Williams v. Springfield Gas & Electric Co.

• Decision Date: 04 March 1918
• Docket Number: No. 19889.,19889.
• Citation: 202 S.W. 1,274 Mo. 1
• Parties: WILLIAMS v. SPRINGFIELD GAS & ELECTRIC CO.
• Court: Missouri Supreme Court

202 S.W. 1

274 Mo. 1

WILLIAMS v. SPRINGFIELD GAS & ELECTRIC CO.

No. 19889.

Supreme Court of Missouri, Division No. 1.

March 4, 1918.

Appellant's Motion for Rehearing Denied March 29, 1918.

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. Judgment for plaintiff, and defendant appeals. Affirmed.

Delaney & Delaney, of Springfield, for appellant. Talma S. Heffernan and Patterson & Patterson, all of Springfield, and J. M. Johnson, of Kansas City, for respondent.

BLAIR, J.

This cause was transferred here by the Springfield Court of Appeals (187 S. W. 556). The appeal is from a judgment for damages for injuries suffered by respondent, then nine years old, from contact with appellant's electric wires. These wires carried a powerful current, and were so placed that they passed through a tree which stood on or very near the line dividing a public alley from a building lot in Springfield. The tree was 30 or more feet high, and its lower branches were near the ground. It was a tree which children could and did climb easily. The insulation of the wires near and in the tree had been in bad condition for a year or more. Respondent was injured on May 9th. Nearly two months before that date the lot owner commenced the erection of a bungalow. From the beginning, without interference from the owner, children played about and in the building. The center of the trunk of the tree near the ground was 32 inches from the end wall of the house. Appellant's nearest wire, as it passed through the tree, was 36 inches from the end wall and 12 inches from the edge of the cornice, and was 20 feet high. On May 9th the house was nearing completion. The roof, at the highest point next the tree, was 26 feet 3 inches high. The tree extended several feet above this. On that date respondent and several other boys were playing about the bungalow, and in the course of their games respondent went upon the roof and up to or near the ridge pole. The owner, then present, told the boys to come down. Respondent at once went to the edge of the roof nearest the tree, and climbed from the roof to the tree along a limb or bough which extended out over the house. He reached the trunk of the tree or a point very near it and began to descend. He stepped down upon another limb which broke and he fell against the wires, and was severely shocked and burned. He fell to the ground, but there no evidence he received any injury except those inflicted by the wires. Respondent had not been in the tree before.

I. The Court of Appeals (187 S. W. 556) gave recognition to the general principle that a company like appellant, if reasonably chargeable with knowledge, or of facts making it reasonably probable, that persons may lawfully come into close proximity to its wires for purposes either of business or pleasure, is obligated "to use every precaution which was accessible to insulate its wires at" such places and to use the utmost care to keep them so. Geismann v. Electric Co., 173 Mo. loc. cit. 674, 73 S. W. 654; Von Trebra v. Gaslight Co., 209 Mo. loc. cit. 659, 108 S. W. 559; Clark v. R. R., 234 Mo. loc. cit. 418, 419, 137 S. W. 583; Campbell v. United Rys., 243 Mo. loc. cit. 152, 147 S. W. 788.

II. The Court of Appeals also recognized the rule that a company stretching electric wires in a city, through trees like the evidence tends to show the tree in this case to have been, must take notice of boyish impulses and anticipate the presence of children in such trees. In this connection it quoted from a case (Temple v. Elec. Co., 89 Miss. 1, 42 South. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. 924) in which the Supreme Court of Mississippi said:

"Whether this appellee knew that this particular small boy was in the habit of climbing this tree or not, it is clear from the averments of the declaration that it did know the tree, the kind of tree, and, knowing that, knew what any person of practical common sense would know, that it was just the kind of tree that children might climb into and play in the branches."

