Waddell v. New River Co., 10749

• Decision Date: 26 June 1956
• Docket Number: No. 10749,10749
• Citation: 93 S.E.2d 473,141 W.Va. 880
• Court: West Virginia Supreme Court
• Parties: Teddy Delano WADDELL, an Infant, etc. v. The NEW RIVER COMPANY.

Page 473

93 S.E.2d 473

141 W.Va. 880

Teddy Delano WADDELL, an Infant, etc. v. The NEW RIVER COMPANY.

No. 10749.

Supreme Court of Appeals of West Virginia.

Submitted April 18, 1956.

Decided June 26, 1956.

Syllabus by the Court.

1. When, in an action of trespass on the case for personal injuries, the evidence fails to establish primary negligence, it is the duty of the trial court to direct the jury to return a verdict for the defendant, and its failure to do so is reversible error.

2. Where the evidence is that: Defendant owned and maintained in an uninhabited, wooded area of its property, difficult of access, a power pole to which were attached uninsulated wires carrying 2,300 volts of electricity, such pole being situate 1,385' from plaintiff's dwelling house and 1,525' from the nearest road; the pole was guyed by 2 approximately parallel guy wires, one directly over the other, the distance between such wires ranging from approximately 4' near the ground to 6' at the pole; the pole was constructed, guyed and maintained in accordance with the best usage and practice of the electrical industry; children had played in the general vicinity of the pole and there were no warning signs nearby; and that, plaintiff, a boy fourteen years and seven months of age, traversed the distance from his dwelling to the pole, climbed approximately 30' up the guy wires to a point nearly 24' above the ground, then reached over a distance of 2' and grasped one of the uninsulated current carrying wires, seriously injuring himself; such evidence is insufficient, as a matter of law, to be submitted to a jury upon the question of defendant's primary negligence.

Fletcher W. Mann, Beckley, for plaintiff in error.

Benjamin D. Tissue, Leo Bridi, Beckley, for defendant in error.

BROWNING, President.

This is an action of trespass on the case instituted in behalf of Teddy Waddell, a boy 14 years and 7 months of age, by his mother and next friend, to recover damages for the alleged injuries sustained by the infant plaintiff when he climbed a guy wire attached to a power pole belonging to the defendant, the New River Company, and grasped an uninsulated wire, 23 feet and 10 inches above the ground, carrying 2,300 volts of electricity. The declaration charges the defendant with negligence in using uninsulated wire, in failing to provide warning signs, and in placing two guy wires in such relation to each other that an infant might, by placing his feet on the lower wire and his hands on the upper climb such wires to a point where he could come into contact with the uninsulated high voltage power line.

The plaintiff resided with his family in the Town of Skelton, a mining community in Raleigh County. The town and the land surrounding it for some distance in all directions, including the land between Skelton and the power pole, where the accident occurred, were owned by the defendant. To reach the place where the injury occurred from Skelton, it is necessary to climb a small knoll, go down across a hollow, then up another small knoll. The power pole in question is situated on the far side of this second knoll. Approximately 150' below the power pole is a small 'Cabin', and 600' below that is a small ravine with a pool of water sometimes used as a swimming hole.

The plaintiff introduced evidence to the effect that children in and around Skelton were accustomed to playing all over the hills in this general area; that they frequently, during the summer, stayed overnight at the 'Cabin'; that they had grapevine swings in the vicinity, and often went swimming in the pool; that some of the children had played on the guy wires at times prior to the accident; that there were no warning signs in the vicinity; and that the current carrying wires were uninsulated. The plaintiff attempts to impute knowledge of the fact that children were accustomed to playing in this vicinity to the company officials by testimony that the Gillespie boys, children of the mine superintendent, were among those who played in this area.

The defendant introduced evidence that the distance from plaintiff's house to the power pole is 1,385'; that the first 500' is open or cleared, and the remaining 885' is woodland; that it is entirely on the property of the defendant, and there are no public roads or ways nearer than 1,525' from the point of the accident; that the area is grown up with underbrush and difficult to get to; that the power line and poles were properly constructed and guyed in accordance with the best usage and practice of the electrical industry; that high voltage lines in rural areas are seldom, if ever, insulated or wrapped; and that, while the pole in question could have been guyed by a push brace, or by the use of other poles and wires, such methods would have been impractical in the instant case. The mine superintendent denied any knowledge in behalf of himself or other company officials that children were accustomed to playing in this area, but admitted that no warning signs were placed in the vicinity of the pole.

