McCaffrey v. Concord Elec. Co.

CourtSupreme Court of New Hampshire
Citation114 A. 395
Docket NumberNo. 1656.,1656.
PartiesMcCaffrey v. CONCORD ELECTRIC CO.
Decision Date01 February 1921
114 A. 395


No. 1656.

Supreme Court of New Hampshire. Merrimack.

Feb. 1, 1921.

Exceptions from Superior Court, Merrimack County; Branch, Judge.

Case for negligence by John B. McCaffrey against the Concord Electric Company. Verdict for the plaintiff. The defendants excepted to the denial of their motion for a directed verdict, and to certain instructions to the jury. Exception sustained; verdict and judgment for defendants.

Murchie & Murchie and Alexander Murchie, all of Concord, for plaintiff.

Streeter, Demond, Woodworth & Sulloway, of Concord (William N. Rogers, of Concord, on the brief), for defendant.

PARSONS, C. J. The plaintiff, a boy of 13 years, climbed a tree standing within the highway limits of a Concord street, in a race with another boy to reach a hornet's nest in the tree. After climbing some distance he stopped to observe the progress of his competitor, and while looking downward raised his hand above his head and grasped the defendants' wire, passing through the tree 20 feet above the ground, and received the injury for which suit is brought.

There is no evidence or suggestion that the defendants were not rightfully occupying the place where their wires passed for the transportation or transference of electricity by wire. It must therefore be assumed that the location of their poles, the number of their wires, and their height above the ground had been fixed by governmental authority. P. S. c. 81, §§ 1, 2. In accepting this location the defendants assumed the burden imposed by section 4 of the same chapter that—

"No poles, structures, or wires shall be so placed as to interfere with the safe, free, and convenient use of any highway for public travel."

As this duty is imposed upon the defendants by statute, it is unnecessary to refer to authorities declaring the obligation of those lawfully maintaining in public ways wires for the transmission of electricity to exercise care for the safety of the traveling public. 9 R. C. L. 1205.

There was evidence that it was mechanically possible, though commercially impracticable, to insulate wires carrying the voltage these did through a tree, so that one would not be injured by contact with them while climbing the tree. The expense of doing what may be necessary to prevent injury to others is not an absolute answer for failure to do so. Philbin v. Marlborough Elec. Co., 218 Mass. 394, 397, 105 N. E. 893. The plaintiff therefore had the right to invoke the judgment of the jury if his injury resulted from the breach of the defendants' duty to him as one of the traveling public. There is no contention that the defendants' wires

114 A. 396

as maintained on the day of the injury interfered in any way with the ordinary use of the highway for public travel. There was evidence that they were not so maintained as to render vertical travel through the tree in the competitive pursuit of hornet's nests, as the plaintiff was engaged when injured, safe, free, or convenient. The plaintiff's injury demonstrates that use of the wires in aid of such pursuit was extremely dangerous.

The fundamental question, therefore, is whether the plaintiff when injured was in the exercise of the public right of travel, so as to claim the protection of the duty toward travelers imposed by the statute and the common law. "Travelers have the right to do all acts reasonably incident to a viatic use of the way." What acts are reasonably incident to a proper use of the highway is a question of fact. Lydston v. Rockingham County Light & Power Co., 75 N. H. 23, 24, 70 Atl. 385, 21 Ann. Cas. 1236. If the public right embraces some right in the tree the question should at least have been left to the jury. Reasonable men might conclude that traveling 20 feet in a vertical direction with no purpose of onward progress was not making a viatic use of the way. But the plaintiff, as a member of the public, had no greater right in the tree than was taken for public use.

"As the power of public domain is the public power of buying what is necessary for public use, and as a piece of land, including the fee, is not taken by that power when an easement is all the public needs, a highway taken by that power is not a public pasture, but a public way. The grass is a part of the land, and, with the soil and rocks, remains the property of the landowner, subject to the public right of way." Varney v. Manchester, 58 N. H. 430, 432 (40 Am. Rep. 592).

Trees by the roadside, unless springing up fortuitously, are planted for shade or ornament. Generally they are the property of the adjoining landowner. In the absence of evidence transferring the title out of him, it is to be assumed such trees are his property. In him is vested the right of property and of beneficial enjoyment. The public has no right to the trees or to use them, even if necessarily removed, to construct or maintain the way. For any interference with bis possession or right of possession in such trees the adjoining owner has his action. Bigelow v. Whitcomb, 72 N. H. 473, 57 Atl. 680, 65 L. R. A. 676; Baker v. Shephard, 24 N. H. 208.

