Hart v. Union Mfg. & Power Co.

154 S.E. 118, 157 S.C. 174, 1930 S.C. LEXIS 151

• Court: Supreme Court of South Carolina
• Decided: July 9, 1930
• Docket: 12945
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice BeEase.

This action for tort, tried in the Court of Common Pleas of Union County, with Honorable Harry Hines presiding as special Judge, resulted in a verdict of the jury in favor of the plaintiff for both actual and punitive damages; and from the judgment entered thereon, the defendant has appealed to this Court.

By several of its fifteen exceptions, the appellant imputes error to the trial Judge in refusing to grant its motion for a nonsuit, the motion for a directed verdict in its favor, the giving of certain requests to charge on the part of the respondent, the refusal to instruct the jury in some instances, as requested by the appellant, and the failure to grant the motion for a new trial.

A proper disposition of the exceptions relating to the refusal of the trial Judge to grant a nonsuit, to direct a verdict in the appellant’s favor, and the failure to give a new trial, will practically dispose of the entire appeal. So we turn first to the questions raised by these exceptions. To consider them, it becomes necessary to review the evidence in the cause. Our statement of it may appear to some to be “one-sided.” This is necessary because we are required here, just as it was incumbent upon the trial Judge in the lower Court, under the law, to give the respondent the benefit of any and all evidence in his favor. Since, in our opinion, the evidence set forth in the transcript of record seems to bear it out, we have borrowed freely, from the argument of the respondent’s counsel, their summary of the facts disclosed, favorable to the respondent’s case.

Claud Plart, the respondent, and his wife, Tula, the parents of Woodrow Hart, a minor of nearly nine years of age at the time of his death, lived with their five children, varying in age from five to fifteen years, in the industrial village of the Monarch Mill in the City of Union. In order to support the family, it was necessary for both to labor in the mill, the father working in the daytime and the mother at night so that one could be constantly with the children. Woodrow attended school during the day and was regarded as an average, normal child of his age.

About 5 o’clock in the afternoon of March 15, 1928, this child was found hanging on one of the appellant’s high-voltage electric power wires supported by a metal tower at a place and of- the description hereinafter stated. His head was against one of the posts with a little “ball of fire” about his head and foot and in contact with a live wire strung on the first cross-arm of the tower, about twelve inches from the body of. the tower. In a few moments after this discovery, one of his legs was burnt off and fell to the ground, quickly followed by the fall of the remaining part of the lifeless body. His hands, arms, and face were badly burned.

At the time of the death of the intestate, and for some years prior thereto, the appellant generated and transmitted electricity for industrial and lighting purposes from an electric power house located on the Broad River, in Union County, by means of wires placed on poles and metal towers and owned and maintained the tower and transmission wires on which the child was killed.

This type and construction of metal tower, photographic cuts of which are set out in the record, was designated as a “ladder tower.” It consists of three metal supports or legs embedded in a cement foundation even with the surface of the ground, in such a relative position that lines drawn through and connecting these points would form an equilateral triangle with the dimension of the sides about twenty-five inches at surface, from which they were so inclined as to approach each other as they were extended upwards and substantially came in contact at a height estimated from twenty to forty feet. These legs in this upright position are supported and held together by metal lacings or bracings about three-sixteenths of an inch thick and bolted symmetrically through the three legs of the tower from the bottom to the top. These lacings are so adjusted and bolted on the three sides of the tower as to make an angle of about sixty degrees with the legs, thereby creating a construction of three ladders, so combined as to form the triangular metal tower with the latticed or criss-crossing lacings as the rungs. The distance between the lacings at the ground was estimated at about twenty inches, gradually decreasing as the top of the tower was approached. At or near the top, within three or four feet, was the first cross-arm, supporting four wires, one of which conveyed the fatal current and with which the child came in contact.

This ladder construction was not alone of engineering significance, but was intended to be used, and was so used, by the employees of the company as a ladder to reach any part of the tower for inspection and needful repair work on the tower or the correction of line or other troubles.

The testimony of numerous witnesses discloses not less than twenty-two statements that such ladders were not only easily ascended their entire distance, but were more easily climbed by a child than an adult person or an employee.

