Baecher v. McFarland , 183 Va. 1 ( 1944 )

Browning, J.,

delivered the opinion of the court.

This case grows out of an accident which happened on the sixth day of November, 1940 in the city of Norfolk, Virginia. Mrs. M. Etta Baecher, now deceased, owned a tract of land containing 25 acres which is adjacent to a suburban development called “Winona”.. Mrs. Baecher’s home is located on this acreage.. The entrance to her home is just off a street called Ashland Circle. The road to her premises is connected with this street and this was made possible by the purchase of a lot, which is now included in the 25 acres, a portion of which is taken up by the approach to Mrs. Baecher’s entrance, which is a private way and which, at the time of the accident, was designated as “Baecher Road, Private”.

The Baecher acreage is enclosed and where one enters it by the private road extended from Ashland Circle, there are two gates, a large one for vehicles and a small one for pedestrians. The gateways are built into and constitute a part of a front enclosure, called a “stock fence”, which is constructed of wire four feet high and over the top are strung three strands of ordinary barbed wire. This fence had been standing for many years prior to the time of the accident. The barbed wire was made a part of it to protect the property and livestock thereon, particularly sheep, from the ravages of dogs. The posts put in the ground for the purpose of hanging the gate or gates, were supported by pieces of scantling attached to the fence and extending obliquely to the posts.

On the day mentioned, Dana Ann McFarland, a child five years and sortie months old, who was visiting her grandmother who lived very near the Baecher property and nearer the private entrance thereto, was attracted by a horse running loose on the Baecher acreage. She climbed up the fence by means of one of the stays or scantling supports, presumably that she might have a better view of the horse. Her grandmother had gone out in the backyard with her to do some chores and the weather being cold, called hurriedly to her little granddaughter tó come along indoors with her. The little girl jumped and in some way, not made very clear by the evidence, she came in contact with a barb of the wire which tore an ugly scar in her face.

Suit was brought for the child against Mrs. Baecher alleging negligence in having and maintaining a dangerous instrumentality within reach of children, which would likely attract and injure them. A jury rendered a verdict in favor of the plaintiff for $500 which was confirmed by the court. The plaintiff, to further establish her case, introduced and relied upon two ordinances of the city of Norfolk, which-are: Section 94:

“No barbed wire shall be used for enclosing any lot or lots within the city of Norfolk.

“A fine of $5 for each day shall be imposed for any violation of this section.”

and Section 1215:

“No barbed wire fence shall be used along any public thoroughfare within the city.”

We are of the opinion that neither of the ordinances applies to the situation presented. As to Section 1215, it seems plain from ’the photographs of the situation which were in evidence that the offending fence is not along any public thoroughfare within the city. It is urgéd by the plaintiff that the public used the unpaved and extended way from Ashland Circle to Mrs. Baecher’s entrance and that such use was permitted and acquiesced’in by the owner. But even so, we do not think that the premises come within the meaning and intendment of the statute. Much the same may be said as to the application of Section 94. Manifestly, it was never intended to apply to a case in which the owner con-' structed a fence wholly on his property, and not contiguous to that of any other land owner. As well say, that the owner of acreage which is included within the limits of the city cannot erect a wire pen for the enclosure and protection of animals and string over the enclosure strands of barbed wire. Surely there could be no such legal inhibition.

But if the ordinances did apply, it, in our opinion, would not be conclusive of the case. We have repeatedly held that the violation of a statute or an ordinance does not make the violator guilty of negligence which will support a recovery for damages unless the violation is the proximate cause of the injury. . .

See Bassett & Co. v. Wood, 146 Va. 654, 132 S. E. 700; Shoemaker v. Andrews, 154 Va. 170, 152 S. E. 370; Hubbard v. Murray, 173 Va. 448, 3 S. E. (2d) 397.

