Bonniwell v. Milwaukee Light, Heat & Traction Co.

JoNES, J. This is one of a class of cases which must always appeal strongly to the sympathy of every one cognizant of the facts. A bright, spirited boy, full of the buoyancy of youth, thoughtless of danger, undertakes a too hazardous venture and comes to his untimely death. We are confronted with the question whether upon the record and the facts proved the verdict can be sustained and the owner of the property on which the accident happened can be held responsible. [5] The grounds of negligence on the part of the defendant which are relied on are that the trolley poles, steel towers, and spikes or foot-rests were attractive and alluring to children; that the fence was out of repair; that children had been allowed to play on the land of defendant and had loitered about the towers and poles as defendant knew; that one of the towers was within 100 feet from a pathway; that the high-tension wire which the boy touched was so strung upon the wooden poles that it passed within easy reach of the steel tower; that defendant had failed in its duty to so manage its current as to protect children, and to so construct and operate its towers and wires that it would be impossible for.children of immature age to reach the wires; to use properly insulated wires; and generally to take such other precautions as would have been adequate to prevent the boy from coming in contact with the wires. The defendant was bound to use that degree of care which was reasonably adequate to meet and avoid the dangers which ought to be anticipated under the circumstances. In dealing with so dangerous and mysterious an agency as electric wires, it is evident that persons in their management must use a high degree of care to avoid injury to those who are lawfully liable to come in contact with them. Nagel v. Hake, 123 Wis. 256, 101 N. W. 409; Wilbert v. Sheboygan L., P. & R. Co. 129 Wis. 1, 106 N. W. 1058. In this case there was no proof that before this unfortunate accident any persons except the employees of defendant had ever attempted to climb any of the towers in question. The foot-rests or spikes, called ladders, were eight and one-half feet from the ground. It is true that boys had climbed as high as the first cross-bar and the lowest foot-rest of the ladder, about seven and one-fourth and eight and one-half feet, respectively, above the ground, and had swung upon the cross-bar. The towers were of standard construction, and the only difference suggested is based on the testimony of an engineer, employee of defendant, who on cross-examination was asked this question: “Do you [6] know of any other place on the line from West Allis to Kil-bourn where a wire approaches within fifteen inches of the tower, at a point within thirty-five feet from the ground?” and answered: “I don’t know of any.” This was hardly equivalent to a statement that the arrangement of wires at this point departed from the usual mode of construction. It is argued that this partial insulation which was used to prevent the arcing of the current from the wire to the tower when the wire was swayed by the wind should have been made a complete insulation or that there should have been an extra sign and warning that it was dangerous. This brings us back to the question whether the defendant was reasonably bound to anticipate that boys would climb to a height of about thirty feet by circling around upon the narrow cross-bars. The case most relied on by-respondent’s counsel is Meyer v. Menominee & M. L. & T. Co. 151 Wis. 279, 138 N. W. 1008. In that case there was a lumber pile about twenty-four feet high, easy of access for children by steps of projecting boards. It was adjacent to a much traveled private road, did not belong to defendant and was not on defendant’s property, and large numbers of children, as defendant knew or ought t-o have known, had long been accustomed to play upon the lumber pile. A boy playing on the lumber was killed by contact with sagged electric wires veiy defectively insulated, twenty-one inches above the top of the lumber. Defendant had been notified of the condition of the wires and poles eight months before the accident. The wide distinction between that case and the instant case seems to us too obvious to call for discussion. Another case cited and quoted by respondent’s counsel and one more analogous to the present case is New York, N. H. & H. R. Co. v. Fruchter, 271 Fed. 419. In that case a boy climbed upon some portion of a bridge which had some apparatus of electric wires on top, and was injured. It does not appear how difficult a feat it was for the boy to climb to the height of the wires. Although the rule is different [7] in New York where the accident happened, the court felt bound to follow the rule of the federal court as declared in Railroad Co. v. Stout, 17 Wall. 657, which is recognized as the leading case declaring the turntable or attractive-nuisance doctrine. In the case of Zartner v. George, 156 Wis. 131, 135, 145 N. W. 971, Mr. Justice Vinje used this language: “Shall the doctrine of the Turntable Cases, or of attractive nuisances, in its widest scope be applied to the conduct of ordinary business carried on in a customary manner upon private property? It has not yet so been applied in our state.” See, also, Klix v. Nieman, 68 Wis. 271, 32 N. W. 223 ; Bruhnke v. La Crosse, 155 Wis. 485, 144 N. W. 1100. We are not prepared to apply the doctrine in this case. The rule laid down in Railroad Co. v. Stout, supra, has been much criticised, and has been rejected in many states. In some cases it has been asserted that modern tendencies are toward a restriction rather than an extension of the rule there declared. 20 Ruling Case Law, 81; 19 L. R. A. n. s. 1106. There are several important facts which distinguish this from any case cited by respondent’s counsel. There was no proof that other children had performed or attempted the dangerous feat undertaken by Clarence. When the injury happened he was in a position not easily accessible to children. He met with the injury while engaged in an unusual and extraordinary act. It is argued by respondent’s counsel that Clarence was a licensee and entitled to the degree of care which that relation requires. It is not necessary to decide whether he was a licensee while playing at the foot of the tower. But it seems very clear to us that while circling the tower, and climbing to the height he reached he was a trespasser and that defendant owed no active duty to protect him in the act he was attempting. Wendorf v. Director General of Railroads, 173 Wis. 53, 180 N. W. 128. The owners of private property, whether they be the owners of homes, business places, or traction lines, cannot be [8] held insurers against all accidents which may happen on their premises. The consequences which would result from holding the owners of property to the extreme degree' of care insisted upon in this case are well pointed out in two opinions by Mr. Justice Vinje in Zartner v. George, 156 Wis. 131, 145 N. W. 971, and Emond v. Kimberly-Clark Co. 159 Wis. 83, 149 N. W. 760. We hold that the defendant was not bound to anticipate that a child or children would climb the tower in such a manner as to be endangered by its wires, and that the question of the negligence of defendant should not have been submitted to the jury. Was there such contributory negligence as should prevent a recovery? Clarence was a boy over eleven years'old, of average intelligence. He must have known that the circling of the tower alone was attended with some danger. The statement of facts shows that he knew the dangerous character of electric wires. He had been warned by the dahg'ér sign plainly visible on the tower, by his father, and soon before the accident was warned by his companion. Nevertheless he grasped the wire relying on the fact that it was “padded” and assumed that it was not dangerous. Although we give due consideration to the fact that, the rules as to negligence applying to children and adults are quité different, we are forced to the conclusion that on the plaintiff’s own showing on the uncontradicted evidence, and as -a matter of law, contributory negligence was the direct cause of the death. By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.