The tower was located just outside, about two hundred yards from the nearest houses in a populous mill village. One estimate was one hundred yards. The spot was approached by two streets from the village. It was estimated that probably one hundred children lived within two hundred yards or a quarter of a mile from this tower and had no playground save restricted yards and the roads and streets of the village. The children did “not congregate elsewhere.”

There were some gullies near the location of the tower, one being only a few feet therefrom, also some pine sapplings, broom-sedge, trees, bushes, and undergrowth. An old pathway, which was used by the “folks,” led from a house above within two or three feet of the base of this tower to a branch below used by the children to “wade” in.

Several witnesses, thoroughly familiar with the physical conditions surrounding this spot, based upon observations extending over years, and conditions generally in the mill village, and certainly familiar by experience and observation with the impulses and promptings of youthful childhood, regarder the place, by reason 'of its physical characteristics, its close proximity tó the mill village, the absence of playgrounds therein, peculiarly attractive to children. It seemed to be a favorite place for the congregation and play of children ranging from the age of four to fifteen years. Indeed, it was regarded as the “regular place in the summertime” and “many children played there.”

A familiar and impressive picture is presented by the witnesses of the child life that centered about this tower, an agency of death, manifested in a varied form of frolic and play that have been naturally prompted throughout the history of the human race by the sportive, venturesome, and curious nature of the normal child.

Their plays around this spot for at least five or six years consisted of making playhouses in the gullies, dollhouses about the base of the tower, even on its cement base; they played “hide and seek” and “spy,” and other games.

One of the witnesses declared: “I liked (as a child) to play in the bushes; we would bend down the trees and ride them and ride them and we would play in the gullies and climb the tower.” She went half way up and none of them had any knowledge of the danger. Others climbed until they took “swimming head” and in one instance until the nose bled. They played what they termed “back out” which was only a banter from one to another for a contest of childish daring and adventure in seeing who could climb the ladders the highest, and this was going on for years.

Though this metal tower had been maintained for many years there was no effort made to protect or guard the children who congregated about it for play, as testified to by numerous witnesses. In fact, its unguarded condition was conceded by the appellant, its employees not thinking it necessary to guard it.

There was substantial testimony, and reasonable inferences therefrom, to the effect that the company used the single woode^i pole as well as the metal tower for the support of its wires; that the metal tower in question was the first used beyond the mill village, and at this point the pole could have been used without the slightest impairment of the efficiency of appellant’s line as it was there constructed.

There was testimony offered tending to show that this tower could easily have been protected against climbing by small children by putting a substantial wire' enclosure about its base, and such was the statement of one of appellant’s witnesses, or that the cement base could have been extended a few feet above the surface and the superstructure embedded therein just as safely as when constructed on one even surface, or the lattice lacings could have started a safe distance upwards-at the trifling cost of five or six dollars. These precautions could have been installed with insignificant expense and trouble, did not materially impair or weaken the strength of appellant’s line or its service, and would have made the tower safer against climbing by children.

It is true we have failed to find any positive evidence, affirmatively showing that any agent, servant, or employee of the appellant had direct notice that children were accustomed to congregate and play about and around the tower and to climb thereon. The evidence, however, in our opinion, was entirely sufficient to justify the inference of the jury that the appellant was properly advised of the conditions and circumstances. The employees of the appellant were frequently inspecting its line, and, in the performance of their duties, climbing the tower. All about the tower were indications that the grounds were used constantly by children at play. The paths made by their little feet, and other evidences, were there for the employees to see what had been and was going on. The appellant must have known, and surely its agents must have seen many times, children about the tower. If absolute notice of the conditions was necessary in order to make the appellant liable, the jury had, in our opinion, before it sufficient evidence to warrant it in coming to the conclusion that the appellant for some time had been advised that many children used this place as a playground. In this connection, it may be well to mention that, by the consent of the parties, the jury made an inspection of the tower, where the little boy received his fatal injuries, and the ground surrounding it.

