Keep v. Otter Tail Power Co.

• Citation: 277 N.W. 213,201 Minn. 475
• Decision Date: 31 December 1937
• Docket Number: No. 31294.,31294.
• Parties: KEEP v. OTTER TAIL POWER CO.
• Court: Minnesota Supreme Court

201 Minn. 475
277 N.W. 213

KEEP
v.
OTTER TAIL POWER CO.

No. 31294.

Supreme Court of Minnesota.

Dec. 31, 1937.

Appeal from District Court, Otter Tail County; Byron R. Wilson, Judge.

Action by Wayne Keep, a minor, by William W. Keep, his father and natural guardian, against the Otter Tail Power Company. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

Syllabus by the Court.

1. Those who transmit high voltage electricity are required to exercise a degree of care to guard against injury commensurate with the danger to be apprehended but are not insurers against injury.

2. Facts appearing in record and stated in opinion are held insufficient to fasten liability upon defendant within rule of Znidersich v. Minnesota Utilities Co., 155 Minn. 293, 193 N.W. 449.

3. Record does not warrant finding that place where defendant maintained its power line was playground for children, same being in location used for raising of cultivated crops and at time of plaintiff's injury used for pasture purposes.

Defendant's poles, upon which were strung high tension wires, were not, in view of facts stated in opinion, alluring, or peculiarly attractive, to children; and a slightly loose ground wire thereon was not, as plaintiff found it, a thing or instrumentality involving any inherent risk of injury, or probability of harm, to any one.

Defendant was not bound to anticipate or foresee that a boy would make material alterations in the wire peculiar and personal to his own purpose and as so changed to use it as a means of ascending the pole, thereby enabling him to come into contact with high tension wires nearly twenty-one feet above ground.

GALLAGHER, C. J., and PETERSON, J., dissenting.

Conmy & Conmy, of Fargo, N. D., and Field & Field, of Fergus Falls, for appellant.

Dell & Rosengren, of Fergus Falls, and R. J. Stromme, of Elbow Lake, for respondent.

JULIUS J. OLSON, Justice.

This was an action brought by Wayne Keep, a minor, by his father, to recover damages for injuries sustained on September 11, 1934, while climbing one of defendant's poles supporting high tension electric wires. We shall refer to the injured boy as plaintiff, and where we speak of his father

[277 N.W. 214]

shall refer to him as Mr. Keep. Defendant's motion for direction of verdict was denied. The jury returned a verdict for plaintiff. Defendant's motion for judgment notwithstanding was also denied. Thereupon judgment was entered, and defendant appeals therefrom. In this situation we have, under our decisions, but one question to determine, whether the evidence in the record sustains the verdict. We are not concerned with errors at the trial or excessiveness of verdict.

Defendant is engaged in the business of manufacturing, distributing, and selling electric current to its customers. For our purpose, we need only consider the particular pole upon which these wires were strung and with which plaintiff came into contact.

The situation can best be visualized by reference to a photostatic copy of Exhibit D, being the alleged offending pole, and its general surroundings, which we hereto append. The pole is in the foreground of the picture.

IMAGE

It will be observed that there are two cross-arms, the upper carrying two high tension wires, one at each end, fastened to insulators. The lower cross-arm carries but one wire. The wire at the top of the pole is not charged with electricity. Its only purpose is to conduct lightning, if and when striking the line, to a point thereon where it may be grounded. The three high tension wires are those appearing in the picture which have insulators. Each of these carries 40,000 volts. The ground wire connects with the static wire at the top of the pole, its purpose being to lead into the ground the interference that comes from lightning and thereby avoid harm to the electric wires. It is fastened to the pole by wire staples at intervals of about 30 inches. The pole on which the accident happened is approximately 28 feet in height above the surrounding ground. The lower cross-arm is almost 21 feet above the ground while the upper is approximately 3 feet higher. As will be seen, the lower cross-arm carries no wire to the east, i. e., to the right in the picture.

