Nichol v. Bell Telephone Co. , 266 Pa. 463 ( 1920 )

Opinion by

Mr. Justice Walling,

These actions are for injuries to a child, caused by tripping upon a telephone wire,, in which the father brings suit as next friend and in his own right. Plaintiffs reside at 6106 Walnut street, Philadelphia, and a family named Gambino resides on the adjoining lot; their back yards being separated by an iron fence which consists of posts with rails near the top and bottom through which upright bent rods extend, with the loops at the top, making what is known as a “hairpin fence” about three feet high. In the summer of 1915 the defendant, at Mr. Gambinos request, installed a telephone in his residence, which was connected up by a wire extending along on his side of the top rail of this fence and attached thereto by porcelain knobs. When the wire was put up Mrs. Gambino told defendant’s foreman that there were children in the neighborhood and living there, who went from one home to the other, and asked that the wire be put where children would not be playing. Thereafter the wire sagged between the knobs, to which she called the attention of a workman wearing defendant’s uniform, but nothing was done. There was a clothespole in the fence from which a line extended to Gambino’s porch, and the boy, William H. Nichol, herein called the plaintiff, then under five years of age, would climb the fence, assisted by the pole and clothesline, and play with the children in the Gambino yard. As he was attempting to do so on January 28,1916, his foot caught in this wire and he was thrown so that his face struck upon Gambino’s cement walk, causing the injuries complained of. Where his foot caught, the wire was against the fence and had sagged to within about eighteen inches of the ground, but did not form a loop in the sense of a noose so as to imprison the boy’s foot. Plaintiffs were at the seashore when the wire was placed there, but saw it on their return, and neither they nor the Gambinos requested its removal, until after the accident, although both permitted their children to climb the fence and play around it. These appeals by plaintiffs are from judgments refusing to take off the compulsory nonsuits, which had been entered on the ground that the evidence disclosed no negligence on part of defendant.

In our opinion the record justifies that conclusion. Plaintiff’s tender age precludes contributory negligence and we do not question his right to climb the fence and go upon the Gambino lot. On the other hand defendant placed the wire upon the property of its patron and was not a trespasser upon either lot; there was no contract relation or other situation by which a presumption of negligence could arise from the happening of the accident (Gramlich v. Wurst, 86 Pa. 74), and there is of course no responsibility for a mere accident as such (Bradley v. L. S. & M. S. Ry. Co., 238 Pa. 315; Joyce v. Black, 226 Pa. 408; Stearns v. Ontario Spinning Co.; 184 Pa. 519; Earle v. Arbogast & Bastian, 180 Pa. 409), nor anything to take this case out of the general rule that the burden is on plaintiff to prove defendant’s negligence; and that burden is not'here met. No witness, expert or lay, attempts to say that the wire was improperly located or rendered the place dangerous or states any facts from which such a conclusion can fairly be drawn. Even a child cannot establish its case except by proof of negligence: Kay v. Pennsylvania R. R. Co., 65 Pa. 269; Balt., etc., R. R. Co. v. Schwindling, 101 Pa. 258. And where there is no proof of negligence the court must direct a verdict for defendant (Huey v. Gahlenbeck, 121 Pa. 238; Phila. & Read. R. R. Co. v. Schertle, 97 Pa. 450; McCandless v. Phreaner, 24 Pa. Superior Ct. 383), or grant a nonsuit: Spickernagle v. Woolworth, 236 Pa. 496; Fink v. Wilkes-Barre, etc., Traction Co., 224 Pa. 618. True, the child tripped on the wire, but children trip on many objects perfectly harmless and properly located, so that fact does not prove negligence; and who can say it may be inferred merely because of leaving a dead wire upon an iron fence, taut or slack, even where children play? The wire extended neither to the top nor out to one side, so it is not easy to see how it added to the danger, especially as it was against the fence and protected by it. Had the wire been strung across a path or in the open, the case would be different. In jumping or climbing the fence it is less difficult to understand how a boy’s foot might be tripped by the rail or loops at the top, than by the wire hanging against the side. There would be only a possibility of the latter, and it happened here because the boy’s hand missed or slipped from the clothesline; this appears from the direct evidence and is corroborated by the circumstances that he fell facing the Gambino lot. Had the wire been so placed by Gambino, his responsibility would be equal to that of defendant, and, if liable for the wire, why not for the fence had the boy tripped upon it? However, the law does not place such a high degree of responsibility for ordinary occurrences, and “no liability arises, as a rule, in respect of injuries sustained from walls, fences, gates, and the like. And the same is true of simple tools and appliances, such, for example, as a ladder”: 20 R. C. L., sec. 79, p. 89. And, “in the absence of a statutory enactment, no obligation rests upon anyone to guard against injuries that cannot be foreseen in the light of common experience” : Ibid., sec. 26, p. 33. It is familiar law that one is liable only for natural and probable consequences, such as might and should be foreseen as likely to result from the act complained of.