The grounds upon which the appellant urged its motion for nonsuit, those on which it based its- motion for a directed verdict, and those upon which the motion for a new trial rested, were really the same. One statement of these, and the sixth, seventh, eighth, ninth, tenth, and eleventh exceptions of the appellant, complaining of certain instructions of the trial Judge, will be reported.

In disposing of the exceptions as to the failure of the presiding Judge to order a nonsuit or to grant appellant’s motion for a directed verdict, we must be guided by the rule, repeatedly announced by this Court, and stated lately in the following language:

“On motions for a nonsuit and directed verdict, all the testimony and the reasonable inferences deducible therefrom are to be taken most favorably to plaintiff.” (Syllabus) McCutchen v. Pacific Mutual Life Insurance Co., 153 S. C., 401, 151 S. E., 67, 68.

The case of the respondent is predicated upon what is generally designated as the “turntable or “attractive nuisance” doctrine, recognized for many years by this Court, and being first particularly passed upon in the case of Bridger v. Railroad Co. 25 S. C., 24. The honor of helping to establish in our state this humanitarian doctrine belongs very much to Honorable James S. Cothran, for some time one of our distinguished Circuit Judges, who presided at the trial of the Bridger case.

In the Bridger case, a boy under twelve years of age, while playing with other boys on the turntable of the railroad company, was badly injured. A verdict of $5,000.00, in favor of the little boy, was approved by the trial Judge and upheld by this Court. In approving several instructions given by the Circuit Judge to the jury, the Supreme Court took occasion to say this:

“The plaintiff may have been told, and he may have had sufficient capacity to take in the idea, in a general way, that it was wrong and improper for him to be at the turn ing-table, and yet not of sufficient capacity to know that he might get hurt by attempting to ride upon it, and consequently not of sufficient capacity to exercise, or be required to exercise, ordinary care, so as to prevent injury. This was one of the points involved in the request, and the Judge very properly brought it out, by inserting the words of modification referred to.

“The appellant’s counsel have earnestly pressed upon us the position, that it was the duty of the Circuit Judge to charge as matter of law' under the evidence, that the plaintiff from his age and sprightly character was sui juris, and therefore subject to the general law, applicable to those of acknowledged capacity. Where it is admitted that the party injured was of sufficient age, or had sufficient intelligence to be responsible for his acts, we do not say but that the Judge might properly charge in such case, that he could contribute to his injury in such way as to exempt the defendant. So, too, where it is admitted that from his tender years or other infirmities he has not sufficient capacity, the Judge might charge, that he could not contribute. But where these matters are matters of doubt, and are points in the issue, depending upon facts to be proved, then they become questions for the jury.”

We do not .deem it necessary to refer to all of our cases since the Bridger case, which have involved the “attractive nuisance” doctrine. In order to show that the Circuit Judge was correct in giving the instructions complained of in this, case, when the instructions are considered with the whole charge, we do mention some of our former cases. In this opinion, we take the liberty to make good use of the splendid argument of the respondent which has been of great assistance to the Court.

The sixth, seventh, eighth, ninth,- tenth, and eleventh exceptions impute error to the presiding Judge in an alleged failure to embody in his statement of the essential requirements of the doctrine of the “attractive nuisance,” as recog nized in this state, the qualification that the principle is only applicable when the dangerous instrumentality is placed within the reach of the injured child, and the fact that the same “did attract children,” and the fact that it was within reach of them and they played with it, 'it must be brought home to the owner of the premises.

These exceptions, it may be observed at the outset, are evidently based upon a misconception of the nature and scope of a very exhaustive charge on the subject, in the-beginning of which, after an impressive statement of the issues, the Court instructed the jury, in part, as follows:

“Now, I charge you, as a matter of law, gentlemen of the jury, that if a man erects and maintains on his premises a dangerous and destructive instrumentality, and so erects it in such form as it appeals to a child, that is, the average normal everyday child, to come in contact with it, or touch it, or project with it, or play with it, and a child doing those things which a child would ordinarily do, does come in contact with it and is injured because of the temptation, and because of that faculty of childhood to be tempted by that kind of thing; and a normal everyday child is injured under those circumstances, and the jury reached the conclusion that the plaintiff has shown by the greater weight of the evidence of the danger under, those circumstances, the plaintiff would be entitled to recover.”

