289 S.W. 597 | Mo. | 1926
Lead Opinion
Plaintiff, a minor, sues by next friend to recover the sum of $100,000 for personal injuries suffered by him and alleged to have been caused by defendant's negligence. The petition charges:
"Plaintiff, for amended cause of action, states that James W.A. Howard, Sr., is duly appointed next friend, for the purpose of prosecuting this suit; that the defendant herein is a corporation, duly incorporated and operating under the laws of the State of Missouri; that defendant, at all times herein, negligently operated and maintained a high-power electric service line, in a public highway; that said line consisted of three uninsulated electric wires, carrying a high voltage of electricity, to-wit, 11,000 volts, sufficient to cause death if allowed to pass through the human body; that said line was supported by poles about twelve inches in diameter, which were situated in and along a public highway and near the west line of the right of way of said highway, in Andrew County, Missouri, and near the town of Amazonia; that, at all times herein, there was a running stream of water that flowed in close proximity to the pole and line where the accident occurred, to-wit, about fifty feet; that there was no fence or barrier to mark the dividing line between the roadway and stream; that said running stream and the bank thereof and the public highway, at the point wherein the accident, hereinafter complained of, occurred, was a resort for children and boys of the village of Amazonia and of that locality, and was frequented by large numbers of the same, for the purpose of engaging in the sport of swimming, fishing and play; that the fishing was done with poles and rods and hooks and lines; that the children and boys in that locality drove and led cattle and horses to water in the stream and graze at said point, by way of said highway and across and under said wires; that one of said poles was located in the highway at the point where the accident occurred; that two large trees were located within close proximity to said pole and between it and the stream; that their branches extended over and among said wires; that said trees and poles, by reason of their environment and accessibility, were attractive to children and that they were likely to climb the same; that the *320 children and boys, in going to and from the creek at said point, passed under said electric wires, and while engaged in the sport of fishing and swimming and play, they were around and under and about said pole and wires and trees, in large numbers, at all hours of the day;
"That defendant negligently attached to said pole a signal, or telephone wire, composed of two wires; that said wires were negligently attached to the pole by two wooden brackets or pegs, the upper end of each bore a glass insulator; that the brackets were about twelve inches long, nailed to the pole; that defendant negligently placed one above the other, on the same side of the pole; that the lower bracket was negligently placed about eight feet and six inches from the ground; that the top of the second bracket was negligently placed about two feet and five inches from the base of the first bracket; that the top of the second bracket was negligently placed about two feet and two inches from a heavy two-pronged metal bar, attached to the pole, which bar supported the three high powered electric wires; that said bar, at the lowest point, was negligently placed about thirteen feet and one inch from the ground; that defendant was negligent in placing said wires and brackets and bar in such close proximity to the ground and to each other, thereby rendering them accessible and attractive to boys and children, and dangerous; that said place was rendered dangerous by reason of all the facts and negligent acts heretofore stated, for the reason that said fishing hooks and lines were likely to become entangled in said wires, so situated in defendant's pole, and the boys were likely to climb said pole for the purpose of releasing said hooks and lines.
"Plaintiff further states that by reason of the signal wire being attached to the pole by brackets, instead of cross-arms, and that said brackets were so situated that children could stand upon the same and reach the high voltage wires above, rendered said premises dangerous; that defendant was negligent in not maintaining some kind of a barrier or danger or warning sign, at the aforesaid place.
"That, by reason of all the facts, heretofore stated, and by reason of all the negligent acts, heretofore stated, defendant was negligent in maintaining, within the attractive environments aforesaid, said pole and electric wires and signal wire, for the reason that they rendered said place dangerous; that, by reason of all the facts and negligent acts, heretofore stated, and by reason of the location of said trees, said pole and wires were attractive to children and rendered said place dangerous, since they were likely to climb the same; that by reason of all the facts and negligent acts, as heretofore stated, said fishing poles and rods, while being used as aforesaid, or while being carried in going to and from said place, were likely to come in contact with said high voltage wires and thereby injure said children. *321
"Plaintiff states that all of the facts and negligent acts, as heretofore stated in this petition, were known to defendant or could have been known by the exercise of the highest degree of care, in time to have remedied same.
"That on or about the 5th day of July, 1922, the plaintiff, an infant of tender years, to-wit, nine years old, was at said point and environment; that he climbed said pole for the purpose of releasing a hook and line from said wires and, in doing so, came in contact with the deadly wires, aforesaid, and received into his body from said wires sufficient electricity to produce the injuries hereinafter described.
"Plaintiff states that he, at all times herein, was in the exercise of ordinary care and that he had no knowledge that said wires carried electricity.
