Williams v. Springfield Gas & Electric Co.

• Decision Date: 25 May 1916
• Docket Number: No. 1737.,1737.
• Citation: 187 S.W. 556
• Court: Missouri Court of Appeals
• Parties: WILLIAMS v. SPRINGFIELD GAS & ELECTRIC CO.

187 S.W. 556

WILLIAMS v. SPRINGFIELD GAS & ELECTRIC CO.

No. 1737.

Springfield Court of Appeals. Missouri.

May 25, 1916.

Rehearing Denied and Certified to Supreme Court June 24, 1916.

Appeal from Circuit Court, Greene County; Arch A. Johnson, Judge.

Action by Francis P. Williams, by his next friend, against the Springfield Gas & Electric Company. From judgment for plaintiff, defendant appeals. Reversed and certified to Supreme Court.

Delaney & Delaney, of Springfield, for appellant. Talma S. Heffernan and Patterson & Patterson, all of Springfield, for respondent.

STURGIS, J.

The plaintiff, a minor nine years of age at the time of his injury, sues by his next friend for personal injuries received by coming in contact with defendant's high-power transmission wires defectively insulated. The two wires in question were strung along the west side of a north and south alley in Springfield, Mo., 20 feet from the ground on poles. At the place of the injury these wires passed through the top of a wild cherry tree, the poles and tree being practically in a line with each other. Opposite this cherry tree, and with its limbs brushing the east side, there was being erected a new bungalow, the outside of which was almost finished. This house fronted south, and the gable of the roof was toward the alley, the tree, and defendant's wires. The apex or comb of the roof was 26 feet from the ground, being six feet higher than the wires. A scaffold had been erected by the workmen a foot or two lower than the wires and parallel therewith. The plaintiff was injured while at play with some other boys by climbing up in the house and going from there into the cherry tree and coming in contact with defendant's uninsulated wires. These wires had been originally insulated, but the plaintiff made a clear case that for a year or more the insulation had been off more or less, and defendant does not contest this feature of the case. The serious question is whether the defendant was guilty of actionable negligence in maintaining badly insulated wires where same passed through this tree and the plaintiff came in contact therewith. Much the same proposition was stated in Mullen v. Wilkes-Barre Gas & Electric Co., 229 Pa. 54, 56, 77 Atl. 1108, 1109, thus:

"The single proposition urged upon us in the able printed brief of the appellant is that, conceding the obligation of the defendant to keep its wires safe as to those lawfully using the streets and sidewalks in the ordinary and usual way, as well as to those who, in the performance of some duty or the exercise of some right, might be required to approach them, no such obligation existed as to those, although children of immature age, who, in the pursuit of pleasure or adventure, voluntarily placed themselves in dangerous proximity to its wires, stretched 20 feet above the ground."

The plaintiff's theory of the case is that the new and only partially completed building and the tree formed an attractive place for children to play, and that defendant was bound to anticipate that children were likely to play about this building and tree, and in so doing pass from the building to the tree, as this boy did, or vice versa, and thereby come in contact with these dangerous wires. As supporting this proposition there is evidence that children of the neighborhood had been frequently playing in and around this house, especially while the workmen were not at work, as was the case when this accident occurred on Sunday evening. It was not shown that any of the children had climbed the tree or from the house to the tree during the time this house was being built. It was shown, however, that in past years during the time when wild cherries were ripe (the fall of the year) boys had been known to climb the tree for the cherries. This accident occurred in May, and the house had been in course of construction some two months or more. There is also evidence that the tree was easily climbed, having many limbs and rather low-hanging branches.

Several cases are cited by plaintiff, and we think that such declare the law correctly, that electric companies stringing high-power wires along streets and alleys through or in close proximity to trees of such character and location that boys, following their natural adventuresome tendency, are apt to climb same, must use the high care imposed on them to keep such wires in a safe condition. The high degree of care required of persons handling so dangerous an agency as electricity applies, we think, to the question of anticipating that children, and especially boys, are likely to indulge in the sport of climbing trees and going into somewhat dangerous and unusual places. Curtis' Law of Electricity, § 512, states the law thus:

"An electric company, maintaining a dangerous wire through or near a tree, is bound to anticipate that persons may lawfully climb the tree, and it is required to exercise due care to prevent injury to such persons from its wire. * * * The courts recognize that children are apt to climb trees, and impose upon electric companies the burden of using due care to keep their high-tension wires insulated in places where children when climbing a tree will come in contract with them."