In the case of Hall v. New York Telephone Co., 214 N. Y. 49, defendant’s employees left a bottle of denatured alcohol by the roadside, which was found by small boys, one of whom was injured by it being set on fire, and the court there stated that, “In order to hold the defendant responsible for the result of this accident, it must be found that the accident was the natural and probable consequence of the act of the servant in having left the alcohol upon the highway. The law requires that the injury must so directly result from a wrongful act that, according to common experience and the usual course of events, it might under the particular circumstances have reasonably been expected. (Jex v. Straus, 122 N. Y. 293.) We do not agree that the facts in this case created a condition the result of which might under the circumstances have been reasonably expected, and the liability of the defendant in this case it seems to us has been settled in analogous cases adverse to the claim of plaintiff. (Beetz v. City of Brooklyn, 10 App. Div. 382; Fitzgerald v. Rodgers, 58 App. Div. 298.) To hold the defendant liable in damages upon the facts in this case would, we think, establish a rule of liability beyond that of any of the adjudged cases.” To like effect see Donahue v. Kelly, 181 Pa. 93; and as to when a defendant is not liable for injury to a child, see Guilmartin v. Phila., 201 Pa. 518; Selve v. Pilosi, 253 Pa. 571; Milligan v. Bell Tel. Co., 62 Pa. Superior Ct. 197.

Defendants have been held liable for maintaining dangerous agencies in places known to be frequented by children, such as unguarded machinery, exposed live wires or explosives, open trap doors or pits, fires, etc.; but in each of these cases there was present a real danger such as under the circumstances should have been foreseen and guarded against. No case has been called to our attention, and we have found none, where a legal liability has been predicated because of injury by a thing so apparently innocuous as a dead wire upon the side of a fence. Had it been a live wire the case would be entirely different. As has been said, “wisdom after the event is easy,” but there was nothing in the situation here by which such an injury could reasonably have been anticipated. The danger could not have been manifest as both families freely permitted their little boys to play around the fence and wire until the moment of accident.

We recognize that in many instances owners and occupiers of real property are held to a different standard of liability in case of injuries to children coming upon their premises from that with respect to adults; and those who have a lawful right on the premises, knowing children to be there, stand in the same relation as to liability for their negligent acts to them as do the owners; where children are expressly or impliedly invited on the owner’s premises it is his duty, and that of those having a lawful right there, to exercise ordinary care with respect to the rights of the children, as well as others on the property. The law demands the use of due, reasonable and ordinary care; but under the operation of this principle, it is a general rule that where ¿n appliance, machine, structure or object is not obviously or inherently dangerous, and has been in daily use, and has proved uniformly adequate, safe and convenient, it may be further continued without the imputation of negligence, although it might have been made safer at slight expense. The owner is not required to anticipate and guard against dangers which might result from the improper use of objects which are safe in themselves and safe for the use for which they are designed. There are many such on a person’s property which childish impulse or curiosity might make a source of danger, and where an injury resulting therefrom could not be blamed upon the owner or the child. The wire, as it rested along the fence, was not in itself inherently dangerous, nor in any sense an attractive appliance; and the rule as to the latter only applies where the owner of land brings or permits thereon something of an artificial nature, which is both attractive and dangerous to children; then he is bound to use reasonable care for their protection. An owner is never held negligent for failure to anticipate injury to children or adults from appliances not dangerous nor likely to become so.

The fact that defendant’s foreman was notified that children played in the yard, and was requested to put the wire where they would not be playing, is important as notice of the habits of the children, but does not fasten liability upon defendant in the absence of evidence tending to show that the wire was so placed as to create a probability that injury would result therefrom. In other words, the notice did not impose upon the defendant the liability of an insurer of the safety of the children, especially not those of a third party.

A spear-pointed railing around an area-way in a sidewalk is lawful and imposes no liability upon the owner to one injured thereby: Kelly v. Bennett, 132 Pa. 218.

The evidence here not only fails to show negligence but fails to show any circumstances from which an inference of negligence can reasonably be drawn; and the facts being simple, and not controverted, their legal value is for the court to determine: Davidson v. L. S. & M. S. Ry., 171 Pa. 522; Wolf v. Phila. Rapid Transit Co., 252 Pa. 448; Wood v. Phila. R. T. Co., 260 Pa. 481.

The assignments of error are overruled and the judgments are affirmed.