Haywood v. South Hill Mfg. Co. Inc

• Decision Date: 28 May 1925
• Citation: 128 S.E. 362
• Court: Virginia Supreme Court
• Parties: HAYWOOD. v. SOUTH HILL MFG. CO., Inc., et al.

128 S.E. 362

HAYWOOD.

v.SOUTH HILL MFG. CO., Inc., et al.

Special Court of Appeals of Virginia.

May 28, 1925.

Rehearing Denied June 20, 1925.

Error to Circuit Court of City of Portsmouth.

Action by Cecil Haywood, an infant, against the South Hill Manufacturing Company, Incorporated, and another. Verdict for plaintiff against the defendant named was set aside and judgment entered for both defendants, and plaintiff brings error. Reversed and rendered for plaintiff against the defendant named; otherwise affirmed.

Jas. G. Martin & Bro., of Norfolk, for plaintiff in error.

R. T. Thorp and Vonable, Miller, Pilcher & Parsons, all of Norfolk, and E. R. Williams, of Richmond, for defendants in error.

McLEMORE, J. The accident that gave rise to this suit occurred on the outskirts of the city of Portsmouth in a factory section where many of the streets exist only on the plats.

The South Hill Manufacturing Company, hereafter referred to as the box company, has a large manufacturing plant fronting on Douglas avenue and extending on both sides of Eighth street which extends through the plant though physically unmarked. Employees and others use this street at will, but as it is nothing more than a path with no improvements and with nothing to indicate where the sides of the street terminate and private property begins, it could not always be determined whether pedestrians were using the street or were upon private property.

In 1916 the Virginia Railway & Power Company erected for the box company a transformer station somewhere near the line of Eighth street for the purpose of making available electric current to be furnished by the power company and to be used in the operation of the box company. This station was built upon or very near the ground, and the public protected from any danger that might result from coming in contact with the deadly current of 11, 000 volts that passed through it, only by a wire fence constructed around it; the wire used being the ordinary fence wire in common use upon farms. The distance from the fence to the transformer was variously estimated at from the span of the hand, to 15 or 18 inches.

On the morning of the accident, Cecil Haywood, an infant of 11 years, was passing the transformer, having in his hand a piece of an old saw some 15 inches in length, which he had picked up in walking along the street or path. With this piece of saw, he thrust his hand and forearm through the wire fence, bringing some part of the saw in contact with the electrified part of the transformer, from which he received injuries sufficient in the judgment of the jury to justify an award of $3,000 against the box company, but as to the Virginia Railway & Power Company, a verdict for the defendant.

This verdict of the jury in so far as it related to the box company the court set aside, and under section 6251 of the Code entered judgment for the defendant, which action of the court, being excepted to, brings the case before this court for review.

The errors assigned are three in number:

"First. The court erred in setting aside the verdict and in entering final judgment against the plaintiff.

"Second. The court erred in allowing in evidence in favor of the Virginia Railway & Power Company, to exempt that company from liability, the contracts between that company and the South Hill Manufacturing Company, Incorporated, marked 'A' and 'B.'

"Third. The court erred in granting instruction X."

The first assignment of error presents for the court's consideration the major question in the case, namely: Whether or not the defendant box company is liable for injury to the child, Cecil Haywood, under the facts as they must be considered after a verdict by the jury in his favor.

It is seriously contended by plaintiff's counsel that the transformer was located in the street, and it may be conceded there is testimony sustaining this veiw. Whether the testimony of witnesses living in the neighborhood and frequently traveling along this street and passing the transformer almost daily, to the effect that they knew the street lines, and know the structure from which the child received the injury was partly built upon a public street, is to be considered in the face of a survey made by a competent and disinterested engineer, who demonstrates by measurements and a plat that the transformer is 3.5 feet north of the street, we do not deem it necessary to decide.

The street in question is an open unimproved space running through the plant of the box company without marks to indicate its limitations. Pedestrians walked along...