I am unable to concur in the opinion of my colleagues holding that the original disposition of this appeal was correct and, hence, that the motion for a rehearing should be denied. While I still feel that the order of reversal was proper a closer study of the record for the purpose of disposing of this motion has convinced me that appellee was entitled to judgment and that we were wrong in remanding the case with directions to the trial court to enter judgment for appellant. The order should have been that a new trial be had.
The facts are stated in the original opinion reported in39 Ariz. 491, 8 P.2d 249, and will not be restated here in detail. Only those necessary to a proper determination of the appeal, as I see it, will be mentioned again briefly.
The metal poles, on one of which appellee was injured and which appellant erected and maintains in the Salt River Valley, are composed of two pieces of iron set somewhat wider apart at the bottom than at the top and so connected by crisscross irons running from near the ground to the top as to make them in effect ladders upon which persons may climb from the ground to a height of thirty feet. Near the top are attached cross-beams to which are fastened uninsulated, high voltage, copper wires conveying electric current. They have no guards or signs warning people of the danger of climbing them and many of them, through permission of its board of supervisors, were constructed and are maintained in the public highways of Maricopa county, including the one on which this accident occurred. At the top of a number of them birds had built nests and children, including appellee, were in the habit of playing in the public highways near them. They were accessible to and easily climbed by children of immature years as well as by older persons. *Page 297
On May 23, 1930, appellee, a boy twelve years of age, and two others, one his younger brother and the other, Woodrow Horn, also twelve years of age, were playing in the public highway along the canal when appellee began to climb one of the poles to look into a bird's nest. Following this eight others, not very far apart, were climbed for the same purpose, but whether all or only five of them were climbed by appellee is in dispute, the Horn boy testifying that appellee went up nine and the younger Compton boy that he climbed only five and the Horn boy four. However, when appellee reached the top of the last pole either of them went up he came in contact with one of the heavily charged wires, was badly burned and fell to the ground seriously injured. Appellee testified that he had seen other boys climb the poles and that he did not know that it was dangerous to do so, although other witnesses stated that he had been warned of the danger. He, according to his father, made poor grades in school, being at the time in the sixth grade.
The record further discloses that some years before these poles were erected the Bureau of Standards, United States Department of Commerce, had adopted certain "Safety Rules for the Installation and Maintenance of Electrical Supply and Communication Lines" and issued a handbook under that title containing them. On page 147 thereof under the heading, "Supporting Structures," appears subdivision A-5 reading as follows: "Metal Steps. Steps closer than six and one-half feet from the ground or other readily accessible place shall not be placed on poles." There was testimony in behalf of appellant to the effect that this rule was known to appellant but had become obsolete. The record, however, shows that it had not been changed by the Bureau of Standards and that it had been adopted by nearly all the states of the Union, including Arizona. It was agreed at the *Page 298 trial that its adoption here, due to certain facts not necessary to mention, did not apply to appellant, and hence, that the failure to comply with it in erecting and maintaining the poles could not and did not constitute statutory negligence.
Appellee contends with much force, however, that under these facts it was a matter for the jury to decide under proper instructions whether it was negligence to maintain in the public highways where children were in the habit of playing these ladder-like poles with uninsulated, highly charged, copper wires fastened to cross-beams near their tops, and I am unable to escape the conclusion that this position is well founded. Keeping in mind that negligence at common law is the failure to do what a reasonable and prudent person would have done under the circumstances, or the doing of something that such a person in a like situation would not have done, the proposition presented is whether by maintaining the poles in the manner pointed out appellant did what a reasonable and prudent person in a like situation would have done; in other words, whether by that act it violated the duty it owed children of immature years to use due care to protect them from coming in contact with the highly charged, uninsulated wires at the top of the poles. There can be no question but that the manner in which they were erected and maintained excluded any possibility of negligence so far as persons of mature mind were concerned, because the wires were securely fastened to the cross-beams thirty feet high where there was no reasonable probability, in fact hardly a possibility, that a person remaining on the ground or in a vehicle of any kind would come in contact with them and where no one who appreciated the danger of electricity and had no reason to climb the poles would do so. But whether this is true where children of immature years are concerned presents a wholly different question, for in that event *Page 299 a much higher degree of care in maintaining the poles might be required than if older persons only were to be considered.Talkington v. Washington Water Power Co., 96 Wn. 386,165 P. 87. In 20 R.C.L., page 37, appears this language:
"A higher degree of care must be exercised toward them (children) than toward persons of mature years. If one knows that such a person is in the highway, or on a railway, he is bound to a proportionate degree of watchfulness, and what would be but ordinary neglect, in regard to one whom the defendant supposed a person of full age and capacity, would be gross neglect as to a child, or one known to be incapable of escaping danger."
