Howard v. St. Joseph Transmission Co.

• Decision Date: 31 December 1926
• Docket Number: 25806
• Parties: James W. Howard, Jr., by Next Friend, James W. Howard, Sr., Appellant, v. St. Joseph Transmission Company
• Court: Missouri Supreme Court

289 S.W. 597

316 Mo. 317

James W. Howard, Jr., by Next Friend, James W. Howard, Sr., Appellant, v. St. Joseph Transmission Company

No. 25806

Supreme Court of Missouri

December 31, 1926

Appeal from Holt Circuit Court; Hon. Guy B. Park, Judge.

Affirmed.

Shultz & Owen for appellant.

(1) The pole and wires situated in the public highway within fifty feet of the swimming hole and place where children frequented for sport and play, constituted a dangerous instrument in an attractive environment. 20 R. C. L. p. 85, sec. 75; Zwidersich v. Minnesota Utilities Co., 193 N.W. 449; Hillerbrand v. Mercantile Co., 141 Mo.App. 132; Harris v. Elec. Light Co., 195 Mo. 628; Kribs v Light Co., 199 S.W. (Mo. App.) 261; Williams v Springfield Gas & Elec. Co., 274 Mo. 1; Thompson v City of Slater, 193 S.W. 971; Godfrey v. K. C. Line Co., 299 Mo. 472. (2) It is negligence to place an unattractive dangerous instrument in or near an attractive environment. In Edwards v. Kansas City, 180 P. 271; Consolidated E. L. & P. Co. v. Healy, 70 P. 884; Costanza v. Pittsburg Coal Co., 119 A. 819; Caruso v. Troy Gas Co., 138 N.Y.S. 279; Union L. H. & P. Co. v. Lunsford, 225 S.W. 741; Robertson v. Light & Power Co., 176 N.Y.S. 281; Talkington v. Power Co., 165 P. 87; Beckwith v. City of Malden, 253 S.W. (Mo. App.) 17; McKiddy v. Des Moines Elec. Co., 206 N.W. 815. (3) A child has the right to play in the street and in climbing a pole is not a trespasser. Williams v. Gas & Elec. Co., 274 Mo. 1; Kribs v. Light Co., 19 L. R. A. (N. S.) 1154, note; Beckwith v. City of Malden, 253 S.W. (Mo. App.) 205. (4) It is not essential that defendant could have anticipated the very injury complained of or that it could have anticipated that it would have occurred in the exact manner in which it did occur. Harrison v. Kansas City, 195 Mo. 628; Smith v. Railroad, L. R. 6 C. 20; Woodson v. Railway Co., 224 Mo. 704; Graney v. Railroad Co., 140 Mo. 98; Phillips v. Railway Co., 211 Mo. 419; Greer v. Railway Co., 173 Mo.App. 276; Schaaf v. Basket & Box Co., 151 Mo.App. 48; Cooper v. North Coast Power Co., 244 P. 671. (5) The defendant should be held to anticipate the dangerous conditions that existed because of the use made of the environment where the accident occurred, just as it is required to anticipate the use that may be made of the highway. In one it must anticipate danger through contact with the fishing pole or rod or hook and line, or by climbing, in the other he must anticipate danger through contact with the high load or moving house or derrick. Blackburn v. Railway, 180 Mo.App. 548.

Orestes Mitchell and W. H. Richards for respondent.

(1) The plaintiff's petition fails to state a cause of action against the defendant, and the court properly sustained defendant's demurrer. State ex rel. Light & Power Co. v. Trimble, 285 S.W. 455; State ex rel. v. Ellison, 281 Mo. 667; Kelley v. Benas, 217 Mo. 13; Buddy v. Terminal Railroad, 276 Mo. 276; Rallo v. Construction Co., 291 Mo. 221; Meehan v. Elec. Light Co., 252 Mo. 625; Shaw v. Ry. Co., 184 S.W. 1151; Seymour v. Stock Yards & Transit Co., 224 Ill. 579; N. Y.-N. H. Railroad Co. v. Fruchter, 260 U.S. 141; Mayfield W. & L. Co. v. Webb, 33 Ky. Law Rep. 909; Johnson v. Elec. Light Co., 78 Neb. 24, 17 L. R. A. (N. S.) 435; Charette v. L'Anse, 154 Mich. 304; Graves v. Water Power Co., 44 Wash. 675, 11 L. R. A. (N. S.) 452; Meyer v. Union Light, H. & P. Co., 151 Ky. 332, 43 L. R. A. (N. S.) 136; Trout v. Phil. Elec. Co., 236 Pa. 506, 42 L. R. A. (N. S.) 713. (2) The plaintiff was a trespasser the moment he left the road and climbed up on the property of the defendant, the pole in question. Mayfield Water & Light Co. v. Webb's Admr., 129 Ky. 395, 111 S.W. 712, 18 L. R. A. (N. S.) 179, 130 Am. St. 469; Carey v. Kansas City, 187 Mo. 715; Kelly v. Benas, 217 Mo. 13.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Plaintiff, a minor, sues by next friend to recover the sum of $ 100,000 for personal injuries suffered by him and alleged to have been caused by defendant's negligence. The petition charges:

"Plaintiff for amended cause of action, states that James W. A. Howard, Sr., is duly appointed next friend, for the purpose of prosecuting this suit; that the defendant herein is a corporation, duly incorporated and operating under the laws of the State of Missouri; that defendant, at all times herein, negligently operated and maintained a high-power electric service line, in a public highway; that said line consisted of three uninsulated electric wires, carrying a high voltage of electricity, to-wit, 11,000 volts, sufficient to cause death if allowed to pass through the human body; that said line was supported by poles about twelve inches in diameter, which were situated in and along a public highway and near the west line of the right of way of said highway, in Andrew County, Missouri, and near the town of Amazonia; that, at all times herein, there was a running stream of water that flowed in close proximity to the pole and line where the accident occurred, to-wit, about fifty feet; that there was no fence or barrier to mark the dividing line between the roadway and stream; that said running stream and the bank thereof and the public highway, at the point wherein the accident, hereinafter complained of, occurred, was a resort for children and boys of the village of Amazonia and of that locality, and was frequented by large numbers of the same, for the purpose of engaging in the sport of swimming, fishing and play; that the fishing was done with poles and rods and hooks and lines; that the children and boys in that locality drove and led cattle and horses to water in the stream and graze at said point, by way of said highway and across and under said wires; that one of said poles was located in the highway at the point where the accident occurred; that two large trees were located within close proximity to said pole and between it and the stream; that their branches extended over and among said wires; that said trees and poles, by reason of their environment and accessibility, were attractive to children and that they were likely to climb the same; that the children and boys, in going to and from the creek at said point, passed under said electric wires, and while engaged in the sport of fishing and swimming and play, they were around and under and about said pole and wires and trees, in large numbers, at all hours of the day;

"That defendant negligently attached to said pole a signal, or telephone wire, composed of two wires; that said wires were negligently attached to the pole by two wooden brackets or pegs, the upper end of each bore a glass insulator; that the brackets were about twelve inches long, nailed to the pole; that defendant negligently placed one above the other, on the same side of the pole; that the lower bracket was negligently placed about eight feet and six inches from the ground; that the top of the second bracket was negligently placed about two feet and five inches from the base of the first bracket; that the top of the second bracket was negligently placed about two feet and two inches from a heavy two-pronged metal bar, attached to the pole, which bar supported the three high powered electric wires; that said bar, at the lowest point, was negligently placed about thirteen feet and one inch from the ground; that defendant was negligent in placing said wires and brackets and bar in such close proximity to the ground and to each other, thereby rendering them accessible and attractive to boys and children, and dangerous; that said place was rendered dangerous by reason of all the facts and negligent acts heretofore stated, for the reason that said fishing hooks and lines were likely to become entangled in said wires, so situated in defendant's pole, and the boys were likely to climb said pole for the purpose of releasing said hooks and lines.

"Plaintiff further states that by reason of the signal wire being attached to the pole by brackets, instead of cross-arms, and that said brackets were so situated that children could stand upon the same and reach the high voltage wires above, rendered said premises dangerous; that defendant was negligent in not maintaining some kind of a barrier or danger or warning sign, at the aforesaid place.

"That, by reason of all the facts, heretofore stated, and by reason of all the negligent acts, heretofore stated, defendant was negligent in maintaining, within the attractive environments aforesaid, said pole and electric wires and signal wire, for the reason that they rendered said place dangerous; that, by reason of all the facts and negligent acts, heretofore stated, and by reason of the location of said trees, said pole and wires were attractive to children and rendered said place dangerous, since they were likely to climb the same; that by reason of all the facts and negligent acts, as heretofore stated, said fishing poles and rods, while being used as aforesaid, or while being carried in going to and from said place, were likely to come in contact with said high voltage wires and thereby injure said children.

"Plaintiff states that all of the facts and negligent acts, as heretofore stated in this petition, were known to defendant or could have been known by the exercise of the highest degree of care, in time to have remedied same.

"That on or about the 5th day of July, 1922, the plaintiff, an infant of tender years, to-wit, nine years old, was at said point and environment; that he climbed said pole for the purpose of releasing a hook and line from said wires and, in doing so, came in contact with the deadly wires, aforesaid, and received into his body from said wires sufficient electricity to produce the injuries hereinafter described.

"Plaintiff states that he, at...