Olson v. Ottertail Power Co.

• Decision Date: 22 June 1933
• Docket Number: No. 9529.,9529.
• Citation: 65 F.2d 893
• Parties: OLSON v. OTTERTAIL POWER CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

65 F.2d 893 (1933)

OLSON v. OTTERTAIL POWER CO. et al.

No. 9529.

Circuit Court of Appeals, Eighth Circuit.

June 22, 1933.

Harry E. Dickinson, of Minot, N. D. (E. R. Sinkler, G. O. Brekke, and George A. McGee, all of Minot, N. D., on the brief), for appellant.

E. T. Conmy, of Fargo, N. D. (Conmy, Young & Conmy, of Fargo, N. D., on the brief), for appellees.

Before STONE and WOODROUGH, Circuit Judges, and MUNGER, District Judge.

MUNGER, District Judge.

The plaintiff, Ray Olson, a minor, brought suit against the defendant for personal injuries resulting from the alleged negligence of the defendant. There was a trial to a jury, and a verdict for the defendant was directed at the close of the plaintiff's evidence. The plaintiff has appealed from the resulting dismissal of his case, and alleges error in the direction of the verdict. The question presented is the sufficiency of the evidence to show negligence of the defendant. The defendant maintained on leased ground in the city of Devils Lake, N. D., in connection with its business of producing and transmitting electricity, a transformer plant or substation inclosed in a yard surrounded by a substantial fence of mesh wire, with a further protection of barb wire at the top of the fence. In this fence was a gate of similar construction, eight feet wide and seven feet high, which was usually kept locked. Inside the yard there were several tall upright structures consisting of steel girders supported by steel columns. On the ground under these girders were a number of cement blocks, and on these blocks there stood a series of cylinders or shells, inside of which were the coils and connections constituting electrical transformers. Wires led from the top of the transformers through a series of insulators to the structure above.

The plaintiff, who was then a boy seven years and four months old, accompanied by his cousin, a boy eleven years old, entered the yard of this substation through the gate, which temporarily had been left open. They proceeded to one of the cement blocks, and both of the boys climbed to the top of the block and stood up along the side of the shell which was placed on that block. The plaintiff reached up with his hand above the top of the shell, and it came in contact with an electric current, and he was badly burned. The plaintiff seeks to recover damages because of this injury upon the grounds that the defendant was negligent in failing to keep the gate closed, in failing to guard and insulate the transformer, and in constructing the transformer plant so that it could be touched by persons in the yard. The defendant denied any negligence on its part.

From the evidence it appeared that the two boys had approached this yard by some commonly used paths or roads. The direct testimony as to what then happened is given in the testimony of the two boys. The older boy testified that they saw some wires and "something brown on the top" inside of the fence, that they walked in the open gate, and that they stood up on the cement block. He further testified that the plaintiff climbed higher than he did and touched a wire, when a big shock occurred with a noise like the report of a gun, and smoke appeared, and the plaintiff fell down. The plaintiff's own testimony was that they went into the yard through the gate, and that after he was inside the fence he saw a "shiny thing" on top of a pole, and that he went over to it and climbed up pretty high on the cement block and that he thought he touched a live wire then. There was testimony by other witnesses tending to show that the plaintiff touched some point of electrical contact six and a half to nine feet above the ground, and at a point above the top of the shell, and that the "shiny" object referred to in the boy's testimony was probably one of the insulators above the transformer. There was undisputed testimony by the manager of the defendant's plant that the purpose of the fence was to keep out intruders who might tamper with the plant and that no one could get hurt by walking into the yard or by touching any of the appliances in it, which were within reaching distance. There was testimony that there were two signs on the outside of the fence and one inside which rested against one of the transformers. The signs were large, and on them was printed in red letters, "Warning, 3000 Volts. Keep out. Danger." The older boy testified that he read the signs on the fence and knew that he might get a shock and be hurt if he went inside the fence, and that he knew that he had no business to go inside the fence. The plaintiff at the time of the trial was nine years old and in the third grade in school. He testified that he did not know why he went into the yard; that he saw the fence around it; that he knew that there were live wires there before he went in; that he knew that with the fence around there he should not go in; and that he saw some signs there telling him to keep out.

