State v. Chesapeake & Potomac Tel. Co.

• Citation: 91 A. 149,123 Md. 120
• Decision Date: 19 March 1914
• Docket Number: 30.
• Parties: STATE to Use of STANSFIELD et al. v. CHESAPEAKE & POTOMAC TELEPHONE CO.
• Court: Maryland Court of Appeals

91 A. 149

123 Md. 120

STATE to Use of STANSFIELD et al. v. CHESAPEAKE & POTOMAC TELEPHONE CO.

No. 30.

Court of Appeals of Maryland

March 19, 1914

Appeal from Baltimore City Court; Carroll T. Bond, Judge.

Action by the State to the use of Amanda Stansfield, individually and as next friend of certain minor children, against the Chesapeake & Potomac Telephone Company. From a judgment sustaining a demurrer to the declaration, plaintiffs appeal. Affirmed.

Argued before BOYD, C.J., and BURKE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Arthur W. Machen, Jr., of Baltimore (Edward M. Hammond, of Baltimore, on the brief), for appellants.

R. Lee Slingluff and Shirley Carter, both of Baltimore (Bernard Carter & Sons and Marbury, Gosnell & Williams, all of Baltimore, on the brief), for appellee.

URNER J.

The appeal in this case is from a judgment entered on demurrer to a declaration which alleges, in substance, that the defendant company maintained in one of the highways of Howard county passing through Ellicott City, a series of poles supporting wires carrying electric current used for telephone and lighting purposes, and that one of the poles was located in front of the dwelling occupied by Harry Stansfield and his family; that projecting from this pole were iron spikes adapted and intended by the defendant for use in ascending the poles, and that the spikes, being conveniently arranged for such use, operated as an invitation to the public, and more particularly to the owners and occupiers of the abutting properties, to ascend the pole by means of the spikes whenever they might have occasion to do so for any proper purpose, and especially for the preservation of the life of animals or human beings, or for the recovery of personal property, and that, as arranged for such use, the spikes constituted also a representation that the ascent of the pole might be accomplished with safety; that the maintenance of such a series of spikes on a pole used for the support of wires carrying a high-tension current of electricity in a street or highway of an incorporated city was negligent unusual, antiquated, unnecessary, and improper; that on March 25, 1913, a kitten belonging to the said Harry Stansfield, and a favorite pet of his infant children, climbed said pole and remained thereon, and, his children being greatly distressed at the loss of the kitten, the said Harry Stansfield, relying upon said invitation and representation of the defendant, ascended the pole by means of the spikes for the purpose of recovering the kitten and satisfying his children; that on previous occasions, as the defendant well knew, various persons, including the said Harry Stansfield, had been accustomed to use the spikes to climb the pole in order to recover personal property, and for other purposes; that the defendant negligently permitted the insulation on certain of the wires attached to the pole and carrying a high-tension current of electricity to be insufficient although it appeared sufficient to persons who, like the said Harry Stansfield, were not familiar with electricity; and that the defendant neglected to warn him of the concealed danger, or to warn the public by sign or notice against climbing the pole by means of the spikes; that the said Harry Stansfield, in ascending the pole in reliance upon said invitation and representation of the defendants, and acting (as he reasonably supposed) in accordance with the intention of the defendant in placing the spikes on the pole, and being ignorant of the hidden danger caused by the insufficiency of the insulation and by the high-tension current, and without any fault or negligence on his part, accidentally came in contact with the insufficiently insulated wires, and in consequence of such contact was instantly killed. Upon the case thus stated the widow and children of the deceased seek to recover damages for the loss they have sustained by this unfortunate accident.

The injury for which the suit was brought having occurred to one who had reached the place of danger by climbing the pole maintained by the defendant for the very purpose of suspending the wires at a suitable and safe elevation above the highway, the question to be determined is whether the declaration shows any violation of duty on the part of the defendant with reference to a person thus situated. While the pole and wires were located on and over a public thoroughfare, they were the defendant's property, and were necessarily subject to its control in order that its obligations to the public might be performed, and that its own interests might be protected. The theory of the suit is that in providing a permanent and convenient means of ascent the defendant impliedly invited the public to use the pole for such purposes as the one which led to the accident. In our opinion, the principle of implied invitation is not applicable to the case presented. There was no community of interest between the defendant and the injured party which induced his visit to the place where he came in contact with the wires. The principle invoked does not apply to those who receive injuries on premises they have entered from motives which have no relation to the business or interest of the proprietor. Benson v. Baltimore Traction Co., 77 Md 535, 26 A. 973, 20 L. R. A. 714, 39 Am. St. Rep. 436; Kalus v. Bass, 122 Md. 467, 89 A. 731; Heskell v. Auburn Light, Heat & Power Co., 209 N.Y. 86, 102 N.E. 540; Plummer v. Dill, 156 Mass. 426, 31 N.E. 128, 32 Am. St. Rep. 463; Purtell v. Philadelphia Coal Co., 256...