Personal injury suit. On the tenth day of August, 1919, the plaintiff, a boy about twelve years of age, while in a walnut tree gathering walnuts, came in contact with one of defendant's uninsulated electrical wires which ran through said tree, and received a shock therefrom which burned and seriously injured him.
The tree was in the pasture on the McElroy farm located on the Missouri River, a mile east of the eastern city limits of Kansas City. The land adjoining on the west belonged to the Missouri Pacific Railroad Company, and on the east to the Standard Oil Company. The town of Sugar Creek was located about a quarter of a mile
or less east of the south part of the farm and the Standard Oil Company's plant, with its Sugar Creek refinery and numerous tanks and buildings, was located about the same distance east of the north part of said farm. The intervening land belonged to the Standard Oil Company, but was mostly vacant and unimproved. The south part of the farm, embracing about 100 acres or more, was known as the McElroy pasture.
Said farm, including said pasture, had been platted and divided into ten-acre lots, but no streets or alleys had been platted therein. But the property immediately adjoining said farm and pasture on the south, and formerly a part of said farm, had been platted by the owners and called Jackson Lithia Place. By this plat, three east-and-west streets were laid out: Pacific Street immediately south of and adjoining the pasture; parallel with it and south of it a block, was Scarritt Avenue; and parallel with Scarritt Avenue and a block south of it, was Kentucky Avenue. Kentucky Avenue was a paved street and connected with Independence Road on the west running into Kansas City, and on the east extended into the town of Sugar Creek. There were also six streets running north and south about 300 feet, or a block, apart. Home Avenue was on the west line of the sub-division; then running east in order were Cedar, Huttig, Ash, Hardy and Poplar avenues. The two north-and-south blocks were about 600 feet in length. Huttig Avenue was paved with macadam from Kentucky Avenue to Pacific Street. Pacific Street was not paved or graded, but was partly in use. The other streets had been partly graded and oiled.
The whole farm for some years had been enclosed with wire fence. There was a stile at the southwest corner of the pasture; also two gates in the south fence, one at the north end of Ash Avenue, and the other at the north end of Huttig Avenue.
The plaintiff had lived with his parents for a number of years on Poplar Avenue in said Jackson Lithia Place, about a block and a-half south of Pacific Street,
and a short block, 235 feet, west of the east line of the pasture extended. The walnut tree in which plaintiff was injured was about a quarter of a mile north of Pacific Street, a few feet west of the east line of the pasture. It was in a small grove of about fifty walnut trees. It was on high ground, but in a draw or depression. There was a pond about 100 feet in diameter, in the pasture, about 700 feet north of Pacific Street and 900 feet west of the walnut grove. Still further north of both the grove and the pond were the old McElroy home or mansion and the house of the care-taker.
At the time of the accident, and for a number of years before, the plaintiff's evidence tended to show that, within one block south of Pacific Street or the south line of the pasture and within three blocks east-and-west, there were as many as thirty or forty residences. And within the general vicinity of two blocks south there were as many as 150 to 200 residences. On the north side of Kentucky Avenue, between Home and Cedar avenues, there was a public school attended by some 300 pupils and a church at the northeast corner of Ash and Kentucky avenues. That families, including a large number of children, lived in these houses, and that they and the school children and teachers and church and lodge people and boy scouts used the pasture for the purpose of holding picnics and camping parties, gathering flowers and pawpaws and walnuts. The children also used it for playing ball and other games. The boys used the pond very frequently, as a swimming hole in the summer time, and to skate upon in the winter. The pasture was also used by some of the neighbors, including plaintiff's father, to pasture their cows. The employees of the Standard Oil Company also went through the pasture to and from their work.
Plaintiff's evidence also tended to show that neither the owner nor the care-taker ever objected to this use on the part of the public, except to the use of the swimming hole in the daytime. That there were no signs or other
warnings against the public using the property until after the accident occurred.
The defendant's electric wires extended from its pole line on Kentucky Avenue north through the pasture near its east line to and beyond the place where plaintiff was injured. It supplied the two houses on the McElroy farm with electricity, as well as some other houses between Kentucky Avenue and Pacific Street, including the plaintiff's father's house. The electric wires had been there for a number of years. About four years before the trial, the wires were insulated, but the insulated wires were taken down about that time, and bare copper wires were put up in their place and were there when the accident occurred. Defendant's employees patrolled the line from time to time prior to plaintiff's injury.
