73 S.E. 142 | N.C. | 1911
This action was brought by the plaintiff to recover damages for the death of his son, which is alleged to have been caused by the negligence of the defendant. The intestate of plaintiff, his 6-year-old son, was killed by an electric shock received from a loose guy wire, suspended from a pole on which was strung the wires supplying defendant with power to run its cotton mill. This pole was on defendant's property and belonged to it. The guy wire was attached to the top of the pole, and fastened at the other end to a piece of timber in the ground. This guy wire was for the purpose of holding the pole in place. The wires — three of them — which carried the current were naked, that is, they were uninsulated except where they were fastened to the cross-arm on the poles. This guy wire was fastened to the pole above the cross-arm and came down between two of the electric wires, passing within some 8 inches of one of them. Some six or eight months prior to the *417 boy's death, the earth had been removed from the place where the guy wire was fastened in the ground, so that it became loose. It was permitted to hang loose against the pole for several months before the injury. The plaintiff, with his family, lived in one of the defendant's dwelling-houses. Two of his children worked in the mill. The house was only a short distance from this pole, only 50 yards or more. Plaintiff testified that the pole was just beyond the corner of his garden patch. The evidence indicates that there were some twenty or more of the mill dwellings; that there were no fences about them, and that people, children and others, were accustomed and were permitted to go about the settlement pretty much as they pleased. This pole stood some 10 feet or more from the railway track, which at that point ran through a cut. There was a path on the side of the cut and between it and the pole. Any one who desired to do so used this path. There is much evidence in the record that children had been accustomed to play about this pole, on the railway bank, and they were seen on several (531) occasions playing about it, playing with this loose guy wire, swinging on it out from the pole and back. This fact had been reported to the agents of the defendant. It was admitted that the wires on the pole carried a current of 2,200 volts, and the evidence shows that such a current is highly dangerous and deadly.
At the close of the testimony the defendant moved to nonsuit the plaintiff. This motion was overruled, and whether it should have been granted depends upon the state of the evidence. Defendant appealed.
The negligence charged against the defendant is the maintaining by it of a highly dangerous and deadly condition and instrumentality on premises which were uninclosed, and which were in an attractive place to children, and on which defendant knew, or by the exercise of reasonable care ought to have known, that small children were accustomed to play. There was ample evidence to sustain this allegation. The contention of the appellant is that the child was a trespasser, to whom it owed no duty except to refrain from willfully injuring it. If the injury had been to a person of such mature age that he could appreciate the nature of his acts, and the dangers attached to the situation, we would agree with this contention. But when, as in this case, the injury is suffered by a 6-year-old boy, under such circumstances and surrounding conditions as the evidence showed to exist, a *418
different rule of law governs the conduct and liability of the defendant. What did this 6-year-old boy know about the dangers of electricity? What could he possibly have known about the rules of property and the laws of trespass? Technically, he may have been a trespasser on defendant's land, but all he knew about it was that it was an attractive place to play, and that it was where he and the other little children of the neighborhood were accustomed to play, and had been playing (532) for months past. The defendants knew, or ought to have known, that this pole with the loose guy wire attached to it was an instrument of death, which might become effective to any one who came in contact with it. The defendant also knew, or ought to have known, that the children were in the habit of playing about this pole, and that they were also in the habit of swinging on the loose guy wire. Under these circumstances, the law will not permit the defendant to allege a technical trespass and thereby shield itself from the consequences of its negligence, resulting in the death of the son of the plaintiff. The doctrine of the "turntable cases" was first before this Court in the case of Kramerv. R. R.,
In Briscoe v. Power Co.,
The Harrington case, supra; Haynes v. Gas Co.,
Henderson v. Refining Co.,
In Snare v. Friedman, 169 Fed., 1, it is said: "We think in reason and in consonance with the legal principles by which the duty of individuals to protect others from dangers that may result from the use of their own property is determined, and by which they are held responsible for their negligent acts in that regard, this defendant owed a duty to children of tender years who to its knowledge were accustomed to play on the public streets in the vicinity of these piles of beams, and also to play and sit thereon, to use due care under the circumstances to prevent the piles from being in such an unstable condition as would be likely to cause injury to such of these children as might come in contact therewith."
