Stark v. Holtzclaw

105 So. 330, 90 Fla. 207

• Court: Supreme Court of Florida
• Decided: July 25, 1925
• Status: Published

Opinions

Whitfield, J.

In an amended declaration filed by the plaintiff in error it is alleged that electric companies operated lines of electric railway, and that the “defendants in the operation of its said property suffered and permitted to remain upon its said right of way, directly at and near a station on said Bay Shore Line, known as Patterson Station, a Magnolia Tree, of great height and numerous limbs and low-hanging branches; which said tree was on the right of way of said defendants, directly across the track from said depot or station, and unfenced, and the said defendants in the maintenance and operation of its said electric line, and in the maintenance and operation of its said system of poles and electric wires, carelessly and negligently did string from one pole to another at said point and place electric wires of high and dangerous voltage and defective and worn insulation between the limbs and through the branches and foliage of said Magnolia Tree, so situated on the right of way of said electrified railway of defendants; that at the times aforesaid, and for many years, there has been and was, located a public primary school of the County of Escambia, Florida, adjacent to said depot or station house known as Patterson Station and abutting the right of way boundary of defendants, said electric railway, which said public school house was in close proximity to the said Magnolia Tree on the right of way of defendants’ said electric railway and in plain view of the children at all times in attendance at said public school; that at said time the said .public school was in daily session and then and there was a place frequented by school and other children of immature age and discretion; that the. defendants knew, or by the exercise of due care and caution should have known, that, the said Magnolia Tree in the Spring of the year and at the time hereinbefore alleged would and did bear blossoms and flowers, and would be attractive to children, and that children of immature age, discretion and experience such as were in attendance upon said public school, would, in following childish instincts, be lured and tempted to climb said Magnolia Tree when bearing blossoms and flowers, as was said tree at the said time. Yet, the defendants well knowing that the said Magnolia Tree as so situated and growing as to be attractive to children, luring and tempting them to climb, carelessly and negligently strung, and suffered and permitted to be strung and pass through and near the limbs, branches and foliage of said Magnolia Tree, uninsulated and defectively insulated wires carrying high and dangerous voltage, and carelessly and negligently failed to take any precaution or exercise any due care and caution to prevent children of tender years and immature discretion from climbing said tree to gather blossoms and flowers; and carelessly and negligently failed to exercise due care and caution to prevent injury to such children as might climb said tree to gather flowers by providing proper safeguards against contact with said electric wires by said children; and cai’elessly and negligently failed to prune said tree so as to keep the limbs, branches and foliage of said tree a safe distance from said electric wires of defendant, as by the exercise of dne care and caution the defendant should have done; and carelessly and negligently and without due care and caution, for a long time prior to' and on May 12th, 1922, the said defendants strung and suffered and permit ted to remain, and did use the said electric wires in the conduct of its said business, the said electric wires containing high and dangerous voltages, and did string and did suffer said electric wires to pass through and remain in the branches and foliage of said Magnolia Tree; that on the -12th day of May, A. D. 1922, the plaintiff, a boy of eight years of age, a pupil attending said school, immature and wholly ignorant of the danger lurking in and near the said Magnolia Tree, by reason of the aforesaid carelessness and ¡negligent conduct and omissions of the said defendants while at the said station of the defendants, said depot or station being an unfenced place where school children with the knowledge and consent of the said defendants congregated after alighting from its said cars to attend the sessions of said public school and there to await the arrival of the time for morning report call in attendance at said school, said station or depot being then and there a public place known by the defendants to be frequented by the public and school children attending said public school adjacent to said depot or station, was attracted and lured to climb said tree and climbed the said Magnolia Tree for the purpose of gathering Magnolia flowers growing on the branches and in the foliage of said Magnolia Tree, and in gathering said Magnolia flowers come in contact with the high and dangerous current of electricity of the said defendants passing through and among the branches and foliage of said tree, on the electric wires aforesaid, of said. defendants, severely shocking plaintiff and rendering him unconscious, and severely burning plaintiff in the right hand and on his leg, causing plaintiff to lose two fingers from his right hand, bruising and disfiguring plaintiff permanently and burning plaintiff’s knee and seriously hampering plaintiff in his walk, ’ ’ &c.

The defendants demurred on grounds:

“1. It states no cause of action against the defendants, or either of them.

“2. The facts set up in the declaration show no negligence of the defendants, or either of them, causing the alleged injury to the said Frederick Stark.

“3. It does not appear that the defendants, or either of them, owed any obligation to the said Frederick Stark to protect him from the injury alleged in the declaration.