It is true that the court has said that, whether or not there is a direct causal connection, other than the mere violation of the ordinance, between the prohibited thing and the injury, is usually a question for the jury. Here, however, the direct causal connection between the presence of the barbed wire and the injury is patently lacking. This case comes under the influence of the case of Crosswhite v. Southern R. Co., 181 Va. 40, 23 S. E. (2d) 777, where this quotation was approvingly cited:

“An employee cannot recover for a violation of the statutory duty to provide safety appliances, such as the Boiler Inspection Act requires, unless the failure to comply with the statute is a proximate cause of the accident which results in his injury; as it merely creates a condition or situation in which the accident happens from other causes, there is no liability. * * * * Ford v. McAdoo, 231 N. Y. 155, 131 N. E. 874; Fredericks v. Erie R. Co., 36 F. (2d) 716; Anderson v. Baltimore, etc., R. Co., 89 F. (2d) 629.

To our minds the fence with its barbed wire merely created a condition or situation, which had existed for many years, which the child used, unwittingly, resulting in the accident. She was not an invitee, she was a trespasser. There is a line of cases decided by this court which involve the careless disposition of a bright, shiny thing, as a dynamite cap, or a charged electric wire which by their very nature attract children, and which are highly dangerous and one who is the cause of their presence, where they ought not to be, is liable for injuries to children on account of them. We think a barbed wire fence or a fence with a barbed wire strung over the top of it is not such an instrumentality.

The case of Lunsford v. Colonial Coal, etc., Co., 115 Va. 346, 79 S. E. 348, is very much in point. There the offending instrumentality was an electric wire which was strung along motor poles and used to supply light to the coal company’s barn and one of its tenant houses. There was a motor track in front of the dwellings of persons who were in the employ of the company. There was some space between the dwellings and the motor track which the children of these families used for a playground. There was a pathway leading from the dwellings' across the track to the post office and a commissary. In the opinion, this was said:

“Shortly, before the casualty, which caused the child’s death two days later, the wire broke at a point five feet from the path. The details of the accident may best be told in the language of an eye witness, Mrs. Farbush, who says: ‘I saw the little boy, the brother of May, take hold of the wire and put the end against the track and it made a flash. I supposed at the time they had powder there. The little girl then took hold of the wire and stuck it down and there came a flash and set the little girl’s clothes on fire. The boy was about six years old.’ ”

It appeared that the children did not have any business at the point of the accident; that they were there in disobedience to the positive orders of their parents, and without the knowledge or consent of the company. They were held to be trespassers, or at most bare licensees, upon the track, and the court further held that the company did not owe them the duty of having the place of accident in safe condition. It was said that the owner of the property or place where the accident happened, must not intentionally nor willfully injure a trespasser, or licensee, but he owes him the active duty of protection, only after he knows of his danger, or might have known of it, and avoided it by the use of ordinary care and that the rule referred to applies as well to infants as to adults.

Proximate cause is quite elusive of satisfactory definition. In the case of Spence v. American Oil Co., 171 Va. 62, 197 S. E. 468, 118 A. L. R. 1120, it was a prominent issue and there we cited a number of cases and some text law designed to make plain this troublesome doctrine, and to it we refer.

The use of barbed wire as a material in the construction of fences is so common and universal that we cannot classify it as a dangerous instrumentality. Its employment ordinarily. does not suggest negligence and we do not think it does here. If by any stretch of the imagination it could be so considered, then, its connection with the accident, as a cause, is so broken and remote, and so entirely superseded by the independent act of the child as to make impossible foreseeable sequence. The incident was a pure accident for which no one is responsible.

We have referred to the question of proximate cause as one ordinarily and usually for the jury, but courts are just as obliged to set aside verdicts of juries where they are palpably wrong as they are to sustain them when they are justified by the evidence and the law.

See Bohlkin v. Portsmouth, 146 Va. 340, 348, 131 S. E. 790, 792, 44 A. L. R. 810; Nicholson v. Garland, 156 Va. 745, 751, 158 S. E. 901.

The judgment in this case is erroneous, and it is reversed and final judgment is entered for the defendant.

Reversed and final judgment.