Keep v. Otter Tail Power Co. , 201 Minn. 475 ( 1937 )

There is no serious dispute concerning the facts, about the only controversy being as to whether they show the place in question to be a "playground." If treated in the light of a modern city "playground," the territory immediately adjacent to the place of the accident would not bear the dignity of that title. If considered as a place where farm boys assembled and carried on their youthful activities, the term "playground" would not be a misnomer. Whatever it is called, boys, including plaintiff, frequently gathered there, and defendant's line patrolmen had ample opportunity to discover this fact and the purposes for which they used it.

Defendant rests upon its motion for judgment. It is well established that in such a case the only question for consideration is whether it clearly appears from the record that plaintiff is not entitled to recover. 3 Dunnell, Minn. Dig. (2 ed. Supps. 1932, 1934, 1937) § 5085. In determining that question, the view of the evidence most favorable to plaintiff must be accepted. A judgment will not be reversed even though the trial court in its discretion could have granted a new trial. It must be clear from the whole record that the moving party, as a matter of law, was entitled to judgment on the merits. Thom v. N. P. Ry. Co. 190 Minn. 622,252 N.W. 660; Farmers State Bank v. Merchants M. State Bank,164 Minn. 300, 204 N.W. 965; Marquardt v. Hubner, 77 Minn. 442,80 N.W. 617.

The law applicable to the instant case has been definitely settled in this state. The writer of the majority opinion, Mr. Justice Olson, has referred to these principles, with characteristic modesty, by quoting from the opinions of other judges. No clearer enunciation of the rules applicable can be found than in his own opinion in the case of Anderson v. Eastern Minnesota Power Co. 197 Minn. 144, 148, 266 N.W. 702,704:

"The law applicable to the facts hereinbefore related is well settled. We think the court in Humphrey v. Twin State G. E. Co. 100 Vt. 414, 421, 139 A. 440, 444, 56 A.L.R. 1011, 1018, accurately states the applicable rule:

" 'Electricity has come to be a necessary factor in almost all lines of activity. Its usefulness should not be impaired or curtailed. But it is highly destructive when it escapes control; its capacity for harm is but little reduced by distance; it is invisible and undiscoverable; it strikes instantly and without warning. We deem it of the highest consequence, especially in a rural state like ours where hunters, fishermen, and others roam the woods when lawful, almost at will, and where high tension electric lines run in every direction, and wire fences are in common and increasing use, that those dealing in such a deadly agency should beaccountable to all whose likelihood of injury could reasonablybe foreseen.' (Italics supplied.)

"Our own cases are to the same effect:

" 'Electric companies are bound to use reasonable care in the construction and maintenance of their lines and apparatus. The degree of care varies with the danger involved. Where wires carry strong and dangerous currents of electricity a high degree of care must be exercised.' 2 Dunnell, Minn. Dig. (2) ed. Supps. 1932, 1934) § 2996. See also Interstate Power Co. v. Thomas (C. C. A.) 51 F.2d 964, 84 A.L.R. 681; Anno. 14 A.L.R. 1023 and 56 A.L.R. 1021."

If harm to others may be anticipated because of the fashion in which the undertaking is conducted, liability to those injured because of the method pursued follows whether or not the circumstances of the particular injury could be foreseen. Faribault v. Northern States Power Co. 188 Minn. 514,247 N.W. 680. Where high tension lines are so constructed that it is to be anticipated that persons will come into dangerous proximity to the lines, it is the duty of those having control of the lines to protect such persons from danger and to warn them so that they may protect themselves. Weber v. J. E. Barr Packing Corp. 182 Minn. 486, 234 N.W. 682; Neumann v. Interstate Power Co. 179 Minn. 46, 228 N.W. 342; Pattock v. St. Cloud P. S. Co.152 Minn. 69, 187 N.W. 969; Thornton Bros. Co. v. Northern States Power Co. 151 Minn. 435, 186 N.W. 863, 187 N.W. 610; Hoppe v. City of Winona, 113 Minn. 252, 129 N.W. 577,33 L.R.A.(N.S.) 449, Ann. Cas. 1912A, 247; Musolf v. Duluth Edison Elec. Co. 108 Minn. 369, 122 N.W. 499, 24 L.R.A.(N.S.) 451. Where the presence of children may be expected in proximity to a dangerous instrumentality of a character uncalculated to warn them of the hazard they run, due care demands that guards adequate to prevent their injury be adopted. Gimmestad v. Rose Brothers Co. Inc. 194 Minn. 531, 261 N.W. 194; Davidson v. Otter Tail Power Co. 150 Minn. 446, 185 N.W. 644.