“4. It does not appear that there was any breach by the defendants, or either of them, of any duty owed to the said Frederick Stark.

“5. It does not appear that the electric wire described in the declaration Avas such an instrumentality as to require the defendants, or either of them, to protect the said Frederick Stark from it.

“6. The declaration is otherwise bad in substance. ’ ’

The demurrer was sustained, and the plaintiff, not desiring to further amend, final judgment for the defendants was rendered, and plaintiff took writ of error.

“One is held responsible for all the consequences of his act which are natural and probable, and ought to have been foreseen by a reasonably prudent man. Thus it has been held that if one unlawfully leaves upon a public street a truck loaded with iron which he ought to have foreseen would very likely be disturbed by heedless children, he is responsible for an injury •which occurs as the result of such disturbance. Lane v. Atlantic Works, 111 Massachusetts, 136, and see Lynch v. Nurdin, 1 Q. B. 29; Railroad Company v. Stout, 17 Wall. 657; Union Pacific Railway Co. v. McDonald, 152 U. S. 262.” “But even where the highest degree of care is demanded, still the one from whom it is due is bound to guard only against those occurrences which can< reasonably be anticipated by the utmost foresight. It has been well said that ‘if men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anixiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things. ’ Pollock on Torts, 8th ed. 41. ’ ’ Atchison, T. & S. F. R. Co. v. Calhoun, 213 U. S. 1, text 7, 9, 29 Sup. Ct. Rep. 321.

An “infant who enters upon premises, having no legal right to do so, either by permission, invitation, or license, or relation to the premises or its owner, is as essentially a trespasser as an adult; but if, to gratify a childish curiosity, or in obedience to a childish propensity, excited by the character of the structure or other conditions, he goes thereon, and is injured by the failure of the owner to properly guard or cover the dangerous conditions which he has created, the owner is liable for such injuries, provided the facts are such as to impose the duty of anticipation or prevision ; that is, whether, under all of the circumstances, he should have contemplated that children would be attracted or allured to go upon his premises, and sustain injury.” Briscoe v. Henderson Lighting & Power Co., 148 N. C. 396, 62 S. E. Rep. 600, 19 L. R. A. (N. S.) 1116.

Electricity is an invisible force, highly dangerous to life and property, and those who make, sell, distribute and use it are bound to use care in proportion to the danger involved. Jacksonville Electric Co. v. Sloan, 52 Fla. 257, 42 South. Rep. 516.

Persons or corporations engaged in the business of transmitting electricity for use in private houses are held to a high degree of care for the safety of the public and the safety of thoughtless, inexperienced and rash children.

Electric companies or persons engaged in transmitting electrical current into houses for domestic use are not insurers of the safety of children or adults and are not held to a degree of care, prudence and foresight beyond which prudent and careful persons have to exercise in such like circumstances. Key West Electric Co. v. Roberts, 81 Fla. 743, 89 South. Rep. 122.

The declaration alleges that the defendant electric companies in the operation of the railways, permitted to remain unfeneed on its right of way, directly at or near a station, a magnolia tree, of great height and numerous limbs and low-hanging branches, carelessly and negligently did string from one pole to another electric wires of high and dangerous voltage and defective and worn insulation, between the limbs and through the branches and foliage of said magnolia tree; that a public primary school of the county is adjacent to said depot and station and abutting defendant’s right of way, said school house being in close proximity to the said magnolia tree on defendant’s right of way and in plain view at all times of the children in attendance at said public school then in daily session and the place was frequented by school and other children of immature age and discretion; that the defendants knew, or by the exercise of due care and caution should have known “that the said magnolia tree in the Spring of the year and at the time hereinbefore alleged would and did bear blossoms and flowers, and would be attractive to children, and that children of immature age, discretion and experience such as were in attendance upon said public school, would, in following childish instincts, be lured and tempted to climb said Magnolia Tree when bearing blossoms and flowers, as was said ‘tree at said time,” and that the defendants carelessly and negligently failed to take precautions to prevent injury to children who might climb the tree, &c. The injured child was eight years of age.

