Johnston v. New Omaha Thompson-Houston Electric Light Company
| Decision Date | 16 October 1907 |
| Docket Number | 14602 |
| Citation | 113 N.W. 526,78 Neb. 27 |
| Parties | JAMES W. JOHNSTON, APPELLEE, v. NEW OMAHA THOMPSON-HOUSTON ELECTRIC LIGHT COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
REVERSED.
A reargument has been heard in this case because a motion for a rehearing complained of certain misstatements of fact in the former opinion, ante, p. 24. The opinion says that at the time of the happening of the injury in suit the defendant was not aware that its wire was without insulation at the point of contact therewith by the plaintiff's son and was at that time without knowledge of a previous injury therefrom to another boy. Both these statements are erroneous, but to what extent either is material may be a subject of debate. The second of them is better described as inaccurate than erroneous. It is not shown what was the age of the boy formerly hurt, or how or in what circumstances the mishap took place, or that it was such a one as would reasonably have been anticipated to recur. It was these matters upon which the mind of the writer of the opinion dwelt and to which he intended to give expression. There is in our view, nothing in the nature of an electric light wire placed eighteen or more inches outside a public way and defended by a substantial fence four feet high, which would lead a person to suppose that it is attractive to children of tender years as a plaything, and there is no evidence that the defendant knew or apprehended the wire in question to be so. Decided cases involving the right of children of tender years, or their parents or guardians, to recover for the consequences of negligent injuries fall into several classes. One of them is of those instances where the child is employed or is rightfully present in a place of danger, and does or omits an act or acts which in a person of mature years and ordinary experience and intelligence would be admittedly negligent, but for which conduct the child, on account of his supposed lack of these qualities, is either absolutely excused, as a matter of law, or the degree of his incapacity or lack of discretion, and consequent irresponsibility, is left to the jury as a question of fact. The line of discrimination between these two subdivisions, in one of which the injury is disposed of as a matter of law and in the other of which it is treated as a question of fact, is extremely obscure and uncertain, if there can be said to be any such distinct line, and its discovery in every instance is largely dependent upon the peculiar circumstances of the particular case, and perhaps upon the unconscious bias and preconception of the court who decides it. But with neither of these subclasses or with their definition have we anything now to do. Another class of cases is composed of instances in which the party by or on behalf of whom the complaint is made was not an employee or rightfully present, and was one toward whom the person owning the instrument inflicting the injury owed no duty, except to abstain from malicious or wanton misconduct. Ordinarily, in such cases, if the person injured is an adult, the question of negligence or of contributory negligence, properly speaking, does not arise; the trespasser assumes the risk of his own conduct, and no liability exists. But if the person injured is of immature years several questions arise, all of which, to justify a recovery, must be answered in the affirmative: First. Is the machine or appliance of such a character as to be generally known, or was it or should it have been known to the proprietor, to be likely to inflict the same or a similar injury if unguardedly dealt with? Second. Was it of such a character that a reasonably prudent man would have known, or did the proprietor in fact know, that it was of such a character as to attract or induce young and indiscreet persons to employ it as a plaything, in mental obliviousness, or nearly so, to their peril in so doing, or at least of the nature or degree of such peril? Third. Was the party injured of the description last given? Obviously the last question may be solved in one of two ways. Either discretion or indiscretion may be conclusively presumed, as a matter of law, from the age and experience of the child, or the...
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