Photographs, introduced in behalf of the defendant, and plaintiff's testimony, indicate that the 'swimming hole' is hardly worthy of that designation. The plaintiff on direct examination, in referring to the activity of his companions and himself a short time prior to his injury, stated that we 'played around in that mud, or the water hole, or whatever you want to call it.' It was created by workmen damming a stream to secure water while constructing the power line. The 'Cabin', constructed of poles in 1951, had neither doors nor windows, and could be entered only by crawling through a hole in the top of the structure.

The jury returned a verdict in favor of the plaintiff in the amount of $10,000, and judgment was entered thereon, to which this Court granted a writ of error and supersedeas on June 4, 1955.

Defendant assigns as error: (1) The court's action in permitting the case to go to the jury, and, also, in refusing to give a peremptory instruction in behalf of the defendant on the ground that no negligence on the part of defendant had been shown; (2) In giving plaintiff's instruction No. 9, as amended; (3) In refusing defendant's instructions Nos. 2, 3, 4, 6, 8, 9, 10, 11, 12 and 14; (4) In refusing to hold that plaintiff was contributorily negligent; and (5) In holding defendant should have foreseen or anticipated plaintiff would climb the pole and come into contact with electric current.

This Court, having found that the trial court committed reversible error in permitting the case to go to the jury upon the question of the primary negligence of the defendant, it is unnecessary to discuss any other assignment of error.

The plaintiff was either an invitee, licensee or a trespasser. In the law of negligence, and with reference to trespasses on realty, invitation is the act of one who solicits or incites others to enter upon, remain in, or make use of, his property or structures thereon, or who so arranges the property or the means of access to it or of transit over it as to induce the reasonable belief that he expects and intends that others shall come upon it or pass over it. To constitute a person a licensee upon the premises or property of another, it must be shown that he is there by permission or authority of the owner or his authorized agent. The permission and authority amounting to a license must be expressly or impliedly granted, and mere sufferance or failure to object to such person's presence upon the property of another is insufficient within itself to constitute a license, unless under the circumstances that permission should be inferred. A trespasser is one who goes upon the property or premises of another without invitation, express or implied, and does so out of curiosity, or for his own purpose or convenience, and not in the performance of any duty to the owner.

The plaintiff was not an invitee. Applying the facts of the case to the decisions of this Court, it is immaterial whether he was a licensee or a trespasser. The duty owing to him by the defendant was the same in either case. Evans v. Carter Coal Co., 121 W.Va. 493, 5 S.E.2d 117; Robertson v. Coal & Coke R. Co., 87 W.Va. 106, 104 S.E. 615; Ross v. Kanawha & M. R. Co., 76 W.Va. 197, 85 S.E. 180; Woolwine's Adm'r v. Chesapeake v. O. Ry. Co., 36 W.Va. 329, 15 S.E. 81, 16 L.R.A. 271.

The so-called attractive nuisance doctrine is not recognized in this State, and the rule to that effect was reasserted in the recent case of Harper v. Cook, 139 W.Va. 917, 82 S.E.2d 427. While this Court has held that ordinarily children are not exempt from the general rule as to the duty owing by the owner of premises to invitees, licensees and trespassers, it held in Adams v. Virginian Gasoline & Oil Co., 109 W.Va. 631, 156 S.E. 63, 66, that: '* * * this rule does not apply where there is an exposed and unguarded danger, known to the proprietor, and where it is also known to the proprietor (a) that children are in the habit of resorting for play to his property, at the place of danger, or in its immediate vicinity, or (b) that children are actually present at the time and place of danger. In such situations, the proprietor must exercise reasonable care to avoid injuring the children, and whether such care has been shown is generally a question of fact for jury determination. * * *' Where such a condition exists or is created upon the property of the owner, or other person having the control and use of the property, the care to be used to protect children who are upon such property as licensees or trespassers is the care of an ordinarily prudent and cautious person under similar circumstances. Reasonable care and negligence are relative terms, and the degree of care required must be commensurate with the dangers to be avoided. Koontz v. Whitney, 109 W.Va. 114, 153 S.E. 797; Morrison v. Appalachian Power Co., 75 W.Va. 608, 84 S.E. 506.

In the annotations to the case of ...