Throughout the charge the idea is continually presented that the liability of the defendant would only be predicated upon such a dangerous instrumentality that “they were at liberty to handle or play with,” and the injury to be reasonably guarded against was that likely to result from “coming in contact with it,” or “while so playing with it,” or “coming in its vicinity.”

With regard to the other criticism of the charge, it will be observed that in response to the appellant’s first request to charge, the jury were plainly instructed that “knowledge of the climbing of the tower or using a dangerous instrumen tality of the defendant by children in the neighborhood in play must be brought home to the defendant before it can be made liable,” to which the presiding Judge properly added the universally recognized principle applied in cases of civil liability that “where knowledge is essential, if the facts and circumstances of the case were such as to put the man of prudence and ordinary foresight upon notice of the condition, then the law says he ought to have known it.”

It is also plain that the determining factor in an alleged attractive nuisance is not that it be located so that it may be easily reached or within reach by the mere outstretching of the hand, but it is equally so if the agency be of such nature that it tempt or appeal to the venturesome or curious impulse of a normal child, so that it may be easily put in reach.

Besides the complaint alleged that this tower was so constructed “as to make said tower of easy ascent and easily climbed by small children and plaintiff’s intestate.”

This allegation was read as a material one, and the jury instructed that it was the duty of the plaintiff to establish it by the greater weight of the evidence.

From the full and elaborate charge of the presiding Judge on the subject of the “attractive nuisance,” portions of which are made the basis of the criticism embodied in these exceptions, the following composite instructions, comprehensive in nature and in full accord with the decisions in this state, may be stated:

I. That children, wherever they go, must be expected to act upon childish instincts and impulses, and if any dangerous thing or instrumentality is maintained and exposed to the observation of children by the owner of premises, of such character and in such form as to tempt, appeal to, and attract the normal child in play and amusement, and which they, in their immature judgment, might naturally suppose they were at liberty to handle or play with, such owner should expect such liberty to be taken. In other words, the normal child will do what the normal child is expected to do, and such owner must act accordingly in his effort to adopt reasonable precautions to prevent injury.

II. That the creation and maintenance upon one’s property of such an instrumentality or enticement to the “ignorant and unwary” is tantamount to an invitation to visit, inspect, and enjoy, and under such circumstances the duty to “endeavor to protect from the dangers of the seductive instrument or place follows as justly as though the invitation to the ignorant and unwary had been expressed.”

III. That if one artificially brings or creates upon his premises a dangerous place or instrumentality which, from its nature, has a tendency to attract the childish instincts and impulses of normal children for play or amusement, and at the same time is dangerous to them, a• new duty is imposed upon one maintaining such place or agency, namely, in the exercise of an obvious social duty and the ordinary offices of humanity, to take such reasonable pains, precautions, and ordinary care, without becoming the insurer or guarantor of the safety thereof, as the circumstances reasonably permit, to see that such places or instrumentalities are so safeguarded that children be reasonably protected and not be injured in coming in contact therewith while playing with it or coming in its vincinity.

IV. That although a dangerous place or thing “may not have especial attraction for children by reason of their childish instincts — yet where it is so left exposed that they are likely to come in contact with it, and where their coming in contact with it is obviously dangerous to them, the person so exposing the dangerous thing should reasonably anticipate the injuries that are likely to happen to them, from its being so exposed and is bound to take reasonable pains to guard it, so as to prevent injury to them.”

V. That a child under the age of seven years was conclusively presumed to be incapable of committing contribu tory negligence, and that there was a prima facie presumption that a child between the ages of seven and fourteen was incapable of committing contributory negligence, but this presumption was rebuttable and might be overcome by the testimony in the case, and whether it was rebutted or not was a question for the jury to determine from the evidence submitted.

VI. That if the death of the child in this case was due to the contributory negligence of the parents in allowing him to go about without proper control and supervision, and such parents are the beneficiaries, their contributory negligence would bar recovery in this action.