The walnut tree in which plaintiff was injured was about six inches in diameter at the bottom and twenty-five feet high. It was about three inches in diameter at eighteen or twenty feet from the ground where plaintiff was injured. The wires of the defendant passed through the tree at the place where plaintiff was when injured, about twenty-seven inches from its trunk. There were limbs above and below the wires. Also, little stubs of limbs which had been cut off about two, four and six feet from the ground. The wires were about the size of a lead pencil. There was a pole about eight feet north and another about one-hundred and fifty feet south of the tree, on which these wires were strung; they were twenty-five-foot poles, about five feet thereof being in the ground. Defendant's electric wires on Kentucky Avenue were insulated. The bare wires started from plaintiff's father's house running north. Four or five other houses were supplied from these bare wires.
The boys had gathered walnuts in this walnut grove for several years before the accident; men and boys gathered them. The limbs on the tree in which the plaintiff was injured extended out about four or five feet from the trunk, and about six feet above the wires. If the
wires had been placed six feet higher than they were, or six feet west, or ten feet east of the body of the tree, they would have cleared the tree. There was a path about twenty-five feet from the tree which had been made by the Standard Oil Company's employees going to and from their work.
Plaintiff testified: That he had lived with his parents on Poplar and Felton avenues (about a block and a-half south of the southeast corner of said McElroy's pasture) for six years before the trial. That he had gone to the pasture to take the cow and heifers there, get walnuts, flowers and pawpaws, and play various games, and to go swimming and fishing in the pond, ever since they had lived there. Sometimes he would go through the gates and sometimes through or over or under the fence.
The morning of his injury, he and his brother, Fred, and his two cousins, Richard Beddell and George Brundage, and Jimmie Wilson, took the cow over to the pasture, and then went to get walnuts.
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Personal injury suit. On the tenth day of August, 1919, the plaintiff, a boy about twelve years of age, while in a walnut tree gathering walnuts, came in contact with one of defendant's uninsulated electrical wires which ran through said tree, and received a shock therefrom which burned and seriously injured him.
The tree was in the pasture on the McElroy farm located on the Missouri River, a mile east of the eastern city limits of Kansas City. The land adjoining on the west belonged to the Missouri Pacific Railroad Company, and on the east to the Standard Oil Company. The town of Sugar Creek was located about a quarter of a mile
or less east of the south part of the farm and the Standard Oil Company's plant, with its Sugar Creek refinery and numerous tanks and buildings, was located about the same distance east of the north part of said farm. The intervening land belonged to the Standard Oil Company, but was mostly vacant and unimproved. The south part of the farm, embracing about 100 acres or more, was known as the McElroy pasture.
Said farm, including said pasture, had been platted and divided into ten-acre lots, but no streets or alleys had been platted therein. But the property immediately adjoining said farm and pasture on the south, and formerly a part of said farm, had been platted by the owners and called Jackson Lithia Place. By this plat, three east-and-west streets were laid out: Pacific Street immediately south of and adjoining the pasture; parallel with it and south of it a block, was Scarritt Avenue; and parallel with Scarritt Avenue and a block south of it, was Kentucky Avenue. Kentucky Avenue was a paved street and connected with Independence Road on the west running into Kansas City, and on the east extended into the town of Sugar Creek. There were also six streets running north and south about 300 feet, or a block, apart. Home Avenue was on the west line of the sub-division; then running east in order were Cedar, Huttig, Ash, Hardy and Poplar avenues. The two north-and-south blocks were about 600 feet in length. Huttig Avenue was paved with macadam from Kentucky Avenue to Pacific Street. Pacific Street was not paved or graded, but was partly in use. The other streets had been partly graded and oiled.
The whole farm for some years had been enclosed with wire fence. There was a stile at the southwest corner of the pasture; also two gates in the south fence, one at the north end of Ash Avenue, and the other at the north end of Huttig Avenue.