"Plaintiff states that by reason of all the facts and negligent acts, heretofore stated, of the defendant, he received the following injuries, to-wit, his leg and arm were so injured and burned that it was necessary to amputate the same, to his damage, in the sum of one hundred thousand dollars.
"Wherefore, plaintiff prays damages in the sum of one hundred thousand dollars, and his costs herein expended."
The defendant filed a demurrer to the petition on the single ground "that said petition fails to set forth facts sufficient to constitute any cause of action against this defendant." The demurrer to the petition was taken up by the trial court, arguments heard thereon, and the court thereupon sustained the demurrer. Plaintiff refusing to plead further, the trial court entered a final judgment, dismissing plaintiff's petition and assessing the costs of the action against plaintiff. Plaintiff appeals to this court from the final judgment entered below.
Plaintiff bottoms his cause of action upon the so-called "attractive nuisance" doctrine, which has been the subject of much judicial dissertation and varying legal conclusions in this and other jurisdictions; or perhaps, to speak more accurately, plaintiff seeks recovery by extending or enlarging the "attractive nuisance" doctrine, or by engrafting on the jurisprudence of this State a new doctrine (which, however, although by variation, is still in fact, and may properly be so denominated, the "attractive nuisance" doctrine) based upon what appellant sees fit to term "an unattractive dangerous instrumentality in or near an attractive environment." But by whatever name or term the theory of recovery of plaintiff may be called, his theory of recovery, as expressed in the language of his petition, is clearly that "by reason of all the facts, heretofore stated, . . . defendant was negligent in maintaining,within the attractive environments aforesaid, said pole and electric wires and signal wire, *322 for the reason that they rendered said place dangerous; that, by reason of all the facts and negligent acts, heretofore stated, and by reason of the location of said trees, said pole and wireswere attractive to children and rendered said place dangerous, since they were likely to climb the same."
Counsel for respective parties herein, with commendable diligence, have ably and fully briefed their respective legal contentions, and have cited practically all of the authorities, both of this and of foreign jurisdictions, bearing upon the legal question now before us. In so doing, they have, in one sense, greatly lightened our labors in arriving at what is the established law on the subject, as supported by the weight of judicial authority. We have read and attempted carefully to analyze, without a single exception, all of the many cases cited by respective counsel. It would unduly prolong this opinion beyond reasonable bounds were we to refer to, and comment upon, each and all of the many decisions and judicial rulings which counsel, by their industry, and only after extensive research, have discovered and cited in their respective briefs. We will, therefore, be content to refer to a few of the leading and well-reasoned authorities of this and other jurisdictions pertaining to the subject now before us.
The authorities most strongly supporting appellant's contention, viz., that his petition states a cause of actionable negligence against defendant, are Znidersich v. Minnesota Utilities Co.,
Looking to plaintiff's petition in the case at bar for the evidentiary facts upon which he seeks to hold defendant liable, which facts, of course, must be taken as true for the purposes of the demurrer, we find that the uninsulated power line "was supported by poles about twelve inches in diameter" and "that defendant . . . attached to said pole a signal, or telephone wire, composed of two wires; that said *324 wires were negligently attached to the pole by two wooden brackets or pegs, the upper end of each bore a glass insulator; that the brackets were about twelve inches long, nailed to the pole; that defendant . . . placed one above the other, on the same side of the pole; that the lower bracket was . . . placed about eight feet and six inches from the ground; that the top of the second bracket was . . . placed about two feet and five inches from the base of the first bracket; that the top of the second bracket was . . . placed about two feet and two inches from a heavy two-pronged metal bar, attached to the pole, which bar supported the three high powered electric wires; that said bar, at the lowest point, was . . . placed about thirteen feet and one inch from the ground." It is apparent that there were no convenient pegs, or ladder, upon the sides or circumference of the pole, by which plaintiff could have readily or easily climbed to the metal bar, near the top of the pole, which supported the electric wires. The lower of the two brackets or pegs, supporting the telephone signal wires, was approximately eight feet above the surface of the ground, and it is obvious that a nine-year-old boy could not have reached with his extended arms the lower peg and thereby climbed to the top of the pole; the only way by which he could have ascended the pole was by "shinning" up the pole, at least to a point in the circumference where he could reach upwards with his arms and grasp the lower bracket or peg with his extended fingers. No appliance fastened to the pole could be reasonably deemed an implied invitation, even to a child of tender years, to climb the pole, and the charged and uninsulated electric wires were some thirteen feet, or more, above the surface of the ground, well beyond the reach of any person, adult or child, and endangering no one who was in a place of safety upon the ground. The evidentiary facts pleaded by plaintiff clearly distinguish the instant case from those cited by appellant.