The instructions of the Court dealing with the pertinent phases of this subject not only clearly recognized the sanctioned doctrine in this state, but in presenting it to the jury for their guidance, substantially adopted the language of this Court in the cases of Hayes v. Power Co., 95 S. C., 230, 78 S. E., 956; Franks v. Oil Co., 78 S. C., 10, 58 S. E., 960, 962, 12 L. R. A. (N. S.), 468; and Renno v. Seaboard Air Line Railway, 120 S. C., 7, 112 S. E., 439, the facts in which cases were not stronger than in the present case.

In the case of Franks v. Oil Co. the Court sustained the liability of the defendant for the death of an. infant by drowning in an unguarded reservoir maintained by it in its business in an open field near a public highway, streets, and many residences of a city, where children of tender years, with knowledge of the corporation, were accustomed to resort to play.

The appeal in that case involved the .correctness of the ruling of the presiding Judge in overruling a demurrer to complaint, upon the ground that it did not show the violation of any legal duty owing to the deceased in regard to the unprotected condition of the reservoir.

In disposing of the exception presenting the single question, the Court quoted with its unqualified approval numerous extracts from recognized authority throughout the country, embracing the decisions of Courts of high standing as well as text writers of universal recognition, setting forth what it widely sanctioned as the correct doctrine in such cases, among which may be mentioned, in support of the views and instruction'of the presiding Judge, the following:

“ ‘Children, wherever they go, must be expected to act upon childish instincts and impulses; and others, who are chargeable with a duty of care and caution towards them must calculate upon this and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they, in their immature judgment, might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken.’ * * *

“Under the caption of ‘Liability for Injuries to Children,’ the author in 1 Thompson on Neg., § 1026, thus speaks in strenuous language of the doctrine that liability extends only to wanton injuries: ‘One doctrine # under this head is that if a child trespass upon the premises of the defendant, and is injured in consequence of something that befalls him while so trespassing, he cannot recover damages unless the injury was wantonly inflicted, or was due to the recklessly careless conduct of the defendant. This cruel and wicked doctrine, unworthy of a civilized jurisprudence, puts property above humanityJ leaves entirely out 'of view the tender years and infirmity of understanding of the child, indeed his inability to be a trespasser, in sound legal theory, and visits upon him the consequences of his trespass, just as though he were an adult, and exonerates the person or corporation upon whose property he is a trespasser from any duty towards him which they would not owe under the same circumstances towards an adult.’ ”

In the case of Hayes v. Power Co. the plaintiff was a boy nine years of age living on the property of the defendant, Manchester Mills. He was seriously burned and injured by coming in contact with an electric wire in the transformer house located on the property of the defendant. The boy for several months previous to the time of the injury had been attending school in a building near the transformer house. During the recess hours the children were accustomed to play in the neighborhood of the transformer house, sometimes at one place and again at another. The Manchester Mills were principally in control of the transformer house, although agents of its codefendant, Southern Power Company, occasionally visited it for the purpose ’of making needful repairs in the electrical apparatus. The electric power wires were located in this house, near one of the windows five or six feet from the ground, too high for the plaintiff to come in contact with the same when standing on the ground. On the day plaintiff received his injuries, he with two or three small boys went to the transformer house at the noon recess, and when first seen after his injury had his knee in the window and was hanging out by his hand. His hand was through the window touching the wires. In his account of how he received the injury, the plaintiff stated that the other boys had told him that if he touched the wires it would make him jump up and dance. Before plaintiff could touch the wires, or in any way come in contact with them, he had to climb up in the window, place his hands between the slats and under the windavy, and this seemed to be the only manner in which his injury could be received. The neglignce alleged was keeping the windows “open and unprotected” with wires charged with electricity within close proximity thereof. All of the buildings were located on the property of the Manchester Cotton Mills.

The trial Judge in that case instructed the jury, in substance, that to maintain upon one’s property enticements to the ignorant and unwary amounts to an invitation to visit, inspect, and enjoy, and in such cases the owner is under legal obligation to make a reasonable effort to protect from the dangers of such seductive instrument or place and the invitation is just the same as though it had been expressed; that while an infant might be a trespasser, that is, an infant of tender years, in a technical sense, when it goes where it has no rightful permission or authority to be, but the same rule would not apply to infant as to adult trespassers, and in connection with this instruction he read at some length an extract from the Pranks case in reference to the contention that liability in such cases only extend to cases of injuries arising from a wanton act. ■

All exceptions to these instructions were overruled, the Court declaring with its approval that they were taken from the Pranks case.

