Ferrell v. . Cotton Mills

73 S.E. 142, 157 N.C. 428, 1911 N.C. LEXIS 86
CourtSupreme Court of North Carolina
DecidedDecember 23, 1911
StatusPublished
Cited by11 cases

This text of 73 S.E. 142 (Ferrell v. . Cotton Mills) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferrell v. . Cotton Mills, 73 S.E. 142, 157 N.C. 428, 1911 N.C. LEXIS 86 (N.C. 1911).

Opinion

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 *Page 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 *Page 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., 127 N.C. 328. There the 9-year-old son of plaintiff was killed by climbing upon a pile of cross-ties negligently stacked by defendant in an unused portion of one of the streets of the town of Marion. The Court held that plaintiff's son was not a trespasser; but it further says: "If he was too young to be bound by any rule as to contributory negligence and had a habit of playing, with other boys, on the crossties with the knowledge of defendant, and without the defendant's attempting to prevent such sport or to take precaution against injury to the children, then the defendant was negligent. In such a case the defendant's negligence would not consist in piling the cross-ties in the street, but it would consist in its failure to guard against injury to the children, after it had learned of their habit of playing on the ties, and its failing to provide against their injury."

In Briscoe v. Power Co., 148 N.C. 396, plaintiff was not permitted to recover, as the evidence failed to show that the premises of defendant were especially attractive to children, or that children were accustomed to play there; and also that this rule of law had never been held applicable in the case of a boy 13 years of age. But, in the course of the opinion, Mr. Justice Connor states his approval of the rule of law which we think is applicable to the case in hand. On page 411 he says, quoting from 21 A. and E. Enc., 473: "A party's liability to trespassers depends on the former's contemplation of the likelihood of their presence (533) on the premises and the probability of injury from contact with conditions existing thereon." Immediately following this language, the editor says: "The doctrine that the owner of premises may *Page 419 be liable in negligence to trespassers whose presence on the premises was either known or might reasonably have been anticipated, is well applied in the rule of numerous cases that one who maintains dangerous implements or appliances on uninclosed premises of a nature likely to attract children in play, or permits dangerous conditions to exist thereon, is liable to a child who is so injured, though a trespasser at the time when the injuries were received; and with stronger reason, when the presence of a child trespasser is actually known to a party or when such presence would have been known had reasonable care been exercised." In Harrington v. Wadesboro,153 N.C. 437, plaintiff was permitted to recover for the death of her son, a 17-year-old boy, who was killed by catching hold of a wire which was hanging low over a path used by people in going to a moving-picture show.

The Harrington case, supra; Haynes v. Gas Co., 114 N.C. 203; Mitchellv. Electric Co., 129 N.C. 166

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Cite This Page — Counsel Stack

Bluebook (online)
73 S.E. 142, 157 N.C. 428, 1911 N.C. LEXIS 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferrell-v-cotton-mills-nc-1911.