314 Ky. 252 | Ky. Ct. App. | 1950
Affirming.
The judgment is for $2,000 for personal injuries sustained by an eleven year old boy, Floyd Garland, by electric shock and burns and a fall from a tree, through the branches of which ran uninsulated transmission wires carrying 4,000 volts. There is no substantial disagreement as to the facts. The appellant seeks a reversal of the judgment on the ground that it was entitled to a directed verdict.
The tree was located on a steep slope 35 feet from the shoulder of a state highway and 26 feet on a direct horizontal plane. Eight or ten feet beyond the tree was an abandoned county road which was still used occasionally as a public passway. A creek ran a few feet beyond it. On the other side of the creek, some 150 to 200 yards away, was the Glendon Mining Camp in which lived 25 'families with many children, including this boy. This was near the settlement of Arjay. The tree was a sugar maple with low branches, and a small stump or fallen tree beneath it made it very enticing to small boys. The accident occurred in July, 1947, when the tree was, of course, in full leaf. A nearby pole to which two electric wires were strung leaned so that the lines were brought within five feet of the trunk of the tree. It was easy to see the wires entering and leaving the branches of the tree, but they could not be seen in the- foliage.
The record is silent as to the ownership of this property, but it is shown that the Utilities Company had a right-of-way for the line of an undefined width. There were no fences between this place and the highway above it or the terrain below it through which the creek ran, or even beyond that to the houses. It is shown by several children and their parents that the children of the mining camp were in the habit of playing there catching crawfish, wading the creek, playing cowboy and hide and seek along the banks, in the bushes and up this particular tree, which was so easily climbed and afforded such a good hiding place.
We may dispose of the argument that has the least
It can hardly be questioned that to maintain high voltage, uninsulated wires through thick foilage of a
As we have indicated, it appears that this tree was on the public highway or public passway or in the space between. If it was on public property, then the injured boy was not a trespasser, and liability, could be based upon negligence in the maintenance of a dangerous condition, the law of attractive nuisance not being applicable, for as said in Reynolds v. Iowa Southern Utilities Co., 8. Cir., 21 F. 2d 958, 959, where an eleven year old boy was killed by electricity when he climbed a tree in a public street, in which tree the boys of the neighborhood played, “The boy had a right to be in the tree.” Cf. City of Madisonville v. Nisbet’s Administrator, 270 Ky. 248, 109 S. W. 2d 593. See Annotations 17 A. L. R. 837.
This case, however, was practiced under the doctrine of attractive nuisance. Of course, everyone will agree that the tree itself was harmless and by itself cannot be brought within that rule. But a tree of this character is alluring to a boy and is “attractive” for it may reasonably be expected to attract children to the premises. The “nuisance” element arises from having permitted the tree to be charged with electricity. The combination made the alluring tree an attractive, dangerous instrumentality on the defendant’s premises, which is the basis of the doctrine of attractive nuisance. This distinguishes such cases as Jarvis v. Howard, 310 Ky. 38, 219 S. W. 2d 958, where the instrumentality was itself not dangerous. The question in the case is whether there was a duty to anticipate that a boy would climb the tree thus charged with electricity, or, extending the thought, that one exercising the highest degree of care should reasonably have known or have expected that children would congregate and play at the place.
Perhaps closer to the instant case are those cases where electric lines on public ways ran through branches of trees located on adjacent private grounds or playgrounds and children were hurt or killed when they climbed the trees. The cases are brought together in Annotations,. “Duty to guard against danger to children by electric wires” under the captions, “Wires on
If the inherently dangerous condition was not in fact on the public way, as it appears to be, but on the defendant’s exclusive property, the factor of the boy being a trespasser passes out of the case so far as the right to a. directed verdict is concerned, for at least it
In appreciation of the legal responsibility to exercise the highest degree of care in distributing electricity we cannot say as a matter of law that the defendant was under no duty to anticipate that the many children living so close to the point, even though it had no actual knowledge of their habit to play around the tree, might not get hurt by this negligent condition and that it is not liable for the consequences. Maybe Little Lord Fauntleroy would not have played in this rough place, but it was a natural habitat for Huckleberry Finn and these vigorous, outdoor country boys, living a couple of hundred yards away. It is not so much a question of actual knowledge as it is of anticipation. 18 Am. Jur., Electricity, Secs. 72, 73. In principle, we have for application Union Light, Heat & Power Co. v. Lunsford, 189 Ky. 785, 225 S. W. 741; Louisville & N. v. Vaughn, 292 Ky. 120, 166 S. W. 2d 43; Deaton’s Administrator v. Kentucky & W. Va. Power Co., 291 Ky. 304, 164 S. W. 2d 468. See also of special pertinence Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330, 41 A. L. R. 1323; Cooper v. North C. Power Co., 117 Or. 384, 244 P. 671, rehearing, 117 Or. 652, 244 P. 665, 666, 245 P. 317, (note 45 A. L. R. 991).
The judgment is affirmed.