Devost Ex Rel. Devost v. Twin State Gas & Electric Co. , 79 N.H. 411 ( 1920 )

As against the city of Berlin the plaintiff claims that his injury is due to its negligence in placing upon the vacant lot the compressor upon which there were uninsulated electric wires, which the plaintiff — a boy some twelve years of age — inadvertently came in contact with, while engaged in play. It is insisted that he was rightfully on the top of the compressor and that in that position he was not a trespasser. If he was a trespasser it seems to be conceded that the city owed him no duty in respect to the safety of his position, and that he is not entitled to recover damages from it resulting from his coming in contact with electric wires, owned and maintained by it. So far as the plaintiff's rights are concerned it is not important whether the compressor was rightfully or wrongfully located upon the lot. It was put there by the city and was its property, and while in that position the plaintiff climbed upon it and received his injury from the exposed wires. To determine the question of the city's liability it is necessary to ascertain what the relation of the parties was when the accident occurred. Is the plaintiff's contention sound that he was not a trespasser when he went upon the top of the city's compressor?

There is no suggestion in the case that the agents of the city expressly authorized him to occupy its property or that it was aware that he had previously gone upon the top of the building and might do so again. Nor can it be found that it impliedly authorized him to climb to the top of the structure from the mere fact that he, with other children, was in the habit of playing upon the vacant lot in close proximity to the machine. That they were rightfully occupying the lot as a play-ground, by license from the owner, a third party, is not evidence the city gave them a license or permitted them to play upon its property located upon the same lot. Lavoie v. Company, ante, 97. It was in the exercise of its proprietary right of using its property as it saw fit, subject to no right of others as licensees or invitees to enter upon and appropriate it for their convenience or enjoyment. If an adult had been passing his time on the lot watching the children at play and had, for purposes of his own, climbed upon the compressor, no one would undertake to say that he was not a trespasser or that he was acting under a license, express or implied, to occupy the city's property. But the fact that the plaintiff was a minor does not change the legal character of his act from what it would have been had he been an adult. Clark v. Manchester,62 N.H. 577, 579; Buch v. Company, 69 N.H. 257; Nappi v. Railway,78 N.H. 261, 266.

The argument that the compressor located upon their play-ground was an attractive object to the children who might naturally be induced to climb upon it while engaged in playing around it, and that consequently the plaintiff was rightfully there, to whom the defendant owed the duty of protecting him from the danger of electrocution, is not in accord with the well established doctrine of the cases in this state. In Frost v. Railroad,64 N.H. 220, 222 it is expressly decided that cases holding in substance that the "owner of machinery or other property attractive to children is liable for injuries happening to children wrongfully interfering with it on his own premises" cannot be followed. See cases above cited. The Frost case has also been cited with approval in other jurisdictions. Wilmot v. McPadden, 79 Conn. 367; Daniels v. Railroad, 154 Mass. 349; Nelson v. Company, 114 Me. 213; Paolino v. McKendall, 24 R.I. 432; Bottum's Adm'r v. Hawks, 84 Vt. 370; Walsh v. Railroad, 145 N.Y. 301. The fact, therefore, if it is a fact, that the compressor constituted an allurement to children and tended to induce them to play upon it is immaterial. It did not amount to an invitation to the plaintiff to climb upon it for the purpose of amusement. As the city was in the rightful control of its property and was guilty of no active intervention in consequence of which the plaintiff received his injuries, it is not liable in this action. Buch v. Company, supra; Hobbs v. Company, 75 N.H. 73; Garland v. Railroad, 76 N.H. 556; Lavoie v. Company, ante, 97.

Much importance is attached by plaintiff's counsel to the case of Thompson v. Company, 77 N.H. 92, where the plaintiff, a minor, received an electric shock while playing in the highway near one of the defendant's poles by coming in contact with a chain used to raise and lower a street lamp, which was charged with electricity. The decision is placed upon the ground or the assumption that the plaintiff at the time of the accident was rightfully in the highway and in the exercise of his highway right (Varney v. Manchester, 58 N.H. 430; Lydston v. Company,75 N.H. 23), and inadvertently put his hand onto the chain which extended to within three or four feet of the ground. He was in no sense a trespasser and was permitted to recover in the action because he was rightfully in the highway, and, without fault on his part, came in contact with the chain which the defendant negligently maintained at that point. That case is not an authority for the plaintiff.

If it could be found that either of the other defendant companies had any control of the uninsulated wires belonging to the city and might be regarded as in possession of them and bound to exercise reasonable care to keep them in a safe condition for persons rightfully upon the top of the compressor, they were not responsible for their condition to one wrongfully in that position as a trespasser. This conclusion is the necessary result of the foregoing discussion in relation to the liability of the city. If, on the other hand, they had no control of the wires or right of possession of the compressor, as seems to be the fact, it could not be successfully argued that they were in law responsible to one who might come in contact with the wires. The relation between the parties would be that of strangers and no liability would attach. Garland v. Railroad, supra; McGill v. Company, 70 N.H. 125.

If it is sound law that one who furnishes electricity to another for use in the latter's building, having no ownership or control of the inside wires, may be liable for injuries received from defectively insulated wires in the building, when he has knowledge of their dangerous condition (Curtis Electricity, s. 417), the burden is upon the injured party to show by sufficient evidence that the defendant has such knowledge. In this case the plaintiff fails to sustain that burden. To find from the evidence that the electric company had such knowledge would be mere conjecture.

The city's exception to the denial of its motion for a verdict is sustained, and the plaintiff's exceptions to the orders of nonsuit are overruled.

Judgment for the defendants.

PEASLEE, J., was absent: the others concurred.