James v. Wisconsin Power & Light Co.

• Decision Date: 02 March 1954
• Citation: 266 Wis. 290,63 N.W.2d 116
• Parties: JAMES et al. v. WISCONSIN POWER & LIGHT CO. (two cases).
• Court: Wisconsin Supreme Court

Page 116

63 N.W.2d 116

266 Wis. 290

JAMES et al. v. WISCONSIN POWER & LIGHT CO. (two cases).

Supreme Court of Wisconsin.

March 2, 1954.

Two actions commenced on September 12, 1951 and tried together are here for consideration. One was brought by Willard T. James, Sr. and the other by his minor son, Willard T. James, Jr. They arise out of injuries sustained by the boy when he climbed an electric transmission line tower of the defendant, came into close proximity to a high tension wire carried by the tower and received a severe electric shock.

Defendant maintains a high tension electric transmission line which traverses the towns of Fulton and Janesville in Rock County. Through the town of Fulton and to its southern extremity the line runs in a north-south direction. At the town line, between Fulton and Janesville, its course is changed to a southeast direction. At the town line stands tower No. 301, the one here involved. The tower stands in a farm field adjacent to the north extremity of a boy-scout camp, separated from the camp by a barbed wire fence, and about 1200 feet from the main lodge of the camp.

The tower is built of steel and is fifty-four feet high. It is made of four corner posts held together by cross and diagonal braces. The first crossbrace is six feet above ground, the second twelve. From the second crossbrace and on the southeast corner post is built a 'spike ladder' which extends upward twenty feet eight inches to the sixth crossbrace. From the sixth cross brace to the seventh, a distance of four feet, there is a ladder of the usual type. To reach the ladder it is necessary to walk from the corner post on the sixth cross bar. Two 'Danger-High Voltage' signs with letters two inches high were located on the first crossbar on opposite sides of the tower.

Extended from the tower are three outriggers, the lowest one of which, and upon which the boy testified he was sitting when the accident occurred, is thirty-seven feet from the ground. It extends outward four feet from the tower. There is attached to each of its outside corners an insulator three feet long at the bottoms of which insulators are fastened the high tension wires. The insulators are connected by an uninsulated jumper wire which hangs three feet below the level of the outrigger upon which the boy sat.

March 4, 1951 was a scout-gathering day at the camp. Willard and two or three hundred other boys were in attendance. He was fifteen years and eight months old, but mentally retarded about two or three years. In the middle of the day Willard and another boy, Gerry Block, wandered away from the camp buildings and into the area near the tower. They climbed through the barbed-wire fence to the tower. Willard said that he wanted to climb the tower to see where some of the other boys were playing. He 'shinnied' up the cross and diagonal braces to the second horizontal brace twelve feet above the ground. From that point he climbed the spike ladder on the corner post to the sixth crossbrace, crossed the brace to the ladder between the tower posts, ascended the ladder, and climbed out onto the braces of the lower outrigger.

When he had reached a point about half way up the tower he called to Gerry to come on up. Gerry told him that he did not want to and that he had better come down. Willard suggested again that Gerry come up, and said, 'you don't have to be chicken', or something to that effect. Gerry told him again that he did not think that it was safe, and suggested that he come down.

Willard while seated on the outrigger with his right leg dangling toward the jumper wire turned to look around, and as he did so he received an electric shock in his foot or leg. He testified that he did not touch the wire. Plaintiffs established, however, that current in the jumper wire might jump a distance of one or two inches.

Willard testified that he did not touch the wires because he was afraid that if he touched them he would receive a shock and that he thought that there was no danger unless he touched them. On a previous occasion he had started to climb another tower in the vicinity but returned to the ground when a bystander told him that it was dangerous. He testified that he did not observe the warning signs at any time on the day in question.