Appellant places reliance upon Williams v. Gas Electric Co.,
Appellant also relies upon the ruling of the Kansas City Court of Appeals in Kribs v. Light, Heat Power Co., 199 S.W. 261, wherein the decedent was crossing a pasture and came in contact with a cable, curled up in the weeds on the ground, which cable for some time prior to the casualty had lain, and was still lying, across a charged wire of an abandoned and unused power line. The facts clearly differentiate that case from the case at bar. In Harrison v. Electric Light Co.,
Respondent insists that, upon the facts pleaded in the petition herein, it was lawfully maintaining its pole and power line along the edge of the public highway; its poles were not equipped with steps or ladders; there was nothing about the pole to make it attractive and thereby lure a boy to climb the pole in play or in sport, or to offer an *326 invitation to any child to climb the same; that the pole was the private property of respondent, and the moment that plaintiff left the ground and began to ascend the pole, he became a trespasser on the property of respondent, where he had no lawful right to be and no invitation to be; that the wires upon the pole in no way endangered plaintiff so long as he remained on the ground, where he could not possibly have come in contact with, or even in close proximity to, the wires; and that the doctrine of "attractive nuisance," as recognized in the jurisprudence of this State and other jurisdictions, should not be extended or enlarged to apply to the pleaded facts in the instant case.
This court has very recently ruled (June 14, 1926), in an opinion delivered in Banc and concurred in by all of the judges of this court, that the "attractive nuisance" doctrine will not be extended beyond the so-called "turn-table" cases, wherein it had its inception in this country. [State ex rel. Kansas City Light Power Co. v. Trimble,
In Kelly v. Benas, 217 Mo. l.c. 13, a nine-year-old boy, with other boys, engaged in flying a kite, climbed upon a shed eighteen inches from a pile of lumber belonging to defendants, and being warned of his danger, got down on the ground, when the lumber pile fell upon the boy and he was killed. The late Judge LAMM, speaking for this division of the court, then said in his usual apt and forceful style: "If the old channel of the law is to be quite changed by the application of the new doctrine automatically and without discrimination, if sentimental considerations (however elevated and tender) are to usurp the place of cold and calm reason as the foundation for rules of law, then the floodgate now damming back liability will be raised, letting in strange and deep waters for the landowner to struggle with. . . . Shall he fence against adventurous, trespassing boys? Almost as well suggest `that he build a wall against birds.' . . . Michael was a trespasser. Defendants did not intentionally injure *328 him. They set no trap for him. Their lumber piles were not an attractive nuisance as defined in the turn-table cases."
So, in State ex rel. v. Ellison, 281 Mo. l.c. 681, a case wherein a boy eight years of age fell from the top of a retaining wall in a city public park, a distance of nearly twenty feet to the ground, and was injured, we said, in Banc: "This court has consistently refused to extend the turn-table doctrine. . . . For a full review of all the cases see the recent opinion of FARIS, J., in Buddy v. Union Terminal Ry. Co., 207 S.W. 821. . . . It is sufficient to say that the ruling of the Kansas City Court of Appeals in sustaining instruction three for plaintiff in the instant case, controverts the rule announced by this court in each of the three cases, supra. [Kelly v. Benas, 217 Mo. l.c. 13; O'Hara v. Gas Light Co., 244 Mo. l.c. 404; Buddy v. Terminal Ry. Co., 207 S.W. 821.] In other words, an enclosing wall of a tract of ground is not an attractive nuisance within the rule fixed by this court."
In Buddy v. Terminal Railway Co.,
In Rallo v. Construction Co.,
The refusal of this court to extend the "attractive nuisance" doctrine beyond the principle of the turn-table cases finds support in the rulings of other and foreign jurisdictions. The Supreme Court of the United States, in Railroad Company v. Fruchter,
In Wetherby v. Gas Electric Co.,
In Water Light Company v. Webb's Admr.,
In Graves v. Power Co.,
In Trout v. Electric Co.,
See, also, Johnston v. Electric Light Co.,
Were we to hold respondent liable for negligence under the pleaded facts in the instant case, it would mean that an electric company is an absolute insurer of the safety of children under almost every possible or conceivable circumstance, regardless of whether the company has used reasonable, or the very highest, care in placing its wires out of reach of those who would ordinarily be in no possible danger of coming in contact with them, and regardless of whether the child is injured solely by reason of being a trespasser upon the pole of the electric company, without being lured or invited upon the pole because of any of its attractive or convenient appliances or fixtures. Such a holding would be contrary to every sense of justice, fairness and right, and would be violative of the long-established principles of the law of negligence as announced in this, and the great majority of foreign jurisdictions. The mere fact of an accident and resultant injury does not, as a general rule, make out a prima-facie case of negligence. [39 C.J. 972; Fuchs v. St. Louis,
Addendum
The foregoing opinion by SEDDON, C., is adopted as the opinion of the court. All of the judges concur, except Graves, J., absent.