It is conceded that defendant was dealing with a deadly agency. The poles carrying the wires transmitting this agency were maintained at a place frequented by plaintiff and other children. There were no warning signs on the pole in question nor on any other pole in the vicinity. The fact that no boy had been known to climb any of the poles at the place under consideration is of no special consequence. Afton Elec. Co. v. Harrison, 49 Wyo. 367, 54 P.2d 540, 541.

As the record stands the only question in the case is: "Should defendant, the distributor of a deadly agency, have reasonably foreseen that a child of plaintiff's age and discretion, known to frequent the place, would utilize the ground wire for the purpose of climbing the pole?" To me the answer to that question, in the light of the decisions of this and other courts, was clearly for the jury. What the majority opinion appears to overlook is that modern boys possess the same ingenuity in devising methods for climbing poles that modern engineers possess in devising methods for erecting lines. We cannot apply 19th century standards to the one and 20th century standards to the other.

The inclination of boys to climb trees is known. Notorious also is their proclivity for climbing poles to which are attached appurtenances which afford a means of ascent. The fact that the means afforded do not make ascent easy is no deterrent. The fact that skill is required is an added inducement to a boy to display his agility. That the ground wire was used as a means of accomplishing the feat in this case shows that it could be adapted to that purpose. Decisions that a jury may find that those maintaining power lines should reasonably anticipate the use by children of pegs or cleats attached to poles (Znidersich v. Minnesota U. Co. 155 Minn. 293,193 N.W. 449; note, 36 A.L.R. 34, at 184); of a lumber pile (Meyer v. Menominee M. L. T. Co. 151 Wis. 279,138 N.W. 1008); of bridges (note, 36 A.L.R. 34, at 160); of trees through whose branches electric lines pass (notes, 36 A.L.R. 186; 53 A.L.R. 1344, at 1356); and of lattice transmission towers (Hart v. Union Mfg. Power Co. 157 S.C. 174,154 S.E. 118), as a means of climbing into dangerous proximity to power lines, indicate that the jury in this case might reasonably find that a prudent man would anticipate the use of the ground wire by children, known to frequent the adjacent land, as a means of climbing the pole which would result in their coming into dangerous proximity to the transmission wires. How, then, can we say as a matter of law that a ground wire of the character of the one involved in this case is not such an appurtenance adapted for climbing that a reasonable man could anticipate its use for that purpose by children? About the only difference I can see between the means afforded in the instant case and those afforded in the examples referred to is the difference between tweedledum and tweedledee, and to me that difference is too slight in a case where the injuries are so serious that they admittedly justify a verdict of approximately $10,000 to admit of a holding as a matter of law that there was no negligence. I think that the use to which Wayne Keep put the ground wire in question might reasonably be found by the jury to be a foreseeable use, and that is sufficient to sustain a finding of negligence even though the particular manner in which it was used was unforeseeable. Faribault v. Northern States Power Co. 188 Minn. 514,247 N.W. 680.

The case of Afton Elec. Co. v. Harrison, 49 Wyo. 367, 373,54 P.2d 540, decided by the supreme court of Wyoming on February 18. 1936, involved facts very similar to the facts in this case. They are summarized in the opinion in the following manner:

"The structure to which the uninsulated wires were attached consisted of two poles, each somewhat more than 15 feet high. They sloped inward toward the top, and were about 7 feet and 7 inches apart at the bottom, and about 4 feet apart at the top. Toward the top were two horizontal wooden bars fastened to the poles so as to hold them together, the top bar being 14 feet and 7 inches from the ground, and the second about 1 foot and 7 inches below that. It was on this lower horizontal bar to which the deceased climbed, and in some way, by slipping or otherwise, probably threw his hands up and back and touched two of the wires, about 2 feet above him, and was by that act electrocuted. Close to the bottom of the poles were erected what are called juniper stubs, to serve as support to the poles. They were about 6 feet tall, about 2 feet from the poles, and were attached to the poles by several strands of wire in two different places, one of the fastenings being about 12 to 14 inches from the ground, and the other from 3 to 31/2 feet from the ground. The deceased apparently first climbed to the top of one of these stubs, using the strands of wire already mentioned as a sort of ladder. There were further attached to the poles two wooden crossbars, about 4 feet or a little more from the ground on one pole and crossing over to the other pole to a distance of about 9 feet from the ground. The deceased reached his destination, probably, by the help of these crossbars. The testimony shows that the poles were easily climbed by reason of these various attachments."

In sustaining a verdict in favor of the administrator for the death of a ten-year old boy, the court said [49 Wyo. 382]:

"The case, therefore, is not one in which it can be said that liability was clearly established. It would seem that the case is on the border line. And, though the point is not free from doubt, we think that there is sufficient testimony in the case to make it a question of fact as to whether the electric corporation should be held liable."

For the reasons stated, I do not believe the verdict, which has been approved by the trial court, should be disturbed.