281 N.W. 517 | Minn. | 1938
Lead Opinion
The complaint charged defendant with divers acts of negligence, among others that the high voltage wire was uninsulated, that the mast arm could be raised so that the cable would contact the high voltage wire, sending a death-dealing current into the cable, that the cable was not insulated, that the staple should have been placed higher on the pole so as to keep the cable out of reach of the curious, that there was no sign of warning on the pole or cable, and that the mast arm was not blocked so as to prevent possible contact between cable and the high-tension wire. Defendant denied negligence, averred that Warren's death was due to his own negligence while engaged in intentionally damaging defendant's property. There was a verdict for plaintiff, the administrator of Warren's estate, and defendant appeals from the order denying its motion for judgment non obstanteveridicto or a new trial. *378
The assignments of error going to the contention that there is no evidence to sustain a finding of negligence against defendant are without merit. The jury could find that there was no occasion at all for having the mast arm so affixed that it could be raised above the horizontal position; that a clamp or knot could have been put on the cable between the mast end and the pulley so that it would have been impossible to contact the 6,600-volt wire with the cable; that for a trifling cost the cable could have been insulated some little distance above the hasp; and that according to good usage the staple should have been placed at least eight feet above the ground, beyond the reach of the curious. It would seem that a bare statement of some of the main facts clearly shows that the jury had ample ground for finding negligence of defendant. In transmitting such a deadly and invisible force as a high voltage current of electricity care commensurate with the danger of its escape is required. We need merely refer to the cases cited under note 29, § 2996, 2 Dunnell, Minn. Dig. (2 ed.). The location of this pole is so entirely different to that of the pole in Keep v. Otter Tail Power Co.
The proposition that troubles the court is whether it should be held as a matter of law that Warren's negligence contributed to his death. Unquestionably his meddling with the cable set in motion the sequence of events that caused his death. Removing the hasp could not have been other than an intentional act of his. Could a jury rightfully excuse it on the ground of Warren's youth and lack of knowledge of the wrong and danger thereof? It must be conceded that he realized at once that he should not have tampered with the hasp, for when he could not get it back he called for aid to replace it. This call for help also satisfactorily shows that in what he did there was no intent or desire to injure or damage defendant's property. Defendant seems to concede that as to children of tender years the doctrine of attractive nuisance excuses the trespass *379 of the one injured or killed. The death penalty appears too severe a penalty for a youth's prank.
The contention that he violated 2 Mason Minn. St. 1927, § 10433, making the wilful interference with electric wires and lamps a misdemeanor, and therefore, as a matter of law, he was guilty of negligence, we regard as not sound. The court rightly submitted to the jury whether or not he violated that statute, and instructed them that if he violated the same he should be held negligent. The jury found that he did not wilfully violate the statute.
But, even so, the question remains whether or not his removing the hasp from the staple was an excusable act of trespass, under the attractive nuisance doctrine. This pole was not upon defendant's land. As to the ownership of the land or the demarcation of the southerly street line of Broadway and Maple streets, at the place where this pole stood, the record is silent. But it is evident that this pole with the mast arm light was placed to light the paths leading from the streets to the footbridge and that bridge, also that those paths and that bridge were for public travel. In passing upon the contributory negligence of one injured or killed by another's negligence, consideration must be given to what knowledge the one killed possessed, or should by the exercise of ordinary care have possessed, regarding the negligence of the other party, or, in this case, of the character of the attractive or alluring nuisance — the cable. There was nothing to indicate to anyone that this cable could affect anything else than the position of the light on the mast arm, operated by the nondangerous current used in the ordinary household. In Znidersich v. Minnesota Utilities Co.
"The differentiating element is found in the fact that the child injured has as much right in the street where the alluring instrumentality is maintained as the owner thereof, thus removing in a substantial way the element of unquestioned trespass necessarily presented where private property and premises are invaded. Barrett *380
v. Village of Princeton,
Applying the principle thus stated to this record, we conclude that it was for the jury and not the court to say whether or not this pole with the mast arm and cable, within easy reach of youths of Warren's age, was an alluring attraction or attractive nuisance (the nuisance consisting in the concealed death-dealing danger of the cable contacting the high voltage transmission wire). A technical trespass does not always affect a recovery or charge the one injured or killed in the trespass with contributory negligence. Faribault v. Northern States Power Co.
