118 Me. 414 | Me. | 1919
This action was brought, under the provisions of R. S., Chap. 92, Secs. 9 and 10, by the administrator of the estate of Alton A. Chickering, deceased, for the benefit of an only heir at law, to recover the pecuniary damages resulting from the immediate death
After setting forth plaintiff’s appointment and qualification as administrator, and that he brought the suit for a statutory beneficiary, the substance of the declaration is that, on May 23rd, 1918, for transmitting electricity at high voltage from its generating plant at Damariscotta Mills, the defendant owned and operated a line of posts and wires, extending in and along a highway called the River Road in Newcastle; that defendant “wrongfully, negligently and carelessly maintained said wires, with no insulation whatever, or any other protection therefrom, along said highway and past the plaintiff’s residence, situated on the east side of and adjoining said highway;” that said wires were "wrongfully, negligently and carelessly strung from the cross-arms on the poles” among the branches of a shade-tree in plaintiff’s yard, ‘said wires being hidden from view by the foliage thereof, and being less than sixteen feet from the ground;” that intestate, a minor of the age of 12 years, playing that day, as he was entitled to, about plaintiff’s premises, where also intestate lived, climbed the tree where the wires were run, “and while in said tree said wire's came in contact with his body, without fault on luis own part, and he was electrocuted and instantly killed thereby.” Other allegations of the declaration are not essentially important of recital at this time.
By interposing a general demurrer, the defendant confessed all the facts well pleaded by its opponent to be true; but, relying on some predicated defect of substance, by the rules of law arising on those facts, it denied that plaintiff stated a cause of action. In other words, defendant did not raise any question of fact. It raised an issue challenging legal vitality of the case. The question for review is whether demurrer properly was overruled.
Although the line of posts and wires was located in and along a public way, it was, nevertheless, on the record before us, rightful property of the defendant. Granting that the poles and wires were legal structures, the owner would be liable only for carelessness or negligence in their erection or maintenance. R. S., Chap. 60, Sec. 27.
It would be difficult, in an acceptable general rule, to set bounds to the extent to which ownership makes it possible for one to use his own property without incurring liability for injury to the person or
“Actionable negligence,” said Whitehouse, J. in Boardman v. Creighton, 95 Maine at page 159, “arises from neglect to perform a legal duty.” In the declaration under consideration there is absence of specific allegation of duty owed by defendant to plaintiff’s intestate, and of breach of that duty, with resulting injury. It is good pleading in an action of tort, founded on a defendant’s negligence, for the declaration to allege what duty was owing by the one to the other, together with the breach of that duty, and the consequential injury. But a declaration would not be intrinsically bad for want of such specific averments. A plaintiff may make direct and positive aver-ments of fact from which the law will imply the existence of duty, and by like averments he may show wherein the defendant left duty undischarged. “When it” (the declaration) is founded on the obligation of law, unconnected with any contract between the parties, it is sufficient to state very concisely the circumstances which give rise to defendant’s particular duty or liability.” 1 Chitty on Pleadings, Section 397. By direct averment a pleader must at least state facts from which the law will raise a duty, and show an omission of the duty, with injury in consequence thereof. 29 Cyc., 567. It is sufficient to allege facts in a general way, which will give the defendant notice of the character of the’ proof that would be offered -to support the plaintiff’s case. There are many cases where, when certain facts are shown, a general allegation of negligence or want of care gives all the information needed. Sufficiency of the pleadings must be determined upon the facts from which the legal duty ig
This declaration sets out conjoined acts of negligence, both of which may be true, and both of which coalescing as a single act, may have caused the accident. Shorn of technical phraseology, plaintiff charges that defendant negligently had a dangerous wire wrongfully, carelessly, and negligently strung. In reply, the theory of the doctrine of attractive nuisances, familiar in the turntable cases, has been discussed by counsel. That doctrine is that he who creates on his premises or leaves there a dangerous machine or thing alluring to children, thereby impliedly invites children to endangering play; and, if they come, and he fail to exercise due precaution to protect them from injury resulting from their play, liability in damages for negligence attaches. This doctrine never has been adopted in Maine. McMinn v. Telephone Company, 113 Maine, 519.
In the transmission of electricity high regard must be had to the safety of the public. It cannot be said as a matter of law that it is the duty of an electric company, regardless of where its line may be and as to whom injury may come, to insulate or otherwise extraordinarily guard wires' strung, by virtue of a legal location, above the general 'sphere of hazard. This duty has been held to be limited to points where there is ground to apprehend that a reasonably prudent person may come in close proximity with the wires. Wetherby v. Twin State Company, (Vt.), 75 Atl., 8. In the case here, it appears that defendant had a high tension transmission line extending along the highway to and beyond the plaintiff’s residence, the wires stretching between the branches of a shade-tree in his yard. Intestate, while at play, climbed into the tree, and, as the immediate result of contact there with a naked wire, was instantly killed by an electric shock. Trees growing about a family home are not primarily for boys to play in. But by climbing a tree a boy would not altogether remove himself from .the pale of the protection of the law. In constructing and maintaining a line for transmitting the subtle agency of electricity, no one may with impunity totally disregard the natural
As a general proposition, a person takes the risk of accident, or contributes negligently to his own injury, as the case and relation may be, only where he voluntarily exposes himself to a danger of the existence of which he knows, or, in the exercise of that degree of care which an ordinarily prudent person would exercise, he ought to know. The law imperatively imposes upon everyone that, proportioned with the danger to be avoided, he should use care for his own protection. Yet, as Mr. Justice Harlan approvingly said in Union P. Ry. Co. v. McDonald, 152 U. S., 262, 38 Law Ed., 434, “the law-discriminates between children and adults, the feeble and the strong, and only requires of each the exercise of that degree of care to be reasonably expected in view of his age and condition.” Reynolds v. N. Y. Central &c. Railroad, 58 N. Y., 248. Children are not holden to the same extent of care that adults are. They are bound to use that degree of care which ordinarily prudent children of their age and intelligence are accustomed to use under like circumstances. The age and intelligence of a child are important factors in determining whether due care has been used. Colomb v. Street Railway Company, 100 Maine, 418, 420. The capacity, the intellignece, the knowledge, the experience and discretion of the individual child are always evidentiary circumstances. There is no absolute standard. Plaintiff’s intestate was 12 years of age. A bright, intelligent boy of that age, in the possession of all his faculties, has been held to be sui juris (Crosby v. Railroad Company, 113 Maine, 270; Gleason v. Smith, 180 Mass., 6), and his conduct measurable by the standard of that of boys of like age who are ordinarily careful. Crosby v. Railroad Company, supra.
Presence of the wires might cause a person to surmise them of dangerous character. But, in and of itself, a wire is inoffensive. Many a yard has wire strung through it as a piece of mechanism, to which electricity is ever stranger. Again, wires charged with electric current may be harmless and they may be highly dangerous. The difference is not apparent to ordinary observation. “While an
Courts elsewhere have passed upon cases resembling this. In Mullen v. Wilkes-Barre Gas & Electric Co., 229 Pa. St., 54, a boy of tender years while at play climbed a chestnut tree standing in the sidewalk of a public street, and was injured by coming in contact with the defectively insulated wire of a corporation engaged in furnishing electric light. The reviewing court said, that on the main question
Temple v. McComb City El. Lt. & P. Co., (Miss.), 42 So., 874, 11 L. R. A., (N. S.), 449, was brought by a child 10 years old to recover for injuries caused by an uninsulated wire which defendant had placed in a tree in a highway. Plaintiff came in contact with the wires while climbing among the branches of the tree. Reversing judgment for defendant, Chief Justice Whitfield, said: “The appellee had the right to such reasonable use of the streets for its poles and wires as the conditions existing at the time in the community warranted. On the other hand, the appellant had the reciprocal right to what was a reasonable use of the streets on his part. — 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 ldnd of tree, and, knowing that, knew what any person of practical common sense would know, — -that it was just the ldnd of a tree that children might climb into to play in the branches.”
The limb of a tree on which a boy was sitting broke, and he came-in contact with an uninsulated wire passing through the tree; below where he had sat. The court held that lack of insulation of the wires, and not the brealdng of the limb, was the proximate cause of the injury, and that defendant reasonably could have anticipated that a boy would climb the tree. Thompson v. Flater, 197 Mo. App. 247. In Sweeten v. Pacific Power & Light Co., 88 Wash., 679, 153 Pac. 1054, an electric light company permitted its wires from which the insulation had become worn, of which fact its manager was warned, to remain in a large tree in a public alley where children habitually played. That company was held liable for the death of an eight year old boy who came in contact with the wires while in the tree. Denver Con. El. Co. v. Walters, (Colo.) 89 Pac., 815, was a case where a boy 12 years old sought to recover for injuries caused by contact with defendant’s uninsulated wire affixed to his father’s house for carrying electricity for lighting purposes there. Judgment in his favor was reversed on other grounds, but the court said, that wherever there was a reasonable probability of accessibility of the appliances to and by children, the strict rule of the highest degree
It may be that the dangerous character of a wire carrying electricity at high voltage would be unaffected by insulation. A situation is conceivable in which insulation originally adequate might tend, from partial and unnoticed wear, to increase the degree of danger. Perhaps such wires had better be left naked. These questions are not now presented for decision. Plaintiff’s contention is that his intestate, exercising due care on his own part, was where he was of legal right entitled to be, and that he was not bound to take the premises as he found them; that a wire apt to inEict injury there negligently placed and negligently maintained by the defendant,
Delivering the opinion of the court in Wetherby v. Twin State Gas & Electric Co., supra, Justice Heselton says: “The business of -transmitting electricity, while indispensable to society, must be conducted with a very high regard for the safety of the public, and the thoughtlessness, inexperience, lack of judgment, and misjudgment of children of tender years must be taken into account; but the courts cannot make electric companies insurers of the safety of children, more than of others, nor require of such companies, in the circumstances of their business, a degree of care, prudence and foresight beyond that which is given to careful and prudent men to have and exercise in such or like circumstances.” Reason and humanity alike approve the rule so well defined by the Vermont jurist. Adopting it in the case at bar, it is our conclusion that the averments of the plaintiff’s declaration set out a state of facts which can beheld to impose liability on the defendant.
Exceptions overruled.