Taylor v. United States, 10239.

• Decision Date: 13 April 1966
• Docket Number: No. 10239.,10239.
• Parties: Henry James TAYLOR, an infant, who sues by and through his mother and next friend, Gertrude Marie Taylor, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

360 F.2d 488 (1966)

Henry James TAYLOR, an infant, who sues by and through his mother and next friend, Gertrude Marie Taylor, Appellant, v. UNITED STATES of America, Appellee.

No. 10239.

United States Court of Appeals Fourth Circuit.

Argued March 9, 1966.

Decided April 13, 1966.

Elmer B. Gower, Springfield, Va., for appellant.

Jack H. Weiner, Atty., Dept. of Justice (C. V. Spratley, Jr., U. S. Atty., and MacDougal Rice, Asst. U. S. Atty., on brief), for appellee.

Before BRYAN, Circuit Judge, MARVIN JONES, Senior Judge,^* United States Court of Claims and CRAVEN, District Judge.

CRAVEN, District Judge.

Once again we consider this tort claim case on plaintiff's appeal from a judgment entered in favor of the government. Previously we thought it appropriate to vacate the judgment and remand for trial de novo for the reasons stated in Taylor v. United States, 326 F.2d 284 (4th Cir. 1963). Therein we recited the facts sufficiently to illuminate the problem, and it is unnecessary to do it again. See also Taylor v. United States, 213 F.Supp. 545 (E.D.Va.1963).

In its extensive memorandum of decision filed after the second trial, the district court failed and refused to conclude as a mixed finding of fact and law that the government was guilty of negligence. There was a finding that the government made no inspection of the fence or apron surrounding the transformer which would alone support a conclusion of negligence. Perhaps such a finding was inadvertent, because the weight of the evidence appearing in the record is to the contrary. We need not decide, because the court also found that the hole under the fence appeared to be man-made, and that there was no evidence of washing, erosion, or settling. It is plain the minor plaintiff dug out the hole under the fence to get in the enclosure and that he did so immediately before the injury occurred. The duty of the government to make inspections — even frequent inspections — does not include constant surveillance. An inspection prior to the incident would not have disclosed the hole under the fence. If there was failure to inspect, it could not have been the proximate cause or one of the proximate causes of the injury. The failure of the district court to conclude that the evidence discloses actionable negligence on the part of the defendant is not clearly erroneous.

Primarily, however, the district court based its decision on its conclusion that the plaintiff was barred by his own contributory negligence. At the time of the injury, plaintiff was some months past the age of seven years. In Virginia, children between the ages of seven and fourteen are presumed to be incapable of exercising care and caution for their own safety, and this presumption prevails unless rebutted by sufficient proof to the contrary. Grant v. Mays, 204 Va. 41, 129 S.E.2d 10 (1963). The defendant has the burden of overcoming this presumption unless contributory negligence is plainly disclosed by the plaintiff's own evidence. See Norfolk Southern Railway Co. v. Wood, 182 Va. 30, 28 S.E.2d 15 (1943).

On this phase of the case, the district court, 242 F.Supp. 759, found the facts to be as follows:

"The evidence in re this phase of the case discloses that the plaintiff was an above average student — that he was warned that this was an electric appliance and there was electricity there that could electrocute people — that he had been told to keep away from the place — that he had been inside the substation enclosure on at least three previous occasions — that he got inside the first time by climbing over the fence — that he was looking for an easier way to get in when he found the hole or depression under the fence — that both boys (Henry and his friend Roy) had to remove some rocks on each occasion when they crawled under the fence. Henry said it took him awhile to remove some gravel — that a pile of gravel some six or eight inches in height was found immediately following the accident a foot or two back from the hole `like it had been pulled out from under the fence.\'

"After getting inside the enclosure Henry had to climb up the framework some twenty feet before he came in contact with the hot wires. This, at a time when he was told by Roy he should not go up there, he might get hurt or fall."

Upon the foregoing findings of fact, the court adjudged the plaintiff to have been guilty of contributory negligence. Negligence and the capacity for it are questions of degree. The district judge was better positioned than are we to make the gradation judgment. It is neither appropriate nor necessary to determine whether we agree with his decision. It is enough that his determination is supported by substantial evidence and is not clearly erroneous.

Affirmed.

JONES, Senior Judge^*, United States Court of Claims (concurring in the result):

I cannot agree, in the circumstances revealed by the evidence in this case, that the plaintiff was guilty of such contributory negligence as can be legally treated as the proximate cause of the injury to the plaintiff.

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