There are several assignments of error relating to the charge. We see nothing erroneous in those parts of the charge to which assignments of error numbered 7, 8, and 9 are directed. In fact assignment numbered 8 was defendant's requested instruction numbered I, and assignment numbered 9 was defendant's requested instruction numbered II, in substance. *381
Assignment numbered 10 relates to the court's interpretation of 2 Mason Minn. St. 1927, § 10433, embodied in the charge at defendant's request. The court correctly, we think, stated that this statute was directed against a wilful or malicious tampering or interference with defendant's pole and attachments, saying:
"If you find that he did intend to do some injury or damage to the defendant's property, then there would be a wilful interference with the property of defendant * * * and as such Warren would be guilty of negligence. But if the interference was not wilful, was not done with the intention to damage or injure the defendant's property, was not done in a spirit of malice, then you cannot find there was a violation of this statute on the part of Warren, and as such there would be no negligence in that respect."
The term "wilful" in criminal law denotes an evil intent or malice. 2 Dunnell, Minn. Dig. (2 ed. Supp.) § 2410, and cases cited in note 19 to the word "wilful" on p. 810, vol. 6, of the Digest. We think the court's interpretation of this criminal statute substantially correct.
Error is also assigned upon this instruction (11th assignment of error):
"And in that connection the court instructs you that where a person is killed, if he is killed by the negligence of another, or if he is killed, the presumption is that he who was killed — was in the exercise of ordinary care at the time of the accident. * * * This is, however, merely a presumption and must yield to proof that due care was not exercised on the part of the person that met his death."
The rule as stated, though slightly deficient in diction, correctly states the law. As we understand the contention of defendant, it is not the language in which the rule was given to the jury, but the inapplicability of the rule to the situation which is found fault with. It is claimed that the evidence plainly discloses what Warren did, so that nothing is left to the presumption of his due care. Defendant on this point argues that the complaint alleges and the answer admits that Warren removed the hasp from the staple, so not only *382 the evidence but the pleadings reveal Warren's conduct and the presumption of due care is out of the picture, and that the mere statement of the rule even though accurately made was prejudicial to defendant. It is difficult to appreciate that any prejudice could result to defendant from the jury receiving information of this presumption, coupled as it was with the declaration that it must yield to proof that due care was not exercised by Warren. Moreover, it cannot be said truly that either the admission of the pleadings or the evidence discloses Warren's entire participation in the tragedy. While it is clear that Warren removed the hasp from the staple, the record is silent as to whether before he took hold of the cable the bent wire was in the staple. No one testified to seeing that bent wire at or near that pole either that night or the next morning. Warren is not here to tell whether or not it was there, nor as to what care he exercised in attempting to replace the hasp before he called for help. We cannot think defendant was harmed by the part of the charge attacked by assignment number 11.
The last assignment is that the court erred in denying a new trial on the ground of the excessive damages given under the influence of passion and prejudice. The verdict was for $7,500. The court granted a new trial unless plaintiff consented to a reduction of the verdict to $6,250. Plaintiff consented. While the verdict as reduced is liberal, we do not regard it so large that the inference is warranted that the jury were actuated by passion or prejudice. There were funeral expenses of $250, so the pecuniary loss to the parents is represented by $6,000. In this state for the loss of a 23-year old daughter a verdict for $6,000 was sustained in Waggoner v. Gummerum,
The order is affirmed.
Dissenting Opinion
We think the question of defendant's negligence and the contributory negligence of plaintiff's intestate presented jury issues. Our disagreement with the majority opinion is limited to the single question of whether the court was justified in instructing the jury that "where a person is killed, if he is killed by the negligence of another, or if he is killed, the presumption is that he who was killed — was in the exercise of ordinary care at the time of the accident." Obviously Warren Ekdahl was, as to this appliance, at least a technical trespasser. Only his youth and inexperience would permit the question of his contributory negligence to become one of fact instead of one of law. "Unquestionably his meddling with the cable set in motion the sequence of events that caused his death." That conclusion reached by the majority is founded upon the established facts and the necessary inferences to be drawn therefrom. This being so, where is there any room within which the claimed presumption can come into play? The case should go back for a new trial.
Dissenting Opinion
It seems to me we are agreed that, if the suicidal conduct of the deceased had been that of an adult, he would have been guilty of contributory negligence as matter of law. This being so, it was prejudicial error to allow the jury to give any weight to the general presumption that one who is accidentally killed was guilty of no negligence proximately contributing to his death. *384
Hence it seems to me there should be a new trial. But there is no occasion for reëxamining the question of defendant's negligence. The verdict has settled that issue against it on adequate evidence. The new trial, in my judgment, should be limited to the single issue whether the youth of the deceased excused him from the charge of contributory negligence.
