Stark v. Holtzclaw

• Decision Date: 25 July 1925
• Citation: 105 So. 330,90 Fla. 207
• Parties: STARK v. HOLTZCLAW et al.
• Court: Florida Supreme Court

105 So. 330

90 Fla. 207

STARK v. HOLTZCLAW et al.

Florida Supreme Court

July 25, 1925

Error to Circuit Court, Escambia County; A. G. Campbell, Judge.

Action by Frederick Stark, by his next friend, Herman W. Stark against J. G. Holtzclaw, receiver of the Pensacola Electric Company, and another. Judgment for defendants, and plaintiff brings error.

Reversed.

Ellis J., dissenting.

Syllabus by the Court

SYLLABUS

Person responsible for natural and probable consequences of act reasonably foreseen. One is held responsible for all the consequences of his act which are natural and probable, and ought to have been foreseen by a reasonably prudent man. (Per Whitfield, J.)

Highest degree of care imposes duty to guard only against occurrences reasonably to be anticipated by utmost foresight. Even where the highest degree of care is demanded, still the one from whom it is due is bound to guard only against those occurrences which can reasonably be anticipated by the utmost foresight. (Per Whitfield, J.)

Liability of owner of premises for injuries to child attracted by character of structure or conditions, stated. An infant who enters upon premises, having no legal right to do so, either by permission, invitation, or license, or relation to the premises or its owner, is as essentially a trespasser as an adult; but if, to gratify a childish curiosity, or in obedience to a childish propensity, excited by the character of the structure or other conditions, he goes thereon, and is injured by the failure of the owner to properly guard or cover the dangerous conditions which he has created, the owner is liable for such injuries, provided the facts are such as to impose the duty of anticipation or prevision; that is, whether, under all of the circumstances, he should have contemplated that children would be attracted or allured to go upon his premises, and sustain injury. (Per Whitfield, J.)

Those using electricity bound to use care in proportion to danger. Electricity is an invisible force, highly dangerous to life and property, and those who make, sell, distribute, and use it are bound to use care in proportion to the danger involved. (Per Whitfield, J.)

Those transmitting electricity not insurers of safety. Electric companies or persons engaged in transmitting electrical current for use are not insurers of the safety of children or adults, and are not held to a degree of care, prudence, and foresight beyond which prudent and careful persons have to exercise in such circumstances. (Per Whitfield, J.)

Declaration held to allege cause of action for injury to child from contact with electric wire. Allegations that the defendant electric railway company did carelessly and negligently place electric wires of high and dangerous voltage and defective and worn insulation, between the limbs and through the branches and foliage of a magnolia tree, of great height and unmerous limbs and low hanging branches, on defendant's right of way directly across the track from defendant's depot or station and unfenced; that at the time and for many years there had been and was located a public primary school adjacent to said depot or station house and abutting the right of way boundary of defendant's electric railway which schoolhouse was in close proximity to said tree on the defendant's right of way and in plain view of the children in attendance at said school; that the school was in daily session attended by children of immature age and discretion; that the magnolia tree bore flowers in the spring of the year that would be attractive to children of immature age, all of which should have been known to the defendant that plaintiff, a boy eight years of age, a pupil attending said school, being attracted and allured thereto, climbed the tree to gather the flowers therein, and in doing so came in contact with and was injured by defendant's electric wires carrying high and dangerous current of electricity and passing through and among the branches and foliage of the tree--taken with other appropriate allegations, state a cause of action for compensatory damages for injuries sustained as a proximate result of the negligence alleged. (Per Whitfield, J.)

One may not maintain dangerous and unprotected agency, naturally attractive to children. Under common-law principles, one may not, even upon his own premises, maintain a dangerous and unprotected agency, naturally attractive to, and from which injury may reasonably be expected to result to, very immature children, even though they be licensees or trespassers, where their presence on the premises and exposure to the danger may be reasonably anticipated, and the children are too young to realize and appreciate the danger. (Per Brown, J.)

COUNSEL

George Earl Hoffman, of Pensacola, and Fred Cubberly, of Gainesville, for plaintiff in error.

Carter & Yonge, of Pensacola, and Peter O. Knight, of Tampa, for defendants in error.

OPINION

WHITFIELD J.

In an amended declaration filed by the plaintiff in error, it is alleged that electric companies operated lines of electric railway, and that----

The 'defendants in the operation of its said property suffered and permitted to remain upon its said right of way directly at and near a station on said Bay Shore Line, known as Patterson station, a magnolia tree, of great height and numerous limbs and low hanging branches; which said tree was on the right of way of said defendants, directly across the track from said depot or station and unfenced, and the said defendants in the maintenance and operation of its said electric line, and in the maintenance and operation of its said system of poles and electric wires, carelessly and negligently did string from one pole to another at said point and place electric wires of high and dangerous voltage and defective and worn insulation, between the limbs and through the branches and foliage of said magnolia tree, so situated on the right of way of said electrified railway of defendants; that at the times aforesaid, and for many years, there has been and was located a public primary school of the county of Escambia, Fla., adjacent to said depot or station house known as Patterson station and abutting the right of way boundary of defendants' said electric railway which said public schoolhouse was in close proximity to the said magnolia tree on the right of way of defendants' said electric railway and in plain view of the children at all times in attendance at said public school; that at said time the said public school was in daily session and then and there was a place frequented by school and other children of immature age and discretion; that the defendants knew, or by the exercise of due care and caution should have known, that the said magnolia tree in the spring of the year and at the time hereinbefore alleged would and did bear blossoms and flowers, and would be attractive to children, and that children of immature age, discretion, and experience such as were in attendance upon said public school would, in following childish instincts, be lured and tempted to climb said magnolia tree when bearing blossoms and flowers, as was said tree at the said time. Yet, the defendants well knowing that the said magnolia tree was so situated and growing as to be attractive to children, luring and tempting them to climb, carelessly and negligently strung, and suffered and permitted to be strung and pass through and near the limbs, branches, and foliage of said magnolia tree, uninsulated and defectively insulated wires carrying high and dangerous voltage, and carelessly and negligently failed to take any precaution or exercise any due care and caution to prevent children of tender years and immature discretion from climbing said tree to gather blossoms and flowers; and carelessly and negligently failed to exercise due care and caution to prevent injury to such children as might climb said tree to gather flowers by providing proper safeguards against contact with said electric wires by said children; and carelessly and negligently failed to prune said tree so as to keep the limbs, branches, and foliage of said tree a safe distance from said electric wires of defendant, as by the exercise of due care and caution the defendant should have done; and carelessly and negligently and without due care and caution, for a long time prior to and on May 12, 1922, the said defendants strung and suffered and permitted to remain, and did use, the said electric wires in the conduct of its said business, the said electric wires containing high and dangerous voltages, and did string and did suffer said electric wires to pass through and remain in the branches and foliage of said magnolia tree; that on the 12th day of May, A. D. 1922, the plaintiff, a boy of eight years of age, a pupil attending said school, immature and wholly ignorant of the danger lurking in and near the said magnolia tree, by reason of the aforesaid carelessness and negligent conduct and omissions of the said defendants while at the said station of the defendants, said depot or station being an unfenced place where school children with the knowledge and consent of the said defendants congregated after alighting from its said cars to attend the sessions of said public school and there to await the arrival of the time for morning report call in attendance at said school, said station or depot being then and there a public place known by the defendants to be frequented by the public and school children attending said public school adjacent to said depot or station, was attracted and lured to climb said tree and climbed the said magnolia tree for the purpose of gathering magnolia flowers growing on the branches and in the foliage of said magnolia tree, and in gathering said...