Lewis Humphrey v. Twin State Gas & Electric Co.

• Decision Date: 05 October 1927
• Parties: LEWIS HUMPHREY v. TWIN STATE GAS & ELECTRIC COMPANY
• Court: Vermont Supreme Court

139 A. 440

100 Vt. 414

LEWIS HUMPHREY v. TWIN STATE GAS & ELECTRIC COMPANY

Supreme Court of Vermont

October 5, 1927

January Term, 1927.

ACTION OF TORT to recover for personal injuries resulting from accidental electrification of wire fence, with which plaintiff came into contact while hunting on premises of a third person, by sagging or falling thereon of defendant's high voltage power wire. Plea, general issue. Trial by jury at the April Term, 1926, Windham County Sherburne, J., presiding. At close of plaintiff's evidence, motion for a directed verdict was granted, and judgment entered on such verdict. The plaintiff excepted. The opinion states the case.

Reversed and remanded.

Carpenter & Clawson and Harold E. Whitney for the plaintiff.

Fitts & Miller and M. P. Maurice for the defendant.

Present WATSON, C. J., POWERS, SLACK, FISH, and MOULTON, JJ.

OPINION

POWERS

This is a tort action brought to recover for personal injuries sustained by the plaintiff from the accidental electrification of a wire fence with which he came in contact while hunting on the premises of one Thomas in the town of Brattleboro. The defendant is a corporation engaged in the business of generating and distributing electrical energy for heating, lighting, and power purposes. It owns and maintains a plant at West Dummerston, from which its transmission line, carrying a current of 11,000 volts extends to a substation in Brattleboro. This line ran along the right of way of the West River Railroad, but in the spring of 1925, the high water carried out a part of the roadbed, taking a section of the defendant's pole line with it. Thereupon, the defendant, having obtained Thomas' permission so to do, effected a temporary repair by stringing its wires on poles and trees across Thomas' woodlot, intending to rebuild its line on its former location as soon as the roadbed was repaired. In constructing this temporary line, a cross-arm was attached to a tree on the Thomas land near a barbed wire fence which separated that land from the railroad right of way. The wire, as strung by the defendant's servants, was attached by a tie wire to an insulator mounted on this cross-arm. On October 28, 1925, this tie wire broke, and the live feed wire which it held pulled off and sagged onto the wire fence charging it with a deadly current of electricity. On the day specified, the plaintiff and a companion named Brothers, were out hunting and passed over the Thomas land. They pursued a well-worn path or road which took them to the wire fence. They attempted to pass through or over this fence and came in contact with it. Brothers was instantly killed by the current, and the plaintiff was severely injured thereby. At the trial of the case below, at the close of the plaintiff's evidence, the defendant moved for a directed verdict, which motion was granted, and the plaintiff excepted. No question of contributory negligence or assumption of risk is involved, and it cannot successfully be claimed that the question of the defendant's negligence was not for the jury, because the doctrine of res ipsa applies, and proof of the escape of the current and injury therefrom made a prima facie case. Drown v. New England Tel. & Tel. Co., 80 Vt. 1, 13, 66 A. 801; Spinney's Admx. v. O. V. Hooker & Son, 92 Vt. 146, 154, 102 A. 53; San Juan L. & Tr. Co. v. Requena, 224 U.S. 89, 56 L.Ed. 680, 32 S.Ct. 399. And this rule is equally applicable, where as here, the injury comes from a sagging or fallen wire. Walter v. Baltimore Elec. Co., 109 Md. 513, 71 A. 953, 22 L.R.A. (N.S.) 1178; Snyder v. Wheeling Elec. Co., 43 W.Va. 661, 28 S.E. 733, 39 L.R.A. 499, 64 Am. St. Rep. 922; Diller v. Northern Cal. Power Co., 162 Cal. 531, 123 P. 359, Ann. Cas. 1913D, 908; Hebert v. Lake Charles, etc. Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Newark Elec. L. & P. Co. v. Ruddy, 62 N.J.L. 505, 41 A. 712, 57 L.R.A. 624.