In the case of Renno v. Railway Co., a boy about nine years old was drowned while swimming in an undrained and unguarded pool of water formed on the defendant’s premises by the violent rush of water through a culvert too small for the purpose of drainage, after knowledge that boys resorted to this place for the purpose of swimming, and that by reason of its depth it was dangerous for this purpose.

The Court en banc held that the case fell within the “attractive nuisance” doctrine. In denying the contention of the defendant to the contrary, the Court again invoked, with an unqualified approval, the principles so clearly and elaborately stated in the Pranks and Hayes cases.

And this Court in the subsequent cases has adhered so constantly to the doctrine thus repeatedly announced that the legal principles controlling in such cases are perfectly plain, and the practice of adopting the language of this Court in presenting them for the guidance of the jury by the trial Judge is to be highly commended.

In addition to the cases to which we have referred, we call attention to other cases, which confirm generally the views herein expressed, as follows: Tucker v. Cotton Mills, 95 S. C., 302, 78 S. E., 890; Tucker v. Cotton Mills, 96 S. C., 466, 81 S. E., 182; Sexton v. Construction Co., 108 S. C., 516, 95 S. E., 129; McLendon v. Hampton Mills, 109 S. C., 238, 95 S. E., 781; Haithcock v. City of Columbia, 115 S. C., 35, 104 S. E., 335; Morris v. Langley Mills, 121 S. C., 200, 113 S. E., 632, 36 A. L. R. 302; Pigford v. Cherokee Falls Manufacturing Co., 124 S. C., 389, 117 S. E., 419.

The appellant urges that the recent case of Williams v. City of Sumter, 149 S. C., 375, 147 S. E., 321, sustains thoroughly its position and is conclusive of the case at bar. We are unable to agree with that view. That case is easily distinguished from this case. In the former, the City of Sumter was the owner of its electric light and ice plants, erected poles and extended its electric lines beyond the city limits along a certain roadway or street for the purpose of supplying electricity to the people residing thereon, among whom was the plaintiff, a boy between nine and ten years of age.

The last pole erected on this roadway was supported by a guy wire extending from the top of the pole to the ground, a ligitimate purpose, and was insulated nine feet and four inches above the ground. Owing to the placing of a feed wire leading to one of the houses west of the Williams’ home on this guy wire, the latter became charged with electricity down to the insulator. The plaintiff climbed this wire beyond the insulated part and was severely shocked and injured in an effort to extricate him from his perilous position.

The opinion in this case does not in terms declare the nature and form of the action. The only act of negligence referred to “is that the defendant permitted the portion of the guy wire above the insulator to become a conductor of the electric current, so that, when the plaintiff climbed up and caught the wire above the insulator, he received an electric shock,” etc.

If the action be viewed as one involving the statutory liability of the city for bodily injury or damage to the person through a defect in a street by reason of neglect or mismanagement, then liability could only be predicated on some act of nonfeasance or misfeasance connected with a failure to keep the street in proper and safe repair, or some act of omission of commission which rendered the street not reasonably safe for “prime street purposes.” Dunn v. Barnwell, 43 S. C., 398, 21 S. E., 315, 49 Am. St. Rep., 843; Irvine v. Greenwood, 89 S. C., 511, 72 S. E., 228, 36 L. R. A. (N. S.) 363; Burnett v. City of Greenville, 106 S. C., 255, 91 S. E., 203, Ann. Cas., 1918-C, 363; Triplett v. City of Columbia, 111 S. C., 7, 96 S. E., 675, 1 A. L. R. 349; Foster v. City of Union, 129 S. C., 257, 123 S. E., 839.

In the Williams case, the Court held that it was not contended that the indicated use of the guy wire “was not a perfectly legitimate use,” and that it was “clear from an examination of the testimony that Hampton Avenue at the point and time of the accident, so far as danger from electric wires was concerned, could have been used by the public for all legitimate purposes with absolute safety.”

