Republic Steel Corp. v. Tillery

• Decision Date: 13 May 1954
• Docket Number: 6 Div. 601
• Citation: 261 Ala. 34,72 So.2d 719
• Parties: REPUBLIC STEEL CORP. v. TILLERY.
• Court: Alabama Supreme Court

Page 719

72 So.2d 719

261 Ala. 34

REPUBLIC STEEL CORP. v. TILLERY.

6 Div. 601.

Supreme Court of Alabama.

May 13, 1954.

White, Bradley, Arant, All & Rose, S. M. Bronaugh and J. Reese Murray, Jr., Birmingham, for appellant.

Pointer & Hawkins and Jas. M. Fullan, Jr., Birmingham, for appellee.

The following charge was refused to defendant.

'9. I charge you that the plaintiff in this case was at most a bare licensee on the defendant's property at the time he claims to have been injured and that the defendant did not owe him a duty to exercise reasonable care to safely maintain the premises, and that the only duty imposed upon the defendant was not to set a trap or pitfall or wilfully or wantonly injure the plaintiff.'

PER CURIAM.

The plaintiff in this case, a boy sixteen years of age, recovered a judgment against defendant (appellant) for personal injuries caused by electricity on the premises of defendant. For some fifteen years defendant had maintained a high voltage (44,000 voltage) line across its property. This included an open field which for a long period defendant used as a dumping ground for refuse taken from its mining operations.

Plaintiff's evidence was all that was submitted. It showed that the wire line was constructed according to the requirements of the National Standard Electric Code, which provided for a clearance of seventeen feet as to pedestrians. The dump in question had a clearance of twenty-five feet when it was constructed. Slag was dumped under the wire in heaps in places as on other parts of the area. Plaintiff, in passing under this wire line over the top of one of the dumps with a metalic rod in his hand which rod was seven feet and five inches in length, was stricken with an electric shock and caused personal injuries. Photographs were introduced showing the place of the accident. The evidence does not show the clearance at that point; nor the height of plaintiff. It showed that there was an area around a line so charged called a corona which has electric power in it. But the space around the wire so affected is not shown. There was no other circumstance showing a dangerous condition.

Plaintiff and two other boys on this particular Sunday, December 30, 1951, went from their respective homes to a recreation place about a mile and a half away, called Dam Hollow, and had this metal rod, a sort of home made spear, which they used in play. It had a sharp point and the play was to cast it into some target. On their way back, about two P. M., they passed under this wire line over a dump pile when plaintiff received a shock while holding the metal rod in his hand. He was holding it out in front of him. There was no evidence of other details as to how the accident occurred. There was evidence of a path at this place used by boys and others going on beyond for their own pleasure; and especially used by children of defendant's employees and others who lived in that area. This included members of plaintiff's family. Plaintiff testified that he was running over the dump pile of slate, but he did not know whether he touched the wire. He had frequently been along there; and the dump pile had been used by some of the boys as a playground. The photographs offered in evidence show that it was not suitable as a general playground or that it had been so used. It was just a pile of debris upon and around which bushes had grown. But these boys were not there to play and did not play on that occasion. They were simply passing along on and about a path over the area of land belonging to defendant. It had been so used for several years. The dump heap had gradually risen in height, but had not been used recently for dumping. It was apparently not suitable for use by the boys except to pass over it and for such playing as throwing and jumping. The accident did not result from playing there, but only from plaintiff with a metal rod in his hand running over it in returning home.

The plaintiff, sixteen years of age, was in the twelfth grade at school and evidently of ordinary intelligence. It does not appear that he was living on defendant's property or had any particular right or invitation to pass over this property. The jury could find that he was a licensee. Golson v. W. F. Covington Mfg. Co., 205 Ala. 226, 87 So. 439.

The question here is whether defendant owed plaintiff a duty to have those wires insulated at that point, for they were not, or to have a greater clearance between the wire and the dump heap, or to have used other preventive measures.

We have had various wire line cases where children and others were injured from uninsulated wires. Some of them were held to show a breach of duty, Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224; Byars v. Alabama Power Co., 233 Ala. 533, 172 So. 621, and some to show an absence of such breach. Moseley v. Alabama Power Co., 246 Ala. 416, 21 So.2d 305; Littleton v. Alabama Power Co., 243 Ala. 492, 10 So.2d 757; Alabama Power Co. v. Cooper, 229 Ala. 318, 156 So. 854; Golson v. W. F. Covington Mfg. Co., 205 Ala. 226, 87 So. 439; Sheffield Co. v. Morton 161 Ala. 153, 49 So. 772. Those cases and others relate also to the principle of an attractive nuisance which resulted favorably to defendant. Luallen v. Woodstock Iron & Steel Corp., 236 Ala. 621, 184 So. 182; Williams v. Bolding, 220 Ala. 328, 124 So. 892; Ford v. Planters' Chemical & Oil Co., 220 Ala. 669, 126 So. 866; Thompson v. Alexander City Cotton Mills, 190 Ala. 184, 67 So. 407.

There is no application of the attractive nuisance or turntable cases where the danger is obvious and patent. Luallen v. Woodstock Iron & Steel Corp., supra; Williams v. Bolding, supra; Ford v. Planters' Chemical & Oil Co., supra. That principle is not supported unless defendant has on his premises a condition which is naturally attractive to children at that place and is likely to be dangerous to such a person in the ordinary course of events, all of which is known to defendant and not to the injured person and not obviously dangerous in itself; that there was no warning of the danger given; that the injured person responded to that attraction and went to the place by reason of it and was injured there by pursuing a course of conduct which was to be anticipated in the ordinary course of events. It is not necessary in the exercise of due care to guard against results which should not be reasonably anticipated. Authorities supra.

The locus here involved cannot be classed as an attractive nuisance, and appellee does not so claim in brief. But regardless of whether it is so, there may be a condition created upon a person's premises "where it is so left exposed that they [children] are likely to come in contact with it and where their coming in contact with it is obviously dangerous to them, the person so exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them from its being so exposed, and is bound to take reasonable pains to guard it, so as to prevent injury to them." Thompson v. Alexander City Cotton Mills Co., supra, 190 Ala. at page 191, 67 So. at page 410. And in Sheffield Co. v. Morton, supra [161 Ala. 153, 49 So. 774], it is said: 'Every theory of negligence works around to the question whether some one did or failed to do what a reasonably prudent and competent man would be expected to do under given circumstances. In determining what precautions were reasonably necessary and incumbent upon the defendant in the use of its property at the place in question, it must be held to have considered the known extent and nature of the use to which the place was customarily put by others than its owner.' Moseley v....