Mullen v. Wilkes-Barre Gas & Electric Co.
| Decision Date | 01 July 1910 |
| Docket Number | 209 |
| Citation | 229 Pa. 54,77 A. 1108 |
| Parties | Mullen v. Wilkes-Barre Gas & Electric Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued May 9, 1910
Appeal, No. 209, Jan. T., 1909, by defendant, from judgment of the Superior Court, No. 52, March T., 1908, affirming judgment of C.P. Luzerne Co., Oct. T., 1905, No. 530, on verdict for plaintiff in case of Edmund Mullen, by his father and next friend, Festus Mullen, and said Festus Mullen, each in his own right, v. Wilkes-Barre Gas & Electric Company. Affirmed.
Trespass to recover damages for personal injuries. Before LYNCH, P.J.; see 38 Pa.Super. 3.
The facts appear in the opinion of the Superior Court, by HEAD J., as follows:
The defendant corporation was engaged in furnishing electric light to the borough of Ashley. Its high tension current was carried through the streets by overhead wires strung on poles, which, on Main street, were located in or near to the sidewalk. At some little distance from the curb, in the sidewalk along that street, there stood a horse-chestnut tree. It seems to be conceded that the defendant had no property right of any kind in the tree or the premises on which it stood. Two of its wires, however, passed through the upper branches of the tree. The testimony practically established that the insulation of at least one of these wires had become worn away and that for a period of from four to six months before the accident, sparks were emitted by the contact of wire and branches, especially during wet or snowy weather. It also established that, in pleasant weather, the children of the neighborhood were accustomed to assemble about this tree to play, to climb into it in the progress of their sports and games, and, in proper season, to secure the nuts it bore.
On a summer afternoon the plaintiff, a boy of tender years, was playing, with some companions, about the tree and climbed up among the branches. Whether any part of his body came into actual contact with the live wire is not made clear, but there is no room to doubt that he received an electric shock of such intensity as to render him unconscious. His body being supported by the forks of the tree, he did not fall and, aid coming quickly, he was lifted down to the sidewalk where an examination disclosed marks, as of burns, at several places on his body.
The record, as the case comes to us, does not require any discussion as to the extent of his injuries; it is sufficient to say that after his recovery this suit was brought and the trial resulted in a verdict and judgment in his favor.
It was not contended in the court below, nor is it here, that the doctrine of contributory negligence has any application to the case on account of the tender years of the plaintiff. It was not denied there, nor is it here, that, under the evidence, the defendant would be visited with at least constructive knowledge of the dangerous condition of its wire, and that, had an injury resulted therefrom to one, towards whom, at the time and place of the injury, the defendant owed any legal duty in respect to the condition of its wires, its responsibility would be made out. The single proposition urged upon us in the able printed brief of the appellant is that, conceding the obligation of the defendant to keep its wires safe as to those lawfully using the streets and sidewalks in the ordinary and usual way, as well as to those who, in the performance of some duty or the exercise of some right, might be required to approach them; no such obligation existed as to those, although children of immature age, who in the pursuit of pleasure or adventure, voluntarily placed themselves in dangerous proximity to its wires stretched twenty feet above the ground. Many cases are cited as supporting this position, among them Thompson v. R.R. Co., 218 Pa. 444, and those therein reviewed. But all of these may be broadly distinguished from the case at bar because they dealt with situations where the plaintiffs were trespassers, or at most mere licensees upon the property of the defendants. Here, as we have already observed, the tree was the private property of the owner of the premises on which it grew and the children seem to have enjoyed, at least the permissive right from that owner, to play in its branches and gather the nuts they bore.
The plaintiff, therefore, in climbing the tree, was in no sense committing any trespass or infringement upon any right of the defendant; nor did his act need the aid of any invitation, permission or license from the latter to keep it in the category of wholly innocent acts. Had the tree been an apple tree bearing luscious fruit and, had the owner, whilst picking that fruit, received the same injury as did the plaintiff here, could the defendant successfully contend it owed him no duty in respect to the condition of its wires? If the owner, instead of gathering his fruit himself, had expressly invited and authorized the plaintiff to take it for his own use or for distribution among his fellows, would the situation be materially different? Or can it be that the yoke of responsibility would be lifted from the shoulders of the defendant if the permission of the owner was general, to the boys of the neighborhood, rather than particular to one of them; was implied from his conduct rather than expressed in words?
Is it true in such cases, or in the case at bar -- if the supposed ones are not ejusdem generis -- the defendant owed no duty whatever, in respect to the condition of its wires, to this plaintiff or to other children who were accustomed to use the tree as he did? In Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540, Mr. Justice MITCHELL defining the obligations of those who introduce into a community that dangerous agent known as electricity, said: "The company, however, which uses such a dangerous agent (a wire charged with an electric current) is bound not only to know the...
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