The facts of the case were held to meet requirements of the statute and interpretative decisions of the Court as to the basis of municipal liability in such cases. The doctrine of the attractive nuisance was not invoked in this case, for although the dangerous agency or instrumentality created or maintained on one’s premises may be essential to his business or enterprise and even free, for this purpose, from objectionable construction and characteristic, yet, if it is reasonably calculated to tempt, invite, or attract childish instincts and impulses to dangerous play or adventure, the law imposes an additional duty demanded by strong social consideration and the offices of humanity, to take such reasonable precautions as will prevent injury. There is an essential difference between an allegation of negligence in allowing the wire to be charged with a deadly current of electricity “above the insulator,” a negligent creation of a dangerous condition, and, in assuming that such condition exists, a negligent failure to so reasonably guard it as to prevent injury to a child where the defendant knows, or should know, that children congregate, by reason of the appeal that it naturally makes to the venturesome and sportive impulses for play and amusement possessed by the average child.

If the plaintiff in the Williams case relied on the principle announced in the case of Irvine v. Greenwood, supra, it is clear that case does not change or modify in the least the ground of municipal liability, but only holds “that playing by boys and girls while they are still of the age of youthful sportiveness is” not “an illegitimate use of the street, not to be anticipated by authorities whose duty it is to keep highways in a reasonably safe condition.”

In this case, the Court further held, under the testimony, “that children could have played there without the least danger of being injured.” Suppose that instead of a guy wire a ladder-like device had been substituted, easy for children to climb and actually used in this way by the employees of the city, and the doctrine of the “attractive nuisance” had been invoked as the basis of liability with the new legal duty it imposes, there is not a word in the Williams case warranting the view that the Court would, or could, have reached a similar conclusion upon this state of facts in conformity with the decisions in this state.

From the standpoint of an “attractive nuisance,” it was for the jury to say whether an agency suitable for climbing, actually used for the purpose by the employees of the company, left in an open and unguarded condition and located in the playground of children, was a standing invitation to the child to venture thereon, and whether it should have been protected.

The words “ladder” and “climb” are so intimately associated that even to think of one suggests the other, and the observation of a. “ladder” by the average child naturally invites and suggests the act of climbing, just as a pool the act of swimming.

If the Williams action be reviewed as one in which it was sought to hold the city liable at common law for a tort in the operation of its electric plant beyond the city limits, upon a public street or highway, it is obvious that the vitality and force of the act of negligence charged depended upon the fact that the street or highway was thereby rendered unsafe for legitimate street purposes. For these reasons, the cases are easily distinguished.

A still more recent case of our Court is that of Weeks v. Carolina Power & Light Co. et al., 155 S. C., — , 153 S. E., 119, 122. On the authority of Hayes v. Southern Power Co., supra, and other cases, we made this declaration: “Power companies and their employees, even more than other people, ought to know the great danger of electricity. They ought to take care to see that their wires, which convey electric current, are properly guarded, so as to prevent injuries to persons and property. This duty it incumbent upon them under the law of this state.”

Companies engaged in the manufacture, distribution, and sale of electricity have a great place in the modern development of our state. Because of this, they are given many great privileges, including the right to take, under condemnation proceedings, the home of a citizen. Along with these great privileges, there rests upon them high duties and responsibilities. We are much impressed by the language of Honorable Heriot Clarkson, a native South Carolinian, of whom we are proud, for some time past an Associate Justice of the Supreme Court of North Carolina. Speaking of electricity and the duty of those engaged in the business of producing and selling it, he said this:

“The rattlesnake warns its victim, but not so with this subtle, invisible, and death-producing power. It is a matter of common knowledge that this wonderful force is of un told benefit to our industrial life. Electric power is an industry-producing agency and the hydro-electric development has been one of the greatest factors in the state’s progress and especially its industrial expansion. Every legitimate encouragement should be given to its manufacture a.nd distribution for use by public utility corporations, manufacturing plants, homes, and elsewhere. On the other hand, the highest degree of care should be required in the manufacturing and distribution of this deadly energy and in the maintenance and inspection of the instrumentalities and appliances used in transmitting this invisible and subtle power.” Ellis v. Carolina Power & Light Co., 193 N. C., 357, 137 S. E., 163, 166.