Assuming that climbing trees in sport, utilizing them as a gymnasium provided by nature, is a reasonable use of a tree, such use is a part of the beneficial enjoyment of property ownership in the tree which was not taken from the owner by the public. As the public did not take from the owner the potentiality of the tree for use for gymnastic evolutions, the plaintiff, as one of the public, had not the right to the personal enjoyment of such use. As the evidence discloses no breach of duty to the traveling public, there was no negligence toward the plaintiff as one of the public. The plaintiff shows no other relation to the tree. He did not own the tree, or the land on which it stood, or the lot adjoining the highway. There was no evidence he was climbing the tree in exercise of the proprietary right of the adjoining owner by his request or express or tacit permission. He had no right in the tree unless his infancy as matter of law gave him the right to go wherever his childish fancies might lead him. This latter proposition appears to be the law in some jurisdictions, but is not the rule here. Devost v. Twin State Gas & Electric Co., 79 N. H. 411, 109 Atl. 839.

"An electric company maintaining a dangerous wire through, on, or near a tree is bound to anticipate that persons may lawfully climb a tree, aud it is required to exercise care to prevent injury to such persons from its wire." Curtis, Law of Electricity, § 512.

Understanding by "such persons," persons who "may lawfully climb a tree," this sentence correctly states the law. The later sentence of the section quoted in the plaintiff's brief, "The courts recognize that children are apt to climb trees and impose upon electric companies the burden of using due care to keep their wires insulated in places where children, when climbing a tree, will come in contact with them," can be sustained as a statement of law only upon the theory that children have the legal right to climb all trees that they are able to climb. The cases cited by the plaintiff where, upon facts substantially similar to the present, recovery has been permitted, all stand upon the conclusion, upon one ground or another, that the climber was rightfully in the tree. When such is the fact failure to exercise care in the maintenance of electric wires is evidence of a breach of duty toward the climber, if such use of the tree is reasonably to be anticipated. The cases cited are rested either upon a permissive right from the owner of the tree (Mullen v. Wilkes-Barre Gas, etc., Co., 229 Pa. 57, 77 Atl. 1108), a different view of the public right in the street (Temple v. McComb, 89 Miss. 1, 42 South. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. 924; Benton v. Public Serv. Com., 165 N. C. 354, 81 S. E. 448) from what is here entertained, or the rule which was rejected in this state in Frost v. Railroad, 64 N. H. 220, 9 Atl. 790, 10 Am. St. Rep. 396. If the manner in which the defendants maintained their wires was a breach of duty owed by them to any who might rightfully climb the tree, such persons would have an action for their injury. See Philbin v. Marlborough Electric Co., 218 Mass. 394, 105 N. E. 893; McCrea v. Beverly Gas & Electric Co.,

114 A. 397

216 Mass. 495, 104 N. E. 365. In these cases the parties injured were lawfully engaged in removing moth nests, and climbed the trees for that purpose. But the failure of the defendants to use care which might render them liable for injury to those lawfully in proximity to their wires does not create liability as to, those there without right. Garland v. Railroad, 76 N. H. 556, 86 Atl. 141, 46 L. R. A. (N. S.) 338, Ann. Cas. 1913E, 924.

It is argued that if the plaintiff was a trespasser as against the owner of the adjoining lot he was not a trespasser as against the defendants. This argument overlooks the legal location of the defendants' wires through the tree. So much of the public right of way as was reasonably necessary for the defendants' use had been assigned to them. Any unauthorized interference with that right was a wrong against them. If the plaintiffs attempt to use the wire as an aid in climbing had resulted in property loss or other damage to them, instead of a personal injury to himself, they would have had an action against him for the damage. Buch v. Amory, 69 N. H. 257, 261, 44 Atl. 809, 76 Am. St. Rep. 163. In Daltry v. Media Electric, etc., Co., 208 Pa. 403, 57 Atl. 833, the defendants had no possession or right of possession of the premises where their wires caused injury to another trespasser. In Thompson y. Electric Co., 77 N. H. 92, 88 Atl. 216, the defendants' pole was in the highway without right, while there was evidence the plaintiff was making a viatic use of the way. Varney v. Manchester, 58 N. H. 430, 40 Am. Rep. 592; Devost v. Twin State Gas &...

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