The plaintiff had lived with his parents for a number of years on Poplar Avenue in said Jackson Lithia Place, about a block and a-half south of Pacific Street,
and a short block, 235 feet, west of the east line of the pasture extended. The walnut tree in which plaintiff was injured was about a quarter of a mile north of Pacific Street, a few feet west of the east line of the pasture. It was in a small grove of about fifty walnut trees. It was on high ground, but in a draw or depression. There was a pond about 100 feet in diameter, in the pasture, about 700 feet north of Pacific Street and 900 feet west of the walnut grove. Still further north of both the grove and the pond were the old McElroy home or mansion and the house of the care-taker.
At the time of the accident, and for a number of years before, the plaintiff's evidence tended to show that, within one block south of Pacific Street or the south line of the pasture and within three blocks east-and-west, there were as many as thirty or forty residences. And within the general vicinity of two blocks south there were as many as 150 to 200 residences. On the north side of Kentucky Avenue, between Home and Cedar avenues, there was a public school attended by some 300 pupils and a church at the northeast corner of Ash and Kentucky avenues. That families, including a large number of children, lived in these houses, and that they and the school children and teachers and church and lodge people and boy scouts used the pasture for the purpose of holding picnics and camping parties, gathering flowers and pawpaws and walnuts. The children also used it for playing ball and other games. The boys used the pond very frequently, as a swimming hole in the summer time, and to skate upon in the winter. The pasture was also used by some of the neighbors, including plaintiff's father, to pasture their cows. The employees of the Standard Oil Company also went through the pasture to and from their work.
Plaintiff's evidence also tended to show that neither the owner nor the care-taker ever objected to this use on the part of the public, except to the use of the swimming hole in the daytime. That there were no signs or other
warnings against the public using the property until after the accident occurred.
The defendant's electric wires extended from its pole line on Kentucky Avenue north through the pasture near its east line to and beyond the place where plaintiff was injured. It supplied the two houses on the McElroy farm with electricity, as well as some other houses between Kentucky Avenue and Pacific Street, including the plaintiff's father's house. The electric wires had been there for a number of years. About four years before the trial, the wires were insulated, but the insulated wires were taken down about that time, and bare copper wires were put up in their place and were there when the accident occurred. Defendant's employees patrolled the line from time to time prior to plaintiff's injury.
The walnut tree in which plaintiff was injured was about six inches in diameter at the bottom and twenty-five feet high. It was about three inches in diameter at eighteen or twenty feet from the ground where plaintiff was injured. The wires of the defendant passed through the tree at the place where plaintiff was when injured, about twenty-seven inches from its trunk. There were limbs above and below the wires. Also, little stubs of limbs which had been cut off about two, four and six feet from the ground. The wires were about the size of a lead pencil. There was a pole about eight feet north and another about one-hundred and fifty feet south of the tree, on which these wires were strung; they were twenty-five-foot poles, about five feet thereof being in the ground. Defendant's electric wires on Kentucky Avenue were insulated. The bare wires started from plaintiff's father's house running north. Four or five other houses were supplied from these bare wires.
The boys had gathered walnuts in this walnut grove for several years before the accident; men and boys gathered them. The limbs on the tree in which the plaintiff was injured extended out about four or five feet from the trunk, and about six feet above the wires. If the
wires had been placed six feet higher than they were, or six feet west, or ten feet east of the body of the tree, they would have cleared the tree. There was a path about twenty-five feet from the tree which had been made by the Standard Oil Company's employees going to and from their work.
Plaintiff testified: That he had lived with his parents on Poplar and Felton avenues (about a block and a-half south of the southeast corner of said McElroy's pasture) for six years before the trial. That he had gone to the pasture to take the cow and heifers there, get walnuts, flowers and pawpaws, and play various games, and to go swimming and fishing in the pond, ever since they had lived there. Sometimes he would go through the gates and sometimes through or over or under the fence.
The morning of his injury, he and his brother, Fred, and his two cousins, Richard Beddell and George Brundage, and Jimmie Wilson, took the cow over to the pasture, and then went to get walnuts. It was in August; the leaves on the trees were green. They went to this clump of walnut trees on the east side of the pasture. Plaintiff climbed up one tree and knocked a lot of walnuts down, and as he came down he touched a wire and saw a flash and received a shock and lost consciousness, which he did not regain until he woke up at home in bed. He knew nothing about electricity. Had gathered walnuts in that pasture before, but not in that particular tree. Did not see or know the wires were in the tree.