These and other allegations stated a cause of action. See Chickering v. Lincoln County Power Co., 118 Me. 414, 108 Atl. Rep. 460; Wolf v. Ford, 7 Ohio App. 461; Benton v. North Carolina Public-Service Corp., 165 N. C. 354, 81 S. E. Rep. 448; Temple v. McComb City Electric Light & Power Co., 89 Miss. 1, 42 South. Rep. 874; 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. 924; Sweeten v. Pacific Power & Light Co., 88 Wash. 679,153 Pac. Rep. 1054; Mullen v. Wilkes-Barre Gas & Electric Co., 38 Pa. Supr. Ct. 3; Daltry v. Media Electric Light, Heat & Power Co., 208 Pa. 403, 57 Atl. Rep. 833; Lynchburg Tel. Co. v. Booker, 103 Va. 594, 50 S. E. Rep. 148; Mullen v. Wilkes-Barre Gas & Electric Co., 229 Pa. 54, 77 Atl. Rep. 1108; Consolidated Electric Light & Power Co. v. Healy, 65 Kan. 798, 70 Pac. Rep. 884; Nelson v. Branford Lighting & Water Co., 75 Conn. 548, 54 Atl. Rep. 303; Stedwell v. Chicago, 297 Ill. 486, 130 N. E. Rep. 729, 17 A. L. R. 829, and Notes, p. 837; 29 Cyc. 447; Beckwith v. City of Malden, 212 Mo. App. 488, 253 S. W. Rep. 17; Godfrey v. Kansas City Light & Power Co., 299 Mo. 472, 253 S. W. Rep. 233; Davis v. Florida Power Co., 64 Fla. 246, 60 South. Rep. 759; 20 C. J. 353; Godfrey v. Kansas City Light & Power Co., 299 Mo. 472, 253 S. W. Rep. 233; Godfrey v. Kansas City Light & Power Co., 213 Mo. App. 139, 247 S. W. Rep. 451; Znidersich v. Minnesota U. Co., 155 Minn. 293, 193 N. W. Rep. 449; Potera v. City of Brookhaven, 95 Miss. 774, 49 South. Rep. 617; Laurel Light & Ry. Co. v. Jones, — Miss. —, 102 South. Rep. 1; 36 A. L. R. 23. In Parshall v. Lapeer Gas-Elec. Co., 228 Mich. 80, 199 N. W. Rep. 599, the injured person was an adult. See 14 A. L. R. 1032.

In Key West Electric Co. v. Roberts, 81 Fla. 743, 89 South. Rep. 122, 17 A. L. R. 807, the defendant electric company could not reasonably have contemplated that the injured boy would come in contact with the fatal electric current under the circumstances. See 20 Cyc. 351. In Central of Georgia R. Co. v. Robins, 209 Ala. 6, 95 South. Rep. 367, 36 A. L. R. 10, the injured boy was fifteen years of age.

In United Zinc & Chemical Co. v. Britt, 258 U. S. 268, 42 Sup. Ct. Rep. 299, 36 A. L. R. 28, the danger was removed from the traveled way. See also Briscoe v. Henderson Lighting & Power Co., 148 N. C. 396, 62 S. E. Rep. 600; Wilmot v. McPadden, 79 Conn. 367, 65 Atl. Rep. 157; Willis Swartwood’s Guardian v. Louisville & N. R. Co., 129 Ky. 247, 111 S. W. Rep. 305, 19 L. R. A. (N. S.) 1112; Heller v. New York, N. H. & H. R. Co., 265 Fed. Rep. 192. Mc-Caffrey v. Concord Electric Co., 80 N. H. 45, 114 Atl. Rep. 395, 17 A. L. R. 813, was controlled somewhat by statute. In Austin v. Public Service Co. of Northern Illinois, 299 Ill. 112, 132 N. E. Rep. 458, contributory negligence was a factor. In New York, N. H. & H. R. Co. v. Fruchter, 260 U. S. 141, 43 Sup. Ct. Rep. 38, the danger was at a place where boys were not expected to go. See L. R. A. (N. S.) 1918E 1039 Notes; Briscoe v. Henderson L. & P. Co., 148 N. C. 396, 62 S. E. Rep. 600, 19 L. R. A. (N. S.) 1116.

In this case the tree was not on a street, but on a right of way near a railway station and a school house where children played, and the defendants reasonably should have foreseen and contemplated that boys of venturesome dispositions, but of immature discretion and no appreciation of the lurking dangers of live electric wires, would be apt to climb the tree that was so near and accessible to the public and particularly to children who played near by, and so attractive in bloom; and consequently the defendants should have exercised due care by insulation or otherwise to make and keep the wires strung through the branches of the tree, harmless to children of tender years who might climb the tree under circumstances as shown here. Liability in this case is predicated upon the peculiar facts and circumstances alleged in the declaration.

Reversed.

West, C. J., and Terrell, Strum and Brown, J. J., concur. Ellis, J., dissents.