The Court of Appeals cited cases and texts supporting the principle. It is well established. Mullen v. Gas & Elec. Co., 229 Pa. loc. cit. 57, 58, 77 Atl. 1108; Benton v. Public-Service Corporation, 165 N. C. 357, 81 S. E. 448; Thompson v. Slater (App.) 193 S. W. loc. cit. 973, 974; Sweeten v. Power & Light Co., 88 Wash. 679, 153 Pac. 1054; Electric Light Co. v. Healy, 65 Kan. 798, 70 Pac. 884; Meyer, Adm'x, v. Light & Traction Co., 151 Wis. 279, 138 N. W. 1008; Talkington v. Power Co., 96 Wash. 386, 165 Pac. 87; Birmingham, etc., Co. v. Cockrum, 179 Ala. 372, 60 South. 304; Hayes v. Power Co., 95 S. C. 230, 78 S. E. 956; O'Gara v. Electric Co., 244 Pa. loc. cit. 159, 160, 90 Atl. 529; Curtis on Law of Electricity, § 512; Joyce on Electric Law, § 445. The Temple Case often has been cited approvingly in yet other decisions, and, so far as we can discover, has been criticized in none. The principle is sound.

III. Having reached these conclusions, the Court of Appeals further held the principle of the Temple Case inapplicable. It held there was no reasonable probability of an occurrence like that detailed in the evidence, and therefore there is no liability, concluding thus:

"Applying these principles to this case, we cannot hold that defendant should have anticipated that a boy or any one, would climb to the apex of the roof, and attempt to go from thence to the top of the tree, and in so doing fall on these wires."

After a careful examination of the record, we are convinced the Court of Appeals fell into error as to the facts. Two witnesses testified as to the time and manner of respondent's fall. Both testified he had climbed into the tree and had begun to descend before he fell. That part of the testimony quoted by the Court of Appeals does not negative this idea, and other testimony of the witness quoted, both on direct and cross examination, is clearly to the effect that respondent had begun his descent before he fell upon the wires. The bough over which respondent climbed into the tree did not give way. Nor did respondent fall while climbing into the tree. The photograph is not conclusive. The photographer testified the position of the camera had much to do with the appearance of nearness or distance between objects shown by a photograph. Mrs. Hughes gave testimony tending to show branches had been cut from the tree after the accident and before the photograph was taken. Even without any of this testimony, it certainly could not be conclusively held there was no evidence the boy climbed into the tree from the house. The decisions cited by the Court of Appeals as warranting the holding last mentioned are, in general, those proceeding upon the principle that an electric company which has placed its wires where they are practically inaccessible, or where they can be reached only by overcoming considerable difficulty or danger, i. e., in places where the presence of persons is not reasonably to be anticipated, are not, ordinarily, liable for injuries resulting from contact with them. Card v. Electric Co., 77 Wash. loc. cit. 569, 137 Pac. 1047; Braun v. Electric Co., 200 N. Y. loc. cit. 494, 495, 94 N. E. 206, 35 L. R. A. (N. S.) 1089, 140 Am. St. Rep. 645, 21 Ann. Cas. 370. Several decisions cited in the opinion are from courts which have approved and applied the rule in the Temple Case, and others distinguish it. None of them criticizes it. The facts of the record render these cases inapplicable, and bring the case within the principle of the Temple Case. That principle, so far as this case is concerned, is that electric companies which stretch wires through trees which children can climb must anticipate the presence of children in such trees and govern themselves accordingly. Everybody knows boys will climb trees. It is the probability of their presence there which brings trees within the general rule of Geismann v. Elec. Co., supra. The rule is not that only such boys are protected as may climb from the ground into a tree. The thing required to be anticipated is the presence of children in the tree. The method by which they get into it cannot ordinarily be very important. Respondent was not injured by reason of coming into the tree from the house. He did not fall from the house. He had climbed into the tree and was engaged in descending the tree when he came into contact with the wires. Can it be that the company would be liable if the boy had been climbing up and had touched the wires and is not liable because he came in contact with them while attempting to descend? The Court of Appeals does not say so. Neither do we. The boy had reached a place where he had a right to be and where appellant reasonably might have anticipated his presence. His method of reaching the place may have been unusual, but that method did not bring about his injury. The trial court was right in its conclusion on this phase of the case.

IV. The Court of Appeals correctly held respondent was not to be treated as a trespasser. This is true whether the tree was in the alley or on private property. It was not appellant's property....