There is no testimony that any boys had ever climbed or played about tower 301. There is evidence that Willard once started to climb one of the other towers in the defendant's transmission line, and his father testified that he had seen some boys playing on a crossbrace on a tower in Janesville three years earlier and that once after that he saw another boy at a higher level on a tower. There is no testimony whatever that the defendant had actual or constructive notice that boys were attracted to tower 301 or any of its other towers of similar construction except that it appears that it received notice from the Public Service Commission on or about August 28, 1950 advising it that a nine-year old boy had been electrocuted on August 25th on a tower in the city of Madison.

All the answers to the questions of the special verdict were answered favorably to plaintiffs. On July 16, 1953 judgment awarding $5500 to plaintiff, Willard T. James, Jr. and $7846.81 to Willard T. James, Sr. was entered. Defendant appeals.

Schubring, Ryan, Petersen & Sutherland, Madison, Harry Knipp, Janesville, for appellant.

McWilliams & Steil, Janesville, for respondents.

GEHL, Justice.

Liability was asserted under the 'Attractive Nuisance Doctrine'. The rule is stated in Restatement, Torts, Volume 2, § 339:

'A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if

'(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and

'(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and

'(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and

'(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.'

This court has recognized the rule as the law of this state. Angelier v. Red Star Yeast & Products Co. 215 Wis. 47, 254 N.W. 351; Larson v. Equity Co-operative Elevator Co., 248 Wis. 132, 21 N.W.2d 253; Brady v. Chicago & Northwestern Ry. Co., Wis., 62 N.W.2d 415.

The jury found: (1) That the transmission tower was inherently dangerous to children at and in its vicinity; (2) that defendant should have realized that the tower was inherently dangerous to children at and in its immediate vicinity; (3) that the defendant knew or should have known that children were likely to trespass upon the premises and climb its transmission tower so as to expose themselves to the danger of the electric current in its transmission wires; (4) that Willard T. James, Jr. was of such youth, tender age or immaturity that by reason thereof he did not realize or discover the danger involved in climbing the tower and exposing himself to the electric current in the transmission wires; (5) that the defendant could reasonably have provided safe-guards to obviate the danger to children without materially interfering with the purpose of the transmission tower; (6) that the facts found in the previous answers were a cause which produced the injuries of Willard T. James, Jr.; (7) that Willard T. James, Jr. failed to exercise such ordinary care for his own safety as a child of his age, capacity, discretion, knowledge and experience should have exercised under the circumstances; (8) that such failure was a cause which produced the injuries; (9) attributed 55% of the causal negligence to the defendant and 45% thereof to Willard T. James, Jr.

Defendant relies principally upon Bonniwell v. Milwaukee L., H. & T. Co., 174 Wis. 1, 182 N.W. 468, a case involving a tower similar to that upon which Willard was injured, a boy eleven years and four months old, and other facts peculiarly similar to those presented here. The Bonniwell Case was decided after the attractive nuisance doctrine had been expressly rejected in this state. Zartner v. George, 156 Wis. 131, 145 N.W. 971, 52 L.R.A.,N.S., 129. The court in the Bonniwell Case cited it as one of the authorities for its conclusion. In Angelier v. Red Star Yeast & Products Co., supra, the rule of the Zartner Case, restated in Lewko v. Chas. A. Krause Milling Co., 179 Wis. 83, 190 N.W. 924 was expressly overruled and the rule of Restatement adopted. We have found no Wisconsin cases other than the Bonniwell Case in which the entire factual basis is similar in kind to that of this. We must judge this one upon its own facts and in recognition of the fact that the court has accepted the attractive nuisance doctrine.

In an annotation and digest of cases dealing with the precise question it is said:

'In the majority of cases considering the question such a tower or pole has been held not to be such an attractive nuisance as to render the owner liable for injury to, or death of, a child while climbing on the tower or pole.' 6 A.L.R.2d 759.

And at page 779 of the same annotation:

'The commonest factor weighted by the courts in determining liability for the injury or death of a child while on an electric tower or pole is the manner of its construction, and more...