them"; it being submitted that the said charge should have been qualified by stating that the owner must have known that children were likely to come into contact with the "dangerous thing" and that it must have been placed within their reach.

11. That the Presiding Judge erred in charging the Plaintiff's sixteenth request to charge, as follows: "It can scarcely be questioned at this time that in this State, at least, when one maintains upon his premises a dangerous instrumentality, which tends to attract the youthful instincts of children to use it for their amusement, a new duty is imposed upon the one maintaining such instrumentality, to wit: the duty of exercising ordinary care to prevent injury to them by coming in contact with it. In other words, he is required reasonably to anticipate the injuries that are likely to happen to them"; the error being in failing to qualify such charge by stating that it should have been brought home to the owner that the instrumentality did attract children to use it for amusement,--that the owner knew of such use and that he had placed the instrumentality within reach of children.

Hughes & Russell, of Union, and Elliott, McLain, Wardlaw & Elliott, of Columbia, for appellant.

Barron, Barron & Barron and John K. Hamblin, all of Union, and Mendel L. Smith, of Camden, for respondent.

BLEASE J.

This action for tort, tried in the court of common pleas of Union county, with Honorable Harry Hines presiding as special judge, resulted in a verdict of the jury in favor of the plaintiff for both actual and punitive damages; and from the judgment entered thereon, the defendant has appealed to this court.

By several of its fifteen exceptions, the appellant imputes error to the trial judge in refusing to grant its motion for a nonsuit, the motion for a directed verdict in its favor, the giving of certain requests to charge on the part of the respondent, the refusal to instruct the jury in some instances, as requested by the appellant, and the failure to grant the motion for a new trial.

A proper disposition of the exceptions relating to the refusal of the trial judge to grant a nonsuit, to direct a verdict in the appellant's favor, and the failure to give a new trial, will practically dispose of the entire appeal. So we turn first to the questions raised by these exceptions. To consider them, it becomes necessary to review the evidence in the cause. Our statement of it may appear to some to be "one sided." This is necessary because we are required here, just as it was incumbent upon the trial judge in the lower court, under the law, to give the respondent the benefit of any and all evidence in his favor. Since, in our opinion, the evidence set forth in the transcript of record seems to bear it out, we have borrowed freely, from the argument of the respondent's counsel, their summary of the facts disclosed, favorable to the respondent's case.

Claud Hart, the respondent, and his wife, Lula, the parents of Woodrow Hart, a minor of nearly nine years of age at the time of his death, lived with their five children, varying in age from five to fifteen years, in the industrial village of the Monarch Mill in the city of Union. In order to support the family, it was necessary for both to labor in the mill, the father working in the daytime and the mother at night, so that one could be constantly...

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