The parties disagree as to the plaintiff's standing while he was on the Thomas land: The plaintiff says he was there by an implied license; the defendant says he was a trespasser. We do not stop to consider this question. He was not an invitee, and for the purposes of this discussion we will assume that he was a trespasser. Being such, he could recover nothing from Thomas for injuries resulting from the condition of the premises, though these existed through the latter's carelessness. This result follows from the fact that Thomas owed him no duty to keep the premises safe for his unlawful use. The defendant takes the position that, so far as the plaintiff's rights go, it stands in Thomas' position and can make the same defense that he could; that it owed the plaintiff no duty, and consequently any negligence proved against it is not actionable so far as the plaintiff can assert. Many cases sustaining this doctrine are to be found in the books. They are carefully collected and analyzed in the defendant's brief. Indeed, some say that the weight of authority is in favor of the rule contended for. However, upon careful consideration, we are unwilling to follow them. Traced to its source, the rule exempting a landowner from liability to a trespasser injured through the condition of the premises, is found to have originated in an over-zealous desire to safeguard the right of ownership as it was regarded under a system of landed estates, long since abandoned--under which the law ascribed a peculiar sanctity to rights therein. Under the Feudal system as it existed in Western Europe during the Middle Ages, the act of breaking a man's close was an invasion of exaggerated importance and gravity. It was promptly resented. It was under this system that the action of trespass quare clausum developed, beginning as a penal process, and so criminal in essence, and finally becoming a means of redressing a private wrong. Happily, in these more neighborly times, trespasses merely technical in character are usually overlooked or excused, unless accompanied with some claim of right. The object of the law being to safeguard and protect the various rights in land, it is obviously going quite far enough to limit the immunity to the one whose rights have been invaded. Nor does logic or justice require more. A trespass is an injury to the possession; and as it is only he whose possession is disturbed who can sue therefor, so it should be that he, alone, could assert the unlawful invasion when suit is brought by an injured trespasser. One should not be allowed "to defend an indefensible act" by showing that the party injured was engaged in doing something which, as to a third person, was unlawful.

Authorities sustaining this view of the law are not wanting. In Guinn v. Delaware & A. T. & T. Co., 72 N.J.L. 276, 62 A. 412, 3 L.R.A. (N.S.) 988, 111 Am. St. Rep. 668, a leading case on this side of the controversy, a boy was killed by coming in contact with a guy wire that had become charged with electricity. He was, at the time, on the premises of one Gulick, without right, so far as appeared. The action was defended on the ground that, being a trespasser where he was, the defendant owed him no duty any more than Gulick did. The recovery was sustained on the ground that if the boy was a trespasser on Gulick's land, "his wrong would be to the land-owner alone, not a public wrong, nor a wrong to the defendant"; and it was said therein that "no reason exists for extending this exemption to the case where the rights of the defendant have not been interfered with."

In Boutlier v. Malden Elec. Co., 226 Mass. 479, 116 N.E. 251, a case involving the liability of the defendant to one who was either a trespasser or bare licensee upon land not owned by either party, after quoting the language of the New Jersey court as last above recited, the court said: "If we assume that the defendant companies had a right to maintain their wires over the open space, the plaintiff might still be entitled to recover as her intestate has not been shown to have interfered with the rights of the defendant."

In Ferrell's Admr. v. Durham Trac. Co., (N. C.) 90 S.E. 893, L.R.A. 1917B, 1291, a sagging wire of the defendant caught a trespasser riding on the top of a freight car in the train of the Seaboard Air Line R. R. Co., and swept him to his death. Defense was made on the ground that the decedent was a trespasser on the car and therefore had no ground of action against the defendant. A judgment for the plaintiff was sustained on the ground that "an injured party is not barred of a recovery for a wrong done him because of the mere fact that he was, at the time, a trespasser upon the premises of a third person."

In Stedwell v. Chicago (Ill.), 130 N.E. 729, 17 A. L. R. 829, a boy climbed a latticed pillar supporting an elevated railway and came in contact with an electric wire belonging to the defendant, and was severely injured. Recovery was sustained on the ground that the plaintiff "was not a trespasser as to the plaintiff-in-error. So far as it was concerned, defendant-in-error was rightfully on the pillar."

In Nelson v. Branford Lighting & Water Co., 75 Conn. 548, 54 A. 303, a boy was killed by coming in contact with an electric wire which was strung over a highway bridge, from which he was about to dive into the river below. The defendant said he was a trespasser there, but a recovery was upheld on the ground that "as far as the defendant is concerned, the plaintiff's intestate was rightfully on the truss, and the defendant owed him the duty of not unnecessarily exposing him to dangers to life which reasonable care on its part could avoid."

In Lipovac v. Iowa Ry. & Lt. Co. (Ia.), 210 N.W. 573, a boy was killed by coming in contact with an electric wire while he was on the land of a third person. Defense was...