Pierce v. Leyden (C.C.A.), 157 Fed., 552, holds: "Defendant maintained a shed in a railroad yard of about two acres near a schoolhouse in a city, in which he kept open barrels of oil. During the daytime the shed was left unlocked, and for several months children living in the vicinity who played in the yard had been in the habit of stealing oil from the barrels and making fires with it in the yard, which (538) fact was known to defendant's watchman. On one such occasion, plaintiff, who was an infant, was burned and injured. Held, that defendant was chargeable with notice of such practice of the children, from its long continuance and the knowledge of its watchman, *423 and that the question of its keeping the place in such condition in view of the danger of their injury therefrom was for the jury."
In Akin v. Bradley,
Appellant's sixth exception is equally without merit. The defendant's liability in this case is in no wise dependent on the question as to whether the pole was on or off the premises which it had rented to plaintiff, father of the dead boy. In either event, the pole was not rented to the plaintiff. Nor would it make any difference if it had been, except that it may have rendered the question of the negligence of defendant more positive and clear. Turner v. Power Co.,
Appellant's seventh exception is to the refusal of the court to charge the jury that plaintiff's cause of action was barred by his contributory negligence. Under the facts disclosed by the evidence in this (540) case, the plaintiff and his wife were not guilty of contributory negligence in permitting their 6-year-old boy go out into the yard to play. In Day v. Power Co., 136 Mo. Ap., 274, plaintiff's 6-year-old boy was killed by contact with a live wire which was strung near the end of a roof; plaintiff lived on the third story of a building, and this roof was used as a kind of back yard. As to the mother's contributory negligence, the Court says: "There is no sufficient ground in the facts before us for declaring the mother of the child guilty in law of negligence. Under the facts disclosed, the characterization of her conduct was an issue for the jury to solve. There is no merit in the suggestion that the child, only 6 years old, was guilty of contributory negligence." In Henderson v. RefiningCo., supra,
As to the eighth exception, upon the question of contributory negligence, there is no evidence that the plaintiff knew of the condition of the pole and loose guy wire till August. The same may be said as to the contention that the parents were negligent in not warning the boy to keep away from the wire. It was not so clear a duty that the court could declare it as a matter of law.
The ninth exception is to the court's definition of negligence. (543) This exception is without merit, particularly as the court charged the jury as follows: "But if you find a reasonably prudent man ordinarily would have permitted that wire to remain as it was in the place as it was, detached from the ground, then it would not be negligent in the company in having it in that condition; or if you should find that it was not the proximate cause of the plaintiff's intestate's death, why you should answer the first issue No." Hicks v. Telegraph Co., ante, 519. *427
What has been said in regard to the preceding assignments of error, together with the authorities set out, and the principles stated, disposes of the other exceptions. Those facts of this case which are uncontested present a clear case of negligence, the jury having found against the defendant's contention, under the charge of the court, which gave to it the benefit of every principle of law to which it was fairly entitled. At very small expense, the defendant, with notice of the dangerous situation, could by the exercise of the slightest care have prevented this accident, and the wonder is that it did not at once take steps to do so. It may be that the courts, in view of so many injuries from this deadly agency, which without proper care is a constant menace to the public, will have to suggest that companies who make use of it in their business must either convey it by wires laid underground or so safeguard their wires as to remove this ever-increasing danger to those who, in their ordinary avocations, must come in close proximity to this subtle, dangerous, and oftentimes fatal current. It is no injustice or hardship to the defendant that we hold it liable under the conceded facts of this case.
No error.
Cited: Greer v. Lumber Co.,
(544)