McKiddy v. Des Moines Electric Co.

• Decision Date: 19 January 1926
• Docket Number: 36954
• Parties: DAISY MCKIDDY, Administratrix, Appellee, v. DES MOINES ELECTRIC COMPANY, Appellant
• Court: Iowa Supreme Court

206 N.W. 815

202 Iowa 225

DAISY MCKIDDY, Administratrix, Appellee, v. DES MOINES ELECTRIC COMPANY, Appellant

No. 36954

Supreme Court of Iowa, Des Moines

January 19, 1926

REHEARING DENIED SEPTEMBER 21, 1926.

Appeal from Polk District Court.--JOSEPH E. MEYER, Judge.

Action for damages resulting from the death of plaintiff's intestate, who was killed by coming in contact with an electric wire on a pole belonging to the defendant. Verdict was returned for the plaintiff, and the defendant appeals.

Affirmed.

Bradshaw Schenk & Fowler, for appellant.

Holly & Holly, for appellee.

FAVILLE J. EVANS, STEVENS, VERMILION, and ALBERT, JJ., concur.

OPINION

FAVILLE, J.

Appellant operates an electric light plant in the city of Des Moines. Said plant is located upon the west bank of the Des Moines River, and in a closely built up part of the city. Appellant carries a portion of its electric current on a number of wires from said plant across the river eastward, and distributes the same to the part of the city lying east of the river. Upon the east bank of the river appellant maintains three poles, which carry a number of said wires. These poles are set upon property belonging to appellant, and immediately adjacent to the river bank. At the time of the injury in question, the middle one of the three poles was equipped with spikes driven on either side of the pole, as a ladder, and approximately eighteen inches apart, the lowest one of said spikes being about eighteen inches from the ground. About twenty-five feet above the ground on said pole was a cross-arm bearing insulators, to which were attached electric wires carrying heavy voltage. To the three poles were attached a number of guy wires, which extended from the upper part of the poles to the ground east of the poles. Immediately adjacent to the tract of ground upon which said poles were located, and south thereof, along the east river bank, extending to Grand Avenue, is a city park, which was used generally by the public. There was no line of demarcation or anything to indicate the boundary line between the north end of this park and appellant's tract of ground. The two tracts were open and uninclosed, and were used by the public indiscriminately. It was a common and frequent thing for the public to pass up and down the river bank across appellant's tract of ground. The record shows that children frequented the park in question, and played in the park and on or about the tract of ground belonging to appellant upon which said poles were located. A baseball diamond was located in the park not far from the poles in question. Appellee's intestate, at the time of the injury, was a boy somewhere between twelve and fourteen years of age, his exact age not being certain, under the record. The evidence shows that he was a precocious and unusually bright boy, in respect especially to reading and literary pursuits. His knowledge of physics or mechanics is shown to have been quite limited. He was an inveterate reader, mostly of books of adventure. Upon the day in which the injury in question occurred, appellee's intestate, with two boy companions of approximately a similar age, were fishing in the Des Moines River, and in the course of fishing they traveled along the east bank of the river, through the city park and upon the tract of land adjacent thereto belonging to appellant, upon which said electric poles were located. The boys were playing, loitering, and fishing, and did not at all times stay close together. Appellee's intestate was discovered seated upon a cross-arm of the middle pole, which was the one upon which the spikes, or handholds, were located. There is some dispute in the record as to exactly how appellee's intestate reached the position in which he was seen upon the cross-arm on this pole, it being the contention of appellant that the boy climbed up the north pole of the three referred to, which was a smooth pole. The jury, however, might properly have found, under the evidence, that the boy climbed the middle pole. A man who observed the boy upon the cross-arm shouted a warning to him, which, because of the distance and the roar of the waters, may not have been heard. about that time, the boy received an electric shock in some manner from the charged wires, in such a way as to cause his death. The exact manner in which the current of electricity was caused to enter the body of the boy is not altogether certain from the record, it being the contention of appellee that the boy came in contact with or near to an uninsulated guy wire, and that the current "jumped" from the electric wire and caused a circuit to pass through his body. In any event, the death was caused by a charge of electricity received by the boy while on the cross-arm, either by coming in contact with or in close proximity to a wire bearing a high-voltage current of electricity.

At the time of the injury, the ordinances of the city of Des Moines provided that any corporation maintaining any wire used to conduct electricity within said city should cause each pole upon which the wire was attached to be marked "dangerous." in black letters not less than three inches in height, on two sides of said poles. An ordinance also required that any corporation maintaining a guy wire attached to any pole which carried an electric wire should cause the guy wire to be kept effectually insulated at a distance of not less than nine or more than eleven feet from each end thereof. It is undisputed in the record that, at the time of the injury in question, the pole referred to was not marked as required by said ordinance, and it is also shown that the guy wires attached to said pole were not insulated in the manner required by the ordinance of the city.

At the close of the testimony, appellant moved for a directed verdict, which motion was overruled, and the cause was submitted to the jury. Appellant's motion for a directed verdict raised squarely the question that appellee's intestate, at the time of the injury, was a trespasser, and that appellant owed him no duty except the care due a trespasser. The court overruled the motion, and submitted to the jury the question of appellant's negligence in the maintenance of said pole.

I. The first question for our determination is the question of the legal relationship between appellee's intestate and appellant at the time of the injury. It is a universal and fundamental rule that anyone may use his own real estate for any lawful purpose, in so far as he does not interfere in any way with the rights of the public or of individuals. The duty which the owner of premises owes to a trespasser or mere licensee is discussed in the following and many other cases: Printy v. Reimbold, 200 Iowa 541, 202 N.W. 122; Flatley v. Acme Garage, 196 Iowa 82, 194 N.W. 180; Nelson v. Lake Mills Canning Co., 193 Iowa 1346, 188 N.W. 990; Masteller v. Chicago, R. I. & P. R. Co., 192 Iowa 465, 185 N.W. 107; Davis v. Malvern L. & P. Co., 186 Iowa 884, 173 N.W. 262; Heiss v. Chicago, R. I. & P. R. Co., 103 Iowa 590, 72 N.W. 787.

Under some circumstances, a property owner may be guilty of negligence in the use of his own premises in such a manner as to be liable to one who is technically a trespasser thereon. "Sic utere tuo ut alienum non laedas" is an ancient maxim, and it has been greatly extended in its application in more modern times. Starting with the English case of Lynch v. Nurdin, 1 Adolphus & Ellis (N.S.) 422 (1 Q.B. [1841] 29), there have been many cases, both English and American, that have recognized a liability for the negligent use of one's own property where injury resulted to one who was technically a trespasser. Originating with the so-called "turntable cases," the rule has been extended to other instrumentalities, until now the so-called "attractive-nuisance theory" is recognized by the majority of the courts of last resort of the United States. A number of courts still consistently refuse to subscribe to the theory as being sound in law. There has been great conflict in the decisions regarding the "attractive-nuisance" cases, and various reasons assigned for allowing or refusing recovery in such cases.

It is quite unnecessary that we enter into an extended review of the authorities pro and con on this question. In ...