The Consolidated Electric-Light and Power Company v. Healy

• Decision Date: 06 December 1902
• Docket Number: 12,801
• Citation: 70 P. 884,65 Kan. 798
• Parties: THE CONSOLIDATED ELECTRIC-LIGHT AND POWER COMPANY v. DANIEL HEALY et al
• Court: Kansas Supreme Court

70 P. 884

65 Kan. 798

THE CONSOLIDATED ELECTRIC-LIGHT AND POWER COMPANY v. DANIEL HEALY et al

No. 12,801

Supreme Court of Kansas

December 6, 1902

Decided July, 1902.

Error from Wyandotte district court; E. L. FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PERSONAL INJURIES -- "Attractive Nuisance" -- Liability of Owners. It is the law of this state that one who maintains on his premises what is called an "attractive nuisance," that is, a place which though patently dangerous to those of ordinary knowledge and prudence, is so enticing to others excusably lacking in intelligence and caution as to induce them to venture to it, is liable for resulting injuries to the latter; and the same rule applies to one who maintains in his own premises a dangerous instrumentality not in itself attractive, but placed in such immediate proximity to an attractive situation on the premises of another as to form with it a dangerous whole, notwithstanding the attractive situation on the other premises may not be of itself dangerous.

2. PERSONAL INJURIES -- Electric-light Company -- Defective Wires. An electric company laid its wires on the viaduct of a city street, outside but close to the traveled way, between which wires and way was a railing or balustrade over which small boys were in the habit of climbing and getting close to the wires. The wires were defectively insulated, of which fact and of the habit of the boys the company had knowledge. One of the boys, when in the act of climbing, was killed by coming in contact with the uninsulated wires. Held, that the company is liable.

Kagy & Horn, and Hutchings & Keplinger, for plaintiff in error.

Getty, Hutchings & Dean, for defendants in error.

DOSTER C. J. All the Justices concurring.

OPINION

DOSTER, C. J.:

The Consolidated Electric-light and Power Company was given permission by the city of Kansas City to carry its electric wires on a viaduct constituting a part of one of the streets. This the company did by stringing them on timbers projecting out from the side of the viaduct or bridge. There were a number of wires placed at distances of about a foot to several feet from the ends of the boards constituting the floor of the bridge. The sides of the bridge were guarded by an iron railing or balustrade several feet high, running, substantially speaking, over the ends of the boards constituting the bridge floor. However, many of the boards projected beyond, that is, outside the bridge railing. The electric wires alongside the viaduct were very defectively insulated, their insulating covers having rotted away in many places. This fact the company knew. Small boys were in the habit of climbing over the viaduct railing immediately by the electric wires. This fact the company also knew. Holly Healy, a boy about ten years old, and of the average intelligence and characteristics of boys of that age, climbed over the railing and came in contact with one of the electrically charged wires and was killed. It is probable that the moment before he had been standing, or rather, moving about on the projecting ends of the bridge boards or the projecting wire supports. Suit was brought by his parents to recover damages for his death. Judgment went in their favor in the court below, to reverse which error has been prosecuted to this court.

The matter principally discussed is the question of the company's liability under the circumstances stated. As to the boy, who was not at the time on the highway proper, but who was engaged in a dangerous sport immediately outside of it, was the company negligent...