We cannot close this part of our opinion in a better way-•than by indorsing one sentence contained in the opinion of Honorable Frank B. Gary, Circuit Judge, in the case of Renno v. Seaboard Air Line Railway Co., supra, used by him in speaking of the doctrine of “attractive nuisance,” namely, “This rule emanates from an enlightened humanity that places human life above the dollar.”

The twelfth exception charges error on the part of the presiding Judge in refusing to instruct the jury that there was no evidence in the case to support a verdict for punitive damages. .A conscious failure to observe due care, under the circumstances, is enough, under the law of this state, to warrant an assessment of exemplary damages. It is unecessary to cite any of the numerous authorities going to sustain this holding. A review of the evidence, already given, disposes of this exception.

The fourteenth and fifteenth exceptions are too general for our consideration. In brief, they charge that the verdict was contrary to the law and evidence of the case, since there was no proof of negligence on the part of the appellant, and no proof whatever of willfulness. If we could consider these exceptions, what we have already said would show that they are without ■merit.

By its second and third exceptions, the appellant complains that the. presiding Judge, in refusing the motion for a non-suit, made use of certain language in the presence of the jury, which was an expression of opinion by the Court on the evidence in the case, and was, in effect, a charge upon the facts. The language complained of is as follows: “There was testimony this did constitute an attractive place for children to climb, to play about,” and “it seems to have been notoriously known they congregated there for the purpose of playing.” The appellant has not given due regard to all the presiding Judge said. Right at the beginning of the announcement of his reasons for refusing the motion, he said this: “Now, gentlemen, I can’t pass upon the testimony except as it relates to the motion for non-suit. The plaintiff is entitled to the most favorable construction of that testimony on that motion.” He then proceeded to refer to the allegations of the complaint and to certain matters set up by the defendant. Just before using the language, which the appellant objects to, the Judge said, “without passing upon the strength of the testimony,” and then, in referring to the testimony, he used the language complained of by the appellant. Right after using his last expression, which is challenged, he said, “Now, as I ruled this morning as to what constitutes an attractive nuisance is for the jury.”

In passing upon the language of the trial Judge, it is our duty to consider all that he said. It would be entirely unfair to him, and to the parties to the cause, to select here and there an expression and come immediately to the conclusion thát the Judge had given to the jury his impression of the facts of the case. The whole statement, which we have read carefully, convinces us that Judge Hines did not say anything which improperly impressed the jury with his view of the evidence.

In charging the jury, the trial Judge said:

“Now, gentlemen of the jury, the plaintiff in this case, before he can ask a verdict at- your, hands must make out his case, the material allegations of this complaint, or some of the material allegations of his- complaint by the greater weight of the evidence. That is, it is' incumbent upon the plaintiff to prove by the greater weight of the evidence, to the satisfaction of the jury the material allegations of his complaint, or some of the allegations before he can ask a verdict at your hands.”

By the fifth exception, the appellant contends that the last sentence of the quoted charge was erroneous, for the reason that thereby the jury was permitted to find a verdict on allegations in the complaint that were not material. The gist of the complaint is the failure of the Judge to use the word “material” before the word “allegations” in the second sentence. It will be seen that he did use it in the first sentence. We are quite sure this inadvertence of the Judge was discovered some time after the trial by a very close examination of his charge. We are confident that if it had been noticed when the charge was being given some attorney in the case would have called the attention of the Judge to his slight error. If it was noticed, it was the duty of the attorney to call attention to it. Since the attorneys, evidently, did not catch this insignificant error on the part of the Judge at the time he was speaking, we are justified in assuming that the jurors, not trained to observe technical matters as closely as lawyers, also failed to note the fine distinction which is now made. We cannot believe the appellant suffered any prejudice because the Judge failed to repeat the word “material.”

The judgment of this Court is that all the exceptions be overruled, and the judgment of the lower Court be, and the same is hereby, affirmed.

Mr. Citiee Justice Watts and Messrs. Justices Stab-EER and Carter concur.