On cross-examination, he said: He would be fourteen years old his next birthday, August 5, 1921. He got up about fifteen or twenty feet in the tree and then started down. His foot did not slip until after he touched the wire. He caught it with his left hand first, and then he slipped. His face was burned when he was unconscious. Could not tell which limb he was on. He was on a limb, and in getting down, grabbed the wire with his left hand, did not know it was there, the leaves covered it over, and he didn't even see the wire nor anything else. He was
coming down taking hold of one limb and then the other and touched the wire with his left hand. The care-taker, Mr. Platt, never told him to keep out of the pasture, except to keep out of the swimming hole until after six o'clock.
Plaintiff's evidence further tended to show that the wires, although carrying 2300 volts, could have been insulated where they passed through the tree, so as to render them harmless. They could also have been isolated by carrying them over the top of the tree on 45-foot poles, instead of using 25-foot poles, as was done at that place. Or the pole-line could have been moved away from the tree. This would have been good electrical practice.
Defendant's evidence tended to prove: That the owners of the McElroy property consented to the use of the property for school, church and lodge picnics, and by people whom they thought would do no injury to the property, but not to its use by the public generally without permission. Mr. McElroy himself testified he saw children gathering walnuts at different times, but did not molest or prevent them from so doing. That he himself never ordered anybody off of the place, although he saw many children and people there. He had told his care-taker to permit certain parties to use the pasture, and had assumed they received permission from him. He supposed these were people and children of people that bought houses and lots in Jackson Lithia Place — people he knew.
Defendant's evidence further tended to show: That for many years before the accident to plaintiff, numerous signs had been posted around, especially in the part of the pasture fronting on Pacific Street, warning trespassers to keep off. But these signs were constantly being destroyed by the boys and others using the pasture. The boys had been expressly prohibited and warned against using the pond for a swimming hole, but notwithstanding they used it so much that they "whetted" the top of the dam down at one place from eight or ten
feet in width to eighteen inches. That they were in swimming every day in the summer time — they could not keep them out. That the care-taker had expressly warned the plaintiff to keep out of the pasture.
Defendant's evidence also tended to show: That wires were not customarily insulated outside of cities in such places as this pasture, nor were they ever insulated where they went through trees with a view to protecting children who might climb such trees. Furthermore, that no insulation was much protection against the high voltage, 2300 volts, carried by these wires. But defendant's evidence showed that the use of forty-five-foot poles would have completely isolated the wires by putting them over the top of this tree.
Evidence of plaintiff as to his injuries: His father was notified of his fall from the tree, and carried him home in his arms; he was unconscious, limp like a dead boy. His hands and face were all burned black, and smelled as though burned. Hands were burned through and across the palm to the bone near the base of the fingers; right ear burned. Was treated at home for about three weeks, then taken to the hospital where he remained five or six weeks. His eye was blackened and swollen shut and inflamed and remained so for some time. At the hospital, he underwent three operations, involving skin grafting, skin being removed from his shoulders and hips, and grafted upon his face and hands; he was under an anaesthetic more than an hour each time, and twenty to thirty small pieces of skin were taken from him and grafted each time. At the time of the trial, there was a heavy scar on the right cheek "quite bright red," over which the beard will never grow and which will disfigure him. This scar extends from a point below the eye over to the muscles that go into the ear, and when he opens his mouth or talks there is an involuntary twitching of the face. The "smile muscle" is so affected that, when he attempts to smile, his mouth twists instead. This condition is permanent. Before the
injury, the plaintiff was a strong, healthy and robust boy; since then, he has been very nervous, fidgety, easy to cry, does not sleep well, and apparently stunted in his growth. His left hand is some smaller than his right, the use of it is somewhat impaired. His eyes were also affected, so that he has had to take treatment from an occulist, who testified that he will always have to wear glasses, as his vision is impaired in both eyes from the inflamation that was caused by his injury. He also has a constant squinting or blinking of the eyes. His eyes still hurt him about all of the time. The circulation and strength of his left arm and hand are impaired. His parents have to cut and prepare his food for him at the table. His central nervous system was upset by the shock and injury he received.