The plaintiff sought a recovery in this case under the rules of law discussed in many cases such as Sioux City & P. Railroad Company v. Stout, 17 Wall. 657, 21 L. Ed. 745; Union Pacific Railway Co. v. McDonald, 152 U. S. 262, 14 S. Ct. 619, 622, 38 L. Ed. 434; United Zinc & Chemical Co. v. Britt, 258 U. S. 268, 42 S. Ct. 299, 66 L. Ed. 615, 36 A. L. R. 28; Hardy v. Missouri Pac. R. Co. (C. C. A.) 266 F. 860, 36 A. L. R. 1.

One of the many forms in which this doctrine of liability has been stated is as follows: "* * * One who has that on his own premises, or who creates a condition on the premises of another, or in a public place, which may reasonably be apprehended to be a source of danger to children, is under a duty to take such precautions as a reasonably prudent person would take to prevent injury to children of tender years whom he knows to be accustomed to resort there, or who may, by reason of something there which may be expected to attract them, come there to play." 36 A. L. R. 38, note. By all the cases the basis of liability is negligence. In the case of Railroad Company v. Stout, supra, it appeared that a child was injured in playing with an unfastened railway turntable. The case was submitted to the jury to decide whether it was negligence to leave this appliance unlocked and unguarded. In Union Pacific Ry. Co. v. McDonald, supra, the facts were that a frightened boy ran over what appeared to be dead ashes, but what was in fact burning slack, and was injured. It was held that the defendant was guilty of negligence in failing to guard the slack by a fence, as required by a statute. The principle involved was illustrated in that case by a quotation from Bennett v. Railroad Company, 102 U. S. 577, 26 L. Ed. 235, as follows: "The owner or occupant of land, who, by invitation, express or implied, induces or leads others to come upon his premises for any lawful purpose, is liable in damages to such persons — they using due care — for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him, and not to them, and was negligently suffered to exist, without timely notice to the public, or those who were likely to act upon such invitation."

There are many other cases which show that the basis for recovery under this doctrine is not the mere injury to the child by the maintenance of the dangerous agency at a place where children may resort for play and may be attracted to meddle with it, but it is the failure to take proper precautions, under the circumstances, to prevent the danger. Atlanta & W. P. R. Co. v. Green (C. C. A.) 246 F. 676; Barnhill's Adm'r v. Mt. Morgan Coal Co. (D. C.) 215 F. 608; Cahill v. E. B. & A. L. Stone & Co., 153 Cal. 571, 96 P. 84, 19 L. R. A. (N. S.) 1094; Follett v. Illinois Cent. R. Co., 288 Ill. 506, 123 N. E. 592; Price v. Atchison Water Co., 58 Kan. 551, 50 P. 450, 62 Am. St. Rep. 625; Lyttle v. Harlan Town Coal Co., 167 Ky. 345, 180 S. W. 519; Ball v. Middlesborough Town & Lands Co., 68 S. W. 6, 24 Ky. Law Rep. 114; Webster v. Corcoran Bros. Co., 156 Wis. 576, 146 N. W. 815; Routt v. Look, 180 Wis. 1, 191 N. W. 557; Kopplekom v. Colorado Cement Pipe Co., 16 Colo. App. 274, 64 P. 1047, 54 L. R. A. 284; Chicago, B. & Q. R. Co. v. Krayenbuhl, 65 Neb. 889, 91 N. W. 880, 59 L. R. A. 920; Baxter v. Park, 44 S. D. 360, 184 N. W. 198; City of Shawnee v. Cheek, 41 Okl. 227, 137 P. 724, 51 L. R. A. (N. S.) 672, Ann. Cas. 1915C, 290; Foster v. Lusk, 129 Ark. 1, 194 S. W. 855. In these cases as in Railroad Co. v. Stout, supra, and Union Pacific Ry. Co. v. McDonald, supra, the fact that the dangerous thing is left entirely unguarded may be negligence. It is obvious that the guarding of the dangerous object may be done by mechanical means, such as inclosure by buildings, fences, or by the use of locks. Or the guarding may be done by...