Hay v. Memphis Light, Gas and Water Division

• Decision Date: 18 March 1968
• Parties: , 221 Tenn. 258 Thomas HAY, a Minor, by his Mother and Next Friend, Mrs. Minnie Hay, and Mrs. Minnie Hay, Individually, Petitioners, v. MEMPHIS LIGHT, GAS AND WATER DIVISION et al., Respondents.
• Court: Tennessee Supreme Court

Page 182

426 S.W.2d 182

25 McCanless 258, 221 Tenn. 258

Thomas HAY, a Minor, by his Mother and Next Friend, Mrs Minnie Hay, and Mrs. Minnie Hay, Individually, Petitioners, v. MEMPHIS LIGHT, GAS AND WATER DIVISION et al., Respondents.

Supreme Court of Tennessee.

March 18, 1968.

Galloway & Clinton, and William I. McLain, Memphis, for petitioners.

Leo Bearman, Charles C. Crabtree, William A. Sands, Frank B. Gianotti, Jr., Memphis, for respondents.

OPINION

HUMPHREYS, Judge.

Thomas Hay, a child nine years old, climbed upon a platform supporting three electrical transformers, the property of Memphis, to fly a kite, where he suffered severe electrical burns. The three transformers were fed by primary wires and a neutral wire carrying a total of 12,500 volts between the two primary wires and 7,200 volts between each primary and the neutral wire. In some way, either by arcing or by contact, or both, Thomas was drawn against the transformer and burned. For these injuries, and expenses, etc., Thomas and his mother sued Memphis alleging facts invoking the 'playground doctrine' and charging Memphis with acts of gross negligence and carelessness said to have directly and proximately caused the injuries and damages as follows:

'That on January 26, 1964, and for a long time prior thereto, the defendants owned the vacant lot on the south side of Willowview Street between 4057 and 4069 Willowview Street in Memphis, Shelby County, Tennessee, and the uninsulated high voltage electric wires, transformers and other electrical equipment and supporting structure located and situated on said lot.

'That on or about January 26, 1964, the plaintiff, Thomas Hay, a minor then nine (9) years of age and his ten year old brother were playing on said vacant lot and on said structure supporting said uninsulated high voltage electric wires, transformers and other electrical equipment when said minor plaintiff, being unaware of the peril involved, inadvertently came in contact with or in close proximity to said uninsulated high voltage electric wires, transformers and other electrical equipment and thereby suffered serious, severe, painful and permanent personal injuries as will be hereinafter shown.

'That the defendants were guilty of the following acts of gross negligence and carelessness which directly and proximately caused said accident and the resulting injuries and damages sustained by said minor plaintiff, to-wit:

'1. They knew that children of tender years habitually played upon said vacant lot to the extent that said lot became known as a playground for children, but failed to exercise ordinary care to see that said premises were reasonably safe for that purpose, thereby permitting said children to be exposed to a known danger.

'2. They made and permitted said structure supporting said uninsulated high voltage electric wires, transformers and other electrical equipment to be easily accessible to the young children who frequently played upon said vacant lot although they knew, or in the exercise of reasonable and ordinary care should have known, that such children would be attracted to and indeed did play upon said structure supporting said uninsulated high voltage electric wires, transformers and other electrical equipment and, further, that because of their youth they would fail to discover and appreciate the danger inherent in the situation.

'3. They failed to erect a fence around, to post warnings, to insulate, or to otherwise guard said uninsulated high voltage electric wires, transformers and other electrical equipment and supporting structure despite the fact that the cost of such insulation and of erecting such a fence and posting warnings would have been small as compared to the likelihood and seriousness of injury to the young children playing on said vacant lot and supporting structure.

'4. They failed to guard against just such an accident as did occur in this case when they knew said vacant lot was being frequently used by young children as a playground and when they knew, or in the exercise of reasonable and ordinary care should have known, that such children would be attracted to and in fact did play upon said structure supporting said uninsulated high voltage electric wires, transformers and other electrical equipment thereby permitting said children to be exposed to a known danger and to an unreasonable risk of bodily injury which said children would fail to discover and appreciate because of their youth and inexperience.'

