Musser v. Ry. Co. , 122 W. Va. 365 ( 1940 )

The case presents a jury question, in my belief. Therefore, this dissent.

The evidence tends to prove that there were marks on the upper flange of the steel girder indicating where the electric current passed through nails in the boy's shoes as he stood there. The flange, four inches above the water box, is immediately adjacent to the wooden parapet or fence which is thirty-nine and one-half inches in height above the flange.

The uppermost charged wire in the catenary system is nine feet five and one-half inches below the top of the fence. This wire and the two immediately underneath it were wholly unprotected against contact by any person on the bridge.

Was the maintenance of these wires unguarded from above negligence on the part of their owner? In my judgment that is a question of fact for jury determination. Such manner of solution was employed in Parsons v. AppalachianElectric Power Co., 115 W. Va. 450, 176 S.E. 862, 100 A.L.R. 615. There a boy of eleven years climbed into the superstructure of a bridge where he either fell against or touched with his hand a high voltage wire suspended on a wooden arm or bracket attached to the top portion of the bridge at a height of seventeen feet from the roadway on the bridge. A jury verdict for the plaintiff was upheld by both the trial court and this Court. It is not clear to me why the same manner of trial should not be followed in this case.

If, as in the Parsons case, it is proper to take into account the propensities of an active boy to climb, why is it not also expedient to anticipate the inclination of a child to dangle an object in his hand when crossing over a bridge, though death lurks in charged wires immediately below? Of course, circumstances must be considered, and here the foot-wide top flange of the large beam on the east side of the bridge presented an inviting place for a boy to walk. Travelers along the highway had frequently noticed children on the water box and the flat top of the beam. And when a child was on the latter, only a thirty-nine and one-half inch board fence afforded a safeguard. It was no higher than the armpits of the injured boy. Small boy, though he was, he could and did readily extend an arm full length over the same. What is more natural than for a boy to have in his hand a stick, or a swinging string, rope, wire or small chain, or some combination of them? Persons responsible for situations such as existed at this bridge, cannot close their eyes to childish impulses and characteristics, nor can they be indifferent to the fact that where there is a passageway over uninsulated and unguarded electric wires the law of gravitation itself accentuates the danger by forever pulling toward the wires any object thereabove. A happy, carefree boy who dangles a string or a wire proceeds not alone but in conjunction with Newton's law. Also, he acts under the inherent and irrepressible impulse of youth to find outlet for surplus energy — a fact whereof all men must take notice.

In my judgment, there cannot be made any apt comparison between situations such as here presented and cases wherein a boy or other person on the ground makes contact, against the force of gravity, with a trolley wire many feet over his head. In such supposititious case, because of the more positive effort which would be involved in making contact, it could not properly be held that the owner of the electric wire should reasonably have anticipated the unusual conduct mentioned. And, even if the conduct were anticipated, there would be nothing he could do about it if the trolley system were to remain in service. But where there is a public passageway over trolley wires there may reasonably be anticipation of contact such as at bar, and the danger could readily be minimized or altogether averted by the installation of guards or shields.

The case of Adams v. Bullock, 227 N.Y. 208, 125 N.E. 93, cited by the majority, was wrongly decided in my opinion, and should not be taken as a worthy precedent. The court there applied harsh principles in total disregard of boyish propensities, and without the slightest regard to the obvious difference between the danger which attends passageways immediately over trolley wires, and the lesser danger which exists in streets or rights of way many feet underneath. Failure to note this manifest distinction is emphasized in the New York court's opinion, where, in justification of its refusal of recovery, though the accident occurred from overhead, the statement is made: "At any point upon the route a mischievous or thoughtless boy might touch the wire with a metal pole, or fling another wire across it."

In the instant case, the trial court set aside the verdict and awarded the plaintiff a new trial. This, I think, was proper, thus clearing the way for jury determination. I would affirm.

Judge Hatcher joins with me in this dissent.