The cases cited there and by the plaintiff fully sustain this proposition. Mullen v. Wilkes-Barre Gas & Electric Co., 229 Pa. 54, 77 Atl. 1108; Benton v. North Carolina Public Service Co., 165 N. C. 354, 81 S. E. 448; Philbin v. Marlborough Electric Co., 218 Mass. 394, 105 N. E. 893; Temple v. McComb City Elec. Light & Power Co., 89 Miss. 1, 42 South. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. 924. This last case is the leading case on the question, and the doctrine stated has received the approval of the authors of the able notes to this case in 10 Ann. Cas. 924, and 11 L. R. A. (N. S.) 449, where such doctrine is fully discussed and the cases reviewed.

The above-cited cases also dispose of, adversely to it, the defendant's contention that plaintiff was a trespasser to the extent that it did not owe him the duty of keeping its wires safe in that he was playing upon the premises of another, and where he had no right to be. The defendant vigorously protests against the doctrine announced in what are termed the "turntable cases," that of structures and machinery dangerous but attractive to children, and thereby alluring them to become trespassers to their injury, under the wider name of "attractive nuisances." The able opinion of Lamm, J., in Kelly v. Benas, 217 Mo. 1, 116 S. W. 557, 20 L. R. A. (N. S.) 903, is cited as calling a halt on the unjust extension of this doctrine. This and the many cases cited deal with accidents where the place and causes of the injury are on the premises of the defendant, and much may be said in favor of restricting the liability of one for failing to keep his own premises in a safe condition against those wrongfully trespassing thereon. But as shown in the cases, supra, this principle has no application here, as the place of the injury is not on defendant's premises, but on a public thoroughfare as to its wires and poles, and on premises of a third person as to where the plaintiff was playing. As to this defendant, plaintiff was not a trespasser, and the owner of the premises was not and is not complaining. As said in Day v. Light, Power & Ice Co., 136 Mo. App. 274, 280, 117 S. W. 81, 83:

"The precise nature of the relationship of the boy to the owner of the premises is not important. It is enough to know that he and the other persons who used the roof were not trespassers. The usage being with the permission of the owner, express or implied, the child was rightfully there so far as defendant was concerned. This case differs from those where the plaintiff was a trespasser on the property or a mere licensee of the defendant." Blackburn v. Railway, 180 Mo. App. 548, 555, 167 S. W. 457.

The difference lies in the fact that the owner of premises has a right to its use, and no one else has such right without his consent, and he is under no obligation, except in exceptional circumstances, to keep his premises in a safe condition for those who are there against his will. When such person, however, has only a permissive right to use public or private property whereon to locate and operate dangerous instrumentalities or agencies, another, and not he, determines who are or who are not trespassers, and as to him none are trespassers, at least none who are there without objection of the proprietor.

If the above were all the facts in the case and the plaintiff had, in a manner natural for a boy of his age, and therefore one to be anticipated, climbed this tree or passed from the house to the tree, and in so doing came in contact with defendant's dangerous wires, we would affirm his right to recover for his injuries. Such are the facts in all the cases cited, and in each one the act of the boy in climbing the tree and his coming in contact with the dangerous wires were in a manner and under circumstances which the court could say were reasonably to have been anticipated and guarded against. But is such the case here? The accompanying photograph of the scene of this accident is in evidence, and in many respects reveals the real facts better than the oral evidence.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Such photograph was taken the next morning after the accident, and every witness testifies to its accuracy. It shows the view looking southward. Another photograph, taken at the same time, shows the same view looking northward, but it need not be reproduced.

The plaintiff, with three other boys, was playing "banter-leader," a dare game in which one boy took the lead in doing difficult things and the others followed, or tried to do so. Their play led them to go upstairs in this new house by a ladder, the stairway not being completed. The leader then proposed going out on the roof, but the owner of the...