[277 N.W. 215]

This line was constructed something like 21 years prior to the time of accident and has been used for its original purpose ever since. At this point of the line it is parallel with an old road infrequently used for travel at and immediately preceding the time of accident, the road having been relocated.

The Keep family resides upon a half section farm located some 4 1/2 miles to the north and east of the village of Herman. The particular pole here involved and others of similar type are located upon a portion of the farm occupied by the Keep family, and approximately 1/2 mile distant from the farm buildings. As the picture discloses, the locality is open farm land of the level type characteristic of that section of the state. The line of poles and wires strung upon them presents a familiar picture of what one sees everywhere in the open country in this state. That portion of the Keep farm upon which this line was built and maintained was a cultivated field and was so used in 1933, that being the year when the Keep family moved onto the farm, and was similarly used in 1934. In July a hailstorm struck that locality with such force as to make the harvesting of the crop there growing not worth while. Mr. Keep, in order to salvage what he could out of the damaged crop, herded his live stock upon this filed. The responsibility of herding the cattle so as to keep them out of a 10-acre tract of growing corn located less than a quarter of a mile away from this area was intrusted to the plaintiff, then past 12 years of age, and a younger brother, 8 years of age.

As will be seen, there is nothing in connection with this pole or any of the others located upon the Keep farm making them of any particular attraction to children any more than would any other pole of similar type. Plaintiff testified, and there was other testimony to the same effect, that around the butt of each of these poles there is a small area not available to the raising and harvesting of grain where farming is done by machinery; that these spots, because of weeds and grass growing upon them, furnish excellent cover for gophers and other rodents so that from these they may go forth on their many depredations; likewise, that pheasants lay their eggs and hatch them in such places; that the Keep children and others of the neighborhood would sometimes, in fact frequently during the summer season, resort to these places to play, hunt for pheasant eggs, and try their skill at catching of gophers. Nowhere in the record, however, is there any intimation that any child prior to the time of this accident had ever attempted to climb this or any other of defendant's poles.

On the day of accident plaintiff and his younger brother started out upon their job of herding the cattle shortly after the noonday meal. Plaintiff was riding a full-grown horse, his brother a pony. The boys were accustomed to playing with a rope which was used as a lariat or lasso. They practiced throwing the loop upon various objects. Plaintiff got the notion while riding his horse that he wanted to practice upon the lower cross-bar to see whether he could land the loop around it. He tried many times but failed. Finally, in order to bring himself closer to it, he stood upright on the back of his horse and from that vantage point sought to throw the loop around the end of this cross-bar. He finally succeeded in so doing, but the loop caught because there is a bolt extending through the cross-bar and the V-shaped support beneath. Try as he might, plaintiff was unable to loosen the rope. He then dismounted the horse and viewed the situation with the object in view of finding some means to reach his cherished rope. With a boy's ingenuity thus actively called into play, he discovered for the first time, although he claims to have seen and been around this pole numerous times theretofore, that the ground wire was not firmly attached to the pole; that the staples did not seem firmly to tie it into the pole. The lower staple was only a short distance, perhaps 30 inches, above the level of the ground. He pulled the slack in the wire, something between 5 and 6 inches, into a loop above the staple so as to afford a toe-hold on his way up. Plaintiff's own version of how he ascended the pole is perhaps best told in his own language thus (examined by his counsel):

‘Q. How did you climb the post? You tell the jury. A. Well, I took my left hand and pulled the wire out and took my left foot and stuck it in and put my arm on the post, this arm (indicating).

‘Q. When you say ‘this arm’ which arm do you mean? A. The right. And pulled with my foot and pulled with my arm and pulled up, and after I got up again I let go with my arm and pulled the wire out and stuck my foot in there and then pulled up higher and pulled it out again.'

[277 N.W. 216]

In this fashion he ascended the pole, stopping at each staple and shaking his rope in the hope of unfastening it from the cross-arm. He failed to accomplish that purpose and ultimately came in contact with the high voltage wire, causing the injuries for which the jury by its verdict awarded him compensation.

1. The general rule...