Later, their declarations were amended to plead and rely upon the doctrine of res ipsa loquitur; and upon Ordinance § 918 of the Memphis Municipal Code requiring electric wires of dangerously high voltage to be insulated. Memphis first pleaded the general issue. Then, after motion, filed special pleas which, as amended, denied it failed to use reasonable and ordinary care in the construction, maintenance and operation of the equipment, so that the premises were absolutely safe for children playing thereon; denied knowledge that children of tender years played on the lot to the extent it had become a playground for children; claimed Thomas was a trespasser upon their property; that he and his mother were guilty of contributory negligence. By special plea Memphis alleged Ordinance § 918 had been repealed by Ordinance 752 (§ 2), and defendants pleaded and relied on this ordinance As a defense. This ordinance purported to repeal § 918 and substitute therefor a new section, 915, providing that all poles, lines and conduits authorized by the chapter should be installed and maintained in accordance with applicable provisions of the National Electrical Safety Code 'as it is now written or as it may be revised or amended in the future. * * *'

Memphis also pleaded specially that the transformer bank installation was constructed and maintained so as to make it virtually physically impossible for a child of tender years to climb said structure, and that it was under no obligation to fence in the area containing the electrical installation or to post any warnings. It denied it knew or with reasonable care could have known that children could climb upon the transformer bank so as to be in danger, and denied that children had climbed there before Thomas did. It alleged by another special plea that an intervening cause relieved it of liability, in that unknown persons had placed a trailer adjacent to the transformer bank so it not only trespassed on Memphis' property but was so located as to 'enable children who might play in the area to negotiate the structure and ascend to any area of danger'.

Summarizing, Memphis defended on the grounds (1) it had not been guilty of any negligence because it had constructed and maintained the transformer bank in the safest manner possible and so as not to be climbable by children; (2) that the lot was not a playground, and it had no knowledge of facts charging it with responsibility or duty to Thomas and his mother under the playground doctrine; (3) that Thomas was a trespasser, particularly when he climbed upon the transformer bank platform, and so could not recover as Memphis had not entrapped him or otherwise wilfully or purposefully or wantonly injured him; (4) that the construction and maintenance of the transformer bank was in accord with generally accepted principles and practices with respect to such installations; (5) and that the construction and maintenance of the transformer installation conformed to City Ordinance 752, § 2, of the City of Memphis, providing for poles, lines and conduits to be installed and maintained according to the National Electrical Safety Code as written or as amended in the future.

At the conclusion of the proof, the trial judge advised counsel that he was withdrawing from the jury Memphis' proof with respect to compliance with the National Electrical Safety Code, but that Memphis could rely upon its defense the transformer bank had been properly constructed and maintained.

The trial judge also held the plaintiffs could not rely upon City Ordinance 918, requiring all electrical wires carrying dangerously high voltage to be insulated, as in his opinion it had been repealed by the later ordinance.

It should be mentioned here that Memphis did not produce and introduce as evidence a copy of the National Electrical Safety Code.

The jury, adopting plaintiffs' version of the facts, returned verdicts for Thomas Hay for $125,000.00, and for his mother for $25,000.00.

The Court of Appeals after a thorough consideration of the facts and law overruled Memphis' assignments of error that there was no material evidence to support the verdict of the jury, and that the trial judge erroneously refused to direct a jury. This portion of the Court of Appeals opinion with which we are in thorough agreement, is attached hereto as Appendix A. (Omitted in publication).

After dealing with and disposing of (and we think correctly) a number of other assignments of error, the Court of Appeals concluded by sustaining Memphis' assignments of error based on the trial judge's withdrawing from the jury the proof relative to the National Electrical Safety Code and Memphis' compliance therewith. The Appeals Court was of opinion Memphis' compliance with the minimum safety requirements of this Code was Memphis' principal defense, and that the evidence withdrawn should have been submitted to the jury. The Court remanded the cases for a new trial.

We granted certiorari solely with respect to this question. To consider, specifically, (1) whether the evidence was of such relevancy or materiality to the issues as to make its exclusion reversible error, having in mind in particular the provisions of the Harmless Error Statutes, T.C.A. §§ 27--116, 27--117; (2) whether in point of law Ordinance 752 was constitutional; and (3) if constitutional, whether the National Electrical Safety Code adopted thereby was properly in evidence under Memphis' special plea...