Viewing the situation, therefore, in the light of the duty appellant owed to children of immature years, can it be said that the evidence was sufficient to support the conclusion of the jury that it did not take the precaution for their safety in maintaining the poles that this duty required? If the poles as constructed and maintained were likely to be climbed by boys of the age of appellee and appellant knew this or should have known it the jury was justified in concluding that proper precaution was not used, and in determining this it had the right to consider the habit, inclination and propensity of boys of his age to climb ladders, trees, poles, lumber piles or anything climbable by them, for this characteristic of boy nature is so well known that no one, unless he has forgotten that he was once a boy, would deny it. Temple v. McComb City Electric Light Power Co., 89 Miss. 1, 10 Ann. Cas. 924, 119 Am. St. Rep. 698, 11 L.R.A. (N.S.) 449, 42 So. 874; also Spendler v.Williams, 67 Miss. 1, 6 So. 613. This alone, as I view it, justified the jury in concluding that the poles as maintained were likely to be climbed by boys and that appellant knew this. However, they could hardly have been regarded in this light *Page 300 had their steps started quite a distance above their base, as the standard for such poles set by the Federal Bureau of Standards and adopted by most of the states of the Union prescribes, or had climbing them been interfered with in some other way. The absence of steps near the ground, or the presence of other interference, would have suggested difficulty in climbing and in a measure served as a warning against doing so; but the presence of the steps and the absence of any interference, instead of having this effect, could have been viewed only as an invitation to climb.
"Any boy," says the court in Burns v. City of Chicago,338 Ill. 89, 169 N.E. 811, 814, "seeing a tree with low branches, a latticed structure affording easy foot and handhold from the ground up, or a pole with steps leading up from within a foot or so of the ground, might reasonably be expected to give expression to his inward urge to climb. The element of `attractiveness,' `allurement,' or `invitation to climb' is under such circumstances clearly present. But a boy's instinct to propel himself aloft would not be aroused in corresponding degree by the spectacle of a smooth iron pole, with the nearest step nearly 10 feet above the ground."
"The evidence tending to show a general custom not to place steps on the poles accessible from the ground indicates apprehension, at least," to use the language of the court inRobertson v. Rockland Light Power Co., 187 App. Div. 720,176 N.Y. Supp. 281, "that, if continued to the ground, children or others might be attracted thereto and might use the steps and come in contact with the current." McKiddy v. Des MoinesElectric Co., 202 Iowa 225, 206 N.W. 815; Wolczek v. PublicService Co., 342 Ill. 482, 174 N.E. 577.
If, however, the manner in which the poles were erected and maintained was not sufficient to show this knowledge on the part of appellant it is clear that it *Page 301 knew long before appellee was injured that children were climbing them because the record discloses that months prior to that accident the principal of the Alhambra School at its request had warned his pupils that it was dangerous for them to do so. Knowing, therefore, that the poles were located in a public highway where they were easily accessible to children of immature years who might be playing there and that in the exercise of their propensity to climb they would frequently ascend them, it was incumbent upon appellant to have anticipated that they would do this and that in doing it they would expose themselves to danger from the highly charged transmission lines at their tops. It was just as necessary in erecting and maintaining the poles that it discharge this duty to children as it was that it take proper steps to protect persons of mature minds from danger in other respects. Under the facts the jury's conclusion that appellant had not taken the proper precaution for the protection of children and was, therefore, negligent in maintaining the poles in the manner it did, found support in the evidence and should not be disturbed. It is held by many authorities that the question whether premises or instrumentalities are sufficiently attractive to entice children to the danger and to suggest the probability of accident to them is a matter for the jury to determine. 36 A.L.R. 127, note. In Hurd v. Phoenix Co., 7 Boyce (Del.) 332, 106 A. 286, the court in upholding a complaint alleging facts almost identical with those in this case said:
"It seems to be held by numerous authorities that if the object which caused the injury was located at a place where the child was invited, or had a right to go, and where children areexpected to be, was easily accessible, and attractive andalluring to children of tender years, the maintenance of such an object would constitute negligence." *Page 302
See the following: Clark v. Pacific Gas Elec. Co., (Cal.App.) 5 P.2d 58; Id., 118 Cal.App. 344, 6 P.2d 297;Stedwell v. City of Chicago, 297 Ill. 486, 17 A.L.R. 829, 130 N.E. 729; Klingensmith v. Scioto Valley Traction Co., 18 Ohio App. 290; Robertson v. Rockland Light Power Co., supra;Deming v. City of Chicago, 321 Ill. 341, 151 N.E. 886;Temple v. McComb City Electric Light Power Co., supra;Sweeten v. Pacific Power Light Co., 88 Wn. 679,153 P. 1054.
It is urged by appellant, however, and the contention is upheld in the original opinion and adhered to in the opinion denying a rehearing, that in climbing the pole appellee was a trespasser and as such not entitled to the protection that one rightfully ascending it would have. It is clear that children had as much right to be in the public highway as appellant had to place the pole upon which appellee was injured there, and that when an instrumentality, alluring but dangerous to children, is erected and maintained where they not only have the right but are wont to be, the party responsible for placing it there should be presumed to know that they would follow their childish instincts and walk over it, handle it, or climb it, whichever the occasion might demand. To say that a person may erect and maintain in such a place a dangerous instrumentality of this character without reasonably guarding it against this known propensity of children of immature years and be absolved from liability for an injury to a child who did not realize the danger of tampering with it upon the ground that in touching, handling or climbing it the child is a trespasser is in accord with neither reason nor one's sense of justice. A child of immature years may be technically a trespasser and yet in the exercise of the care reasonably expected of him under the circumstances. The fact that he follows his childish instincts by taking hold of or climbing a dangerous instrumentality *Page 303 placed in a public street, however legitimate its purpose there may be, does not make him an outlaw no longer entitled to the protection which the humanity of the law usually throws around child life. Kelly v. Southern Wisconsin R. Co., 152 Wis. 328, 44 L.R.A. (N.S.) 487, 140 N.W. 60. Hence, the act of a child in such circumstances, if a trespass at all, is only technically so and to it the doctrine applied to a trespass on private premises should not, and under many authorities does not, have any application.
In Clark v. Pacific Gas Electric Co., supra, a case in which a boy twelve years of age climbed a pole very much the same as the one in question for the purpose of attaching a tin can to the top of the pole as a play signal and was injured by coming in contact with an uninsulated wire, the court said:
"The pole in question was maintained by the defendant on a public street or highway, and therefore all cases dealing with private premises upon which poles are erected are inapplicable to any of the issues involved herein. Both the plaintiff and the defendant had equal rights to be upon the public highway, and the trespass, if any, as claimed by the defendant, could only consist in the climbing of the pole."
In Deming v. City of Chicago, supra, a boy climbed a tree in a public street of Chicago to get a kite and about twenty feet up was injured by coming in contact with an uninsulated wire used by the city for lighting purposes. The court said:
"This injury occurred in a tree in a public street, and the deceased was, therefore, not a trespasser at the time he waskilled. Stedwell v. City of Chicago, 297 Ill. 486, 17 A.L.R. 829, 130 N.E. 729. Plaintiff in error was bound, in placing in the street wires which carried a heavy load of electricity, to guard against accidents by the exercise of that degree of care commensurate with the danger incident to the use of such a dangerous agency. Hausler v. Commonwealth Electric Co.,240 Ill. 201, 88 N.E. 561. *Page 304 Whether the tree located in the public street was so attractive to children in their sports as to suggest the probability of such an accident as occurred, and whether the city was negligent in maintaining the wires as it did, were questions for the jury."
In Wheeling L.E.R.R. Co. v. Harvey, 77 Ohio St. 235, 122 Am. St. Rep. 503, 11 Ann. Cas. 981, 19 L.R.A. (N.S.) 1136, 83 N.E. 66, the court in discussing the historic case of Lynch v.Nurdin, 1 Q.B. 30, said:
"The child was rightfully in the street, and the fact that he meddled with the cart was not contributory negligence in one of his age, and it is not properly a case of trespass."
In Klingensmith v. Scioto Valley Traction Co., supra, a case very similar to this one in that a boy sixteen years of age climbