Craft v. Fordson Coal Co. ( 1933 )

The plaintiff seeks to recover damages for personal injuries from contact with electric wires of the defendant, Fordson Coal Company. The circuit court directed a verdict against him.

The accident occurred about five-thirty o'clock P. M., on March 16, 1932. The plaintiff was then aged eighteen years and ten months. He had climbed in play upon the roof of a building leased as a garage from the coal company by his father (an employee of the company). Some uninsulated electric wires were strung about three feet above the ridge of the roof. After playing (on the roof) from ten to fifteen minutes, plaintiff unwittingly thrust his head against the wires and received a severe shock. He says he did not know the wires were there.

The ridge of the roof was thirteen feet high measured from inside the garage, and the eaves were estimated to be from eight to nine feet from the ground. The roof was almost flat for a space extending back from the eaves (distance not given), then rose at about 35° to the ridge. The building had formerly been used by the company as an electric sub-station, and when abandoned for that use, two steel bolts about a foot in length were left protruding from the back wall. Plaintiff says he reached up about two feet to grasp the first bolt; that the second bolt was two or three feet higher and by using the bolts and some cracks in the wall, he managed to clamber to the roof. It was proved that children habitually played on the roof, but it was not shown that any of the company's representatives knew of that diversion, or that any child had ever received an electric shock. Plaintiff had worked in and around mines for some two years and knew the use and the danger of electric wires. His father's residence was about 150 yards up the hill from the garage. Plaintiff admitted that he knew electric wires ran by the residence and down the hill in the direction of the garage; that he had noticed a pole — such as electric wires were strung on — standing some seven feet from the garage, and that nothing prevented him from observing the wires over the garage if he had looked. A witness (for plaintiff) testified that another boy "hollered" to plaintiff just before he got into the wires, "You better watch out there Clyde!" This evidence was not denied or explained by him.

Plaintiff takes the position that leaving the bolts in the wall of the garage was in effect an invitation to climb the wall, and that in stringing uninsulated wires so close to the roof the company failed to use due care to make the place safe for invitees. He also insists that he was at a place where he had a right to be, that he had no reason to anticipate the proximity of the wires, and therefore was not negligent in failing to observe them.

The plaintiff advanced the same positions before the circuit court as here. The learned trial judge handed down a written opinion in which he expressed doubt as to whether the proof disclosed any negligence on the part of defendants. He distinguished this case from one in which an infant had been injured under like circumstances. "But for the sake of argument" (only), he assumed that due care had not been used in locating the wires, and after detailing the plaintiff's experience in and around coal mines and his knowledge of electricity, continued:

"If he (plaintiff) had looked there is no question but what he could have seen these wires and his failure to do that does not relieve him from the duty to exercise ordinary care for his own protection. If he had looked and observed the wires he could have determined that they were uninsulated and his knowledge of electricity and his experience in and about the mines where electricity was used would have placed him on notice that to come in contact with those wires would result in injury to him. He states in his testimony that if he had seen the wires on top of the building he would not have run into them and when asked by the court why he would not have run into them he said, 'Because they were dangerous and they would kill me.' The court is of opinion that the plaintiff in this case, due to his age, knowledge and experience is chargeable with the same degree of duty for his own safety as would be required of an adult and by the application of the principles of law pertinent in such a case as this, the court is of opinion that the plaintiff is guilty of contributory negligence as a matter of law and therefore not entitled to recover from the defendants."

Counsel contend that the above expression that plaintiff was guilty of "contributory negligence" implies pre-existing primary negligence on the part of defendants and makes the question one for the jury. Counsel overlook that the circuit court had refused to find defendants negligent, but had assumed such negligence, as shown above, merely for the sake ofargument.

The ruling of the circuit court is so obviously sound that little need be added. It would be supererogation to review the authorities, since we have done so in many recent cases. See particularly Maggard v. Power Co., 111 W. Va. 470, 163 S.E. 27. The law is settled, as therein stated, that those who maintain electric wires carrying a dangerous voltage, are required to exercise care commensurate with the danger; but they are not insurers against all injuries from the wires; and the test of their liability in case of injury is whether a person ofordinary prudence would naturally have anticipated it. See generally the well-considered case of Austin v. Public ServiceCo., 299 Ill. 112, 132 N.E. 458, 17 A.L.R. 795.

The situation here must of course be regarded prospectively and not in retrospect. The wires were sixteen feet from the ground and at a place not frequented by the public at all, and to which an adult would not ordinarily be expected to go except to repair the roof. A housetop is itself a precarious place. Defendants had the right to assume that one mounting even to the flat part of the garage roof would make observations for his own safety. In such case the wires would be almost level with his vision, but a short distance from him and necessarily discernible. Therefore it could not be reasonably anticipated that a person on the roof would encounter the wires inadvertently. It may be admitted that plaintiff had the legal right to climb upon the garage, but that right alone did not require the coal company to insulate or elevate the wires, since they were plainly visible. Such a requirement would make the company an insurer (a burden not imposed by law). Because of his age and experience the plaintiff herein is not entitled to any of the legal indulgences extended a child of tender years. C. O. Ry. Co. v. Saunders, 116 Va. 826, 83 S.E. 374. It is asking too much of ordinary prudence to require that defendants should have anticipated (1) that a young man familiar with electric wires and familiar with the local situation would overlook what was seemingly remarked by the entire neighborhood including the children — that the wires passed over the garage; (2) that he would move around for ten to fifteen minutes on the roof of the garage in close proximity to the wires and still not notice them; and then (3) despite warning from a companion heedlessly climb into them. Even the children who played on the roof were more perceptive. The law requires no one to anticipate an act so unobservant of surroundings by one beyond the age of childhood. Nutter v. C. O. Ry. Co., 113 W. Va. 94, 166 S.E. 815, 817. The law ordinarily charges a person of unimpaired vision with seeing an object, "which if he had used his senses, he in the nature of things must have seen." Fulton, etc. v. Stichel, 135 Md. 542,109 A. 434, 437. Accord: Johnson v. WashingtonRoute, 121 Wn. 608, 609-11, 209 P. 1100; Seabridge v. Poli,98 Conn. 297, 301, 119 A. 214; DeHoney v. Harding, 300 F. 696.

The facts in this case are not in dispute, and should lead all reasonable minds to the same conclusions. Therefore, it was proper for the trial judge to say as a matter of law whether the facts presented a case of actionable negligence. "When in actions for negligence, the facts are undisputed and such that all reasonable minds must draw the same conclusions from them, it is the duty of the judge to say, if asked, as a matter of law, whether or not they make a case of actionable negligence." Ketterman v. Railroad Co., 48 W. Va. 606,37 S.E. 683. See the wealth of authority contained in the opinion. Accord: Donald v. Coal Co., 86 W. Va. 249, 103 S.E. 55; Krodel v. Railroad Co., 99 W. Va. 374, 128 S.E. 824; Jackson v.Ry. Co., 110 W. Va. 568, 159 S.E. 517.

The judgment of the circuit court is affirmed.

Affirmed.