38 Pa. Super. 3 | Pa. Super. Ct. | 1909
Opinion by
The defendant corporation was engaged in furnishing electric light to the borough of Ashley. Its high tension current was carried through the streets by overhead wires strung on poles,
On a summer afternoon the plaintiff, a boy of tender years, was playing, with some companions, about the tree and climbed up among the branches. Whether any part of his body came into actual contact with the live wire is not made clear, but there is no room to doubt that he received an electric shock of such intensity as to render him unconscious. His body being supported by the forks of the tree, he did not fall, and, aid coming quickly, he was lifted down to the sidewalk where an examination disclosed marks, as of burns, at several places on his body.
The record, as the case comes to us, does not require any discussion as to the extent of his injuries; it is sufficient to say that after his recovery this suit was brought and the trial resulted in a verdict and judgment in his favor.
It was not contended in the court below, nor is it here, that the doctrine of contributory negligence has any application to the case on account of the tender years of the plaintiff. It was not denied there, nor is it here, that, under the evidence, the defendant would be visited with at least constructive knowledge of the dangerous condition of its wire, and that, had an injury resulted therefrom to one, towards whom, at the time and place of the injury, the defendant owed any legal duty in respect to the condition of its wires, its responsibility would be made out.
The plaintiff therefore, in climbing the tree, was in no sense committing any trespass or infringement upon any right of the defendant; nor did his act need the aid of any invitation, permission or license from the latter to keep it in the category of wholly innocent acts. Had the tree been an apple tree bearing luscious fruit and, had the owner, whilst picking that fruit, re-' ceived the same injury as did the plaintiff here, could the defendant successfully contend it owed him no duty in respect to the condition of its wires? If the owner, instead of gathering his fruit himself, had expressly invited and authorized the plaintiff to take it for his own use or for distribution among his fellows, would the situation be materially different? Or can it be that the yoke of responsibility would be lifted from the shoulders of the defendant if the permission of the owner was general, to the boys of the neighborhood, rather than particular to one of them; was implied from his conduct rather than expressed in words?
Is it true in such cases, or in the case at bar — if the supposed ones are not ejusdem generis- — the defendant owed no duty
In this carefully chosen language, quoted and adopted in Daltry v. Media Electric Light, etc., Co., 208 Pa. 403, our highest judicial tribunal has plainly defined the measure of the defendant’s obligation and described the class, to every member of which the law extends the protection that would be secured by the faithful discharge of that obligation. Why was not the plaintiff in that class? Upon what theory can the defendant successfully contend that he was not “lawfully in proximity to its wires?” Upon what principle of law or reason may it rest the claim that this boy was bound to repress the natural and wholly innocent impulse to climb up among the shady branches of the tree on a summer afternoon, to the end that it should be relieved of its obligation to remove or repair its dangerous wire? We can discover none.
In Daltry v. Light, etc., Co., 208 Pa. 403, it appeared that the plaintiff, a young boy, and his companions were accustomed to play on a lawn owned by a gentleman who occupied the residence only during portions of the year. At the time of the accident the house was closed. When occupied it was lighted by electricity furnished by the defendant. The current was carried from the pole line in the street by a wire across and above the lawn to the building. Before it was vacated the company was requested to cut off its current so it would not pass into the empty house. “This was done by taking out the fuses at the transformer which rested against the side, and just beneath the eaves, of the house. The electric current was thus prevented from entering the house but not from passing through the wire extending from
One of the grounds of defense taken by the company at the trial of the action which followed the injury was that the plaintiff was a trespasser on the lawn and therefore it owed him no duty at that place. In an elaborate opinion Mr. Justice Mestrezat shows the unsoundness of such a defense and again declares the existence of the obligation of a defendant under conditions closely resembling those presented by the case at bar. “If it be conceded that the boy was technically a trespasser as against Mr. Darlington who owned the premises, he was not a trespasser as against the defendant company who had neither the possession nor right of possession of the property. . . . Assuming then, as we must assume, that the defendant company was in possession of, and using, the wire for the purpose of transmitting its electric current, and that as against it the boy was not a trespasser, its duty to the children at the place and time of the accident was to exercise such care over the wire as was demanded by the great danger to which they were exposed. Having constructed the line across the lawn to the house in proximity to the carriageway, it knew that children as well as adults might frequent the way and, hence, the necessity for keeping its wires in proper condition and repair to avoid danger. It must be presumed that the company also knew what the evidence disclosed as a fact that children used the lawn of the premises near the gateway and in the vicinity of the wire as well as the street in front of the premises as a playground. Such conditions existed for a sufficient length of time to warrant the inference of notice to the company.” So similar in principle and fact is that case to this that the language quoted might have, with equal propi’iety, been written of the case at bar.
Again in Kreiner v. Straubmuller, 30 Pa. Superior Ct. 609, this court had occasion to consider the rights of children playing .
No one of the cases cited by the learned counsel for appellant is in conflict with the principles and rules enunciated in the cases from which we have quoted, or with the conclusion which must follow from their application to the case at bar. Of Guilmartin v. Philadelphia, 201 Pa. 518, the one nearest in principle to this one, Judge Henderson observed: “In the latter case the child was injured by a falling gate on which he had climbed. The city was not required to anticipate dangers resulting from the improper use of objects safe in themselves, and for the use for which they are designed. In the same case, however, it is said: ' If an object was in itself dangerous, or might become dangerous if a child chanced to set it in motion while playing with it, or by running against it, there was a duty on the city to take such precaution as was reasonable, under the circumstances, to prevent injury by it.’”
We are therefore led to the conclusion that the plaintiff was
Judgment affirmed.