Defendant's evidence, as to plaintiff's injury: Plaintiff on cross-examination, testified, among other things, that, since the accident, he had been over in the McElroy pasture climbing trees. He saw a play, after his injury, in which one of the characters, Tarzan, jumped from tree to tree like a monkey. The next day the boys were playing "Tarzan" in the pasture. They would jump from one tree to another, but he wouldn't jump, he would bend the tree over and hold on to one tree until he got to the other, about like Tarzan did in the play. This was two or three weeks before the trial. The Sunday before that, he was over in the pasture, where the boys were digging a cave; they did not climb trees that day, but played another game. The trees they bent over in playing "Tarzan" would be small trees five or ten feet high, not as tall as the room. He held on the best he could with his left hand as well as his right. He is not as strong in his left as he is in his right hand; could not hold his weight by his left hand.
The medical testimony of the defendant was to the effect that plaintiff's injuries were superficial, and not of a permanent character, except that two scars on the side of his face extending to under the right ear are in a
measure permanent, and the lobe of the ear has been burned so that it has been separated from the face for a distance of possibly an eighth of an inch. There is no indication of the impairment of the muscles of his face or hands. The scars on the left hand at the base of the fingers extending clear across the palm of the hand will be permanent; all these scars will improve to a certain extent, but will not be totally obliterated. The boy does not appear to be up to the standard in growth and size for his age.
At the close of the testimony the defendant offered and the court refused a peremptory instruction to find for the defendant; also gave certain instructions for the plaintiff. There were also certain objections to testimony, of which defendant complains, and which will be noticed later on in the opinion.
There was a verdict for the plaintiff for $20,000. Defendant duly brought the case here by appeal.
I. It is well settled that an electrical company, "if reasonably chargeable with knowledge, or of facts making it reasonably probable, that persons may lawfully come into close proximity to its wires for purposes of either business or pleasure, is obligated `to use every precautionUninsulated which was accessible to insulate its wires' atElectric Wires. such places and to use the utmost care to keep them so." [Williams v. Gas Elec. Co.,274 Mo. 8; Geismann v. Electric Co., 173 Mo. 674; Von Trebra v. Gas Co.,209 Mo. 659; Clark v. Railroad, 234 Mo. 419; Campbell v. United Rys. Co., 243 Mo. 152; Sudmeyer v. United Rys. Co., 228 S.W. 64.]
II. It is also well established law, that electric companies must take notice of the natural instinct of boys to climb trees — especially trees which bear nuts or fruit — and if they string wires through such trees under circumstancesBoys: Climbing which may reasonably charge them with notice ofTree: Notice. the probability of boys climbing such trees, and a boy who
has climbed a tree to get the nuts or fruit — or even to satisfy his childish instinct to climb trees — is injured by an uninsulated or dangerous wire, without contributory negligence, the company must respond in damages. [Williams v. Gas Elec. Co., 274 Mo. 1; Kribs v. Jefferson City Light Co., (injury to boy in pasture), 199 S.W. (Mo. App.) 261; Thompson v. Slater (injury to boy in tree), 197 Mo. App. 247; Temple v. Electric Co., 89 Miss. 1, and many cases from other jurisdictions cited by this court in the Williams Case, supra, at page 9.]
This is the general law. In Curtis on the Law of Electricity, section 512, it is thus stated: "An electric company, maintaining a dangerous wire through or near a tree, is bound to anticipate that persons may lawfully climb the tree, and it is required to exercise due care to prevent injury to such persons from its wire. . . . The courts recognize that children are apt to climb trees, and impose upon electric companies the burden of using due care to keep their high-tension wires insulated in places where children when climbing a tree will come in contact with them."
III. It is also the rule in this State, that the fact, if it were a fact, that the injured child was trespassing upon a third party's property at the time of the injury, is noTrespasser. defense. [Williams v. Gas Electric Co., 274 Mo. 1, supra, and cases cited p. 11.]
IV. It is true that, in this case, the place where plaintiff was injured was not within the technical corporate limits of any municipality; but it was close both to Kansas City and the town of Sugar Creek, and bordered upon Jackson Lithia Place, which was thickly settled. Said pasture, according toAnticipating plaintiff's evidence, had for a number of yearsInjury: Pasture. been a playground for children, and the walnut tree, through which defendant ran its deadly uninsulated wires, was in a little grove of walnut trees, which for a number of years before plaintiff was injured had been
climbed by children to secure the coveted walnuts — with none to molest or make them afraid. Under the law in this State requiring the utmost care of electrical companies to make and keep their wires safe so as not to unnecessarily destroy human life or limb in the operation of their exceedingly dangerous but necessary business, it was the duty of defendant, under plaintiff's evidence, to reasonably have anticipated the presence of the plaintiff in the tree in which he was injured, and to protect him by properly insulated or isolated wires, and failing to do so was liable for his injury, unless absolved therefrom by plaintiff's contributory negligence. [Authorities, supra.] But we hold that plaintiff was not guilty of such contributory negligence, as a matter of law. Defendant's demurrer to the evidence was therefore properly overruled.
V. Nor are defendant's objections to instruction numbered (one) given for plaintiff tenable. There was evidence (contrary to defendant's contention) that, for a number of years before the accident, children had climbed and gathered walnuts from these walnut trees, which would include the tree inInstruction: question, and that it was reasonably probable thatAbsolute they would come in contact with said wire, located,Duty. as it was, in said tree. Nor did said instruction (as contended by defendant) make it the absolute duty of defendant to insulate its wire and make it harmless, but only to do so if said wire "by the use of ordinary care could have been insulated and made harmless . . . and to use the utmost care to keep it insulated."
Nor was said instruction erroneous, because it permitted a finding for plaintiff, ignoring the issue of contributory negligence. Said instruction expressly required the jury to find that plaintiff "while in said tree, and at all times mentioned in the evidence, was not guilty of any contributory negligence." Nor did said instruction enlarge the issues, because the petition alleged the plaintiff "did not know of the danger created by said wire."
His knowledge in that regard was an element of contributory negligence which the jury was required to pass upon.
VI. Plaintiff's instruction numbered 2 was not erroneous. This instruction defined ordinary care in the usual way. It defined the term "utmost care" as "such care as would usually be exercised by ordinarily careful and prudent persons engaged in the same or similar business under the same orUtmost Care: similar circumstances to those shown in evidence,Definition. and any failure, if any, to exercise such care is negligence." We see no objection to this instruction of which defendant could complain. If objectionable at all, it is because it is too favorable to the defendant.
VII. Plaintiff's instruction numbered 3 was an instruction on contributory negligence. Defendant's objection thereto is, that it had no place in the controversy, because the plaintiff was either guilty of contributory negligence as a matter of law, or not at all. We see no substance to this objection.Contributory Defendant expressly pleaded contributory negligenceNegligence. and although there may have been no evidence at all to sustain this plea, it cannot complain of said instruction for that reason.
VIII. Defendant's objections to evidence are untenable. It objected to a great many questions concerning the strength and health and disposition of the plaintiff before and after the accident, such as, that he was perfectly well andShort-hand healthy, playful and cheerful before, and afterwards,Statement he was not very active, nor very playful, and wouldof Facts. cry easily, and the like. We see no objection to such testimony. It was admissible as a short-hand statement of facts. [Parker v. Ins. Co., 289 Mo. 42; Rearden v. Railroad, 215 Mo. 137]
Nor was it error to permit the plaintiff to stand near the jury, while plaintiff's physician was testifying to and describing plaintiff's injury. That was a matter within the discretion of the lower court. Nor can defendantStanding charge the court with error in permitting certainNear Jury. leading questions. Leading questions are also largely within the discretion of the trial court, and we cannot find the court abused its discretion.
IX. As to the amount of the verdict: The verdict was for $20,000. We are satisfied that the plaintiff was seriously injured, but we deem the amount more than the general precedents in such cases in this court will allow to stand. Our conclusion in that regard is, that if the plaintiff will remit $5,000 from the judgment within ten days after our opinion in thisExcessive cause is filed with the clerk of this court, theVerdict. judgment below will be affirmed for the sum of $15,000, with interest at the rate of six per cent per annum from the date it was originally entered in the circuit court; otherwise, the judgment will be reversed and the cause remanded for another trial. Lindsay, C., concurs; Brown, C., not sitting.