186 Iowa 884 | Iowa | 1919
Plaintiff is the father and administrator of the estate of Russell Edwin Davis, a child under the age of sis years, who was killed on May 28, 1917, at Malvern, Iowa, by taking hold of an imperfectly insulated electric wire, carrying 2,300 volts of electricity. The defendant is a corporation, owning and operating an electric light company, in Malvern, and on the date in question, was supplying power to the Malvern Milling Company for the operation of a large flouring mill.
Three of defendant’s wires were carried from a crossbeam near the top of a high pole to another crossbeam attached to the same pole, at a height substantially parallel with eaves of the motor shed of the milling company, to which they were attached, and from which they were carried directly and immediately into the milling company’s motor s'hed. Defendant’s pole stood about 30 inches from the building, and was surrounded by 10 strands of galvanized barbed wire, securely fastened to 4 posts, so arranged and set in the ground as to leave an open space be
Two grounds of negligence charged in plaintiff’s petition and relied upon in argument by appellant are as follows :
“1. That said. defendant was guilty of negligence in that it knowingly permitted a dangerous and deadly instrumentality to be and remain upon the premises of the Beplogle Mill in Malvern, Iowa; and the defendant, as a reasonably prudent person, should have known that said dangerous instrumentality, to wit, its three heavily charged electric wires, placed as alleged in plaintiff’s petition, were located in a place frequented by children of tender years, or in a place likely to be frequented by children of tender years; and said defendant should have known that the • manner in which said wires were placed upon said premises
“2. That defendant company was negligent because it was reasonably chargeable with knowledge that children were likely to ,oome in contaot with its dangerous wires at a point where said wires enter the Replogle Mill in Malvern, Iowa; and, in the exercise of reasonable care, the defendant might have avoided such injury.”
If liability exists in this case, it is upon the ground that the injuries resulting in the death of Russell Edwin Davis were received while he was playing with and upon a dangerous agency or instrumentality maintained by defendant in a position and upon premises which its officers and agents should reasonably have anticipated would be likely to attract children of tender years and immature judgment, and cause injury to them.
The evidence shows, as stated above, that the electric light pole and wire fencing were upon unenclosed premises, and that same were surrounded by a large open space, where children frequently congregated to play. The officers and employees of the milling company, however, ordered them to leave the premises, when their presence thereon became known to them. There is no evidence of an express invitation to the children to play,upon the open space surrounding the mill property, nor is there direct evidence that the officers or agents of defendant knew that children were accustomed to assemble for play and sports upon the premises, or in the vicinity of the alleged dangerous instrumentality. They were, however, familiar with the surroundings.
The theory upon whi.ch liability for injuries on account of so-called “attractive agencies” or “instrumentalities” rests, is that an iriiplied invitation is thereby extended to children of tender years to go upon premises where the same are situated, and that they are likely to be injured thereby: that is, the implied invitation thus extended is equivalent to an express invitation to an adult. Gregory v. Woodworth, supra, and cases cited supra. The writer of the opinion in Wilmes v. Chicago G. W. R. Co. said:
“All the cases of attractive nuisance seem to rest upon
The doctrine has been adopted in mfiny jurisdictions of this country, but other courts have refused to adopt it, and still others have restricted its application to “turntable cases” only. For a somewhat complete collection and discussion of the decisions of the courts of this country upon this question, see Wheeling, etc., R. Co. v. Harvey, 77 Ohio St. 235 (122 Am. St. 503), where much is said pro and con upon this question.
Was, therefore, the alleged instrumentality complained of of such a nature as that, defendant and its officers and agents should reasonably have known and anticipated that it would be likely to attract children of tender years and immature judgment to come upon the premises and cause injury to them? Neither the barbed wire fence surrounding the pole nor the electric wires alone menaced the safety of children playing about the mill. The electric wires, although heavily dharged and imperfectly insulated, entered the motor shed of the milling company more than six feet above the ground, and beyond the possible reach of children likely to congregate or play upon the mill premises. The obvious purpose of surrounding the pole with a barbed wire enclosure of many strands was to guard against injury to adults capable of reaching the wires from the ground, or coming in contact therewith.
“Temptation is not always invitation. As the common law is understood by the most competent authorities, it does not excuse a trespass because there is a temptation to com-. mit it, or hold property owners bound to contemplate the infraction of property rights because the temptation to untrained minds to infringe them might have been foreseen.”
The writer of the opinion in Edgington v. Burlington. C. R. & N. R. Co., 116 Iowa 410, in which case the doctrine of “attractive nuisance” was first adopted in this state, in the course of the opinion in Anderson v. Fort Dodge, etc., R. Co., 150 Iowa 465, reaffirming the doctrine of the above case, said:
“To -sav that a property owner must guard against such injury to a trespassing boy, simply because it is possible for him, in a venturesome spirit, to climb into the zone of danger, would be intolerable. In every dooryard and on every street side are shade and ornamental trees. To climb trees is as natural to the average boy as to a squirrel. Such sport is always attended with danger that the climber may lose his hold or break a branch and fall, to his severe injury. Not infrequently it may bring him to an elevation where he is exposed to contact with wires carrying electric
And to like effect see Hart v. Mason City B. & T. Co., and other cases cited, supra.
The doctrine under discussion should not, therefore, be extended so as to include and make every machine or agency capable of injuring children, or that may to some extent appeal to the caprice or buoyant instincts of childhood, an attractive nuisance. To do so would impose an unreasonable burden upon property owners, and unduly restrict the proper and rightful use thereof. While a barbed wire fence surrounding a pole in close proximity to a building might offer some temptation to climb, to a boy habitually frequenting the premises where same is located, it would, in our opinion, be an unwarranted extension of the doctrine under consideration to hold that same constituted an agency or instrumentality reasonably calculated, or likely, to attract small children. While the evidence shows that children were frequently seen upon the premises of the milling company, deceased, so far as appears from the evidence, was the only child that attempted to climb the wire fencing. It is true that the several strands of wire were close together, as were also the barbs thereon, and it would seem as though the danger of becoming injured thereby would be so manifest as to be as likely to repel as to induce children to climb the same.
The accident was indeed a sad one, and naturally appeals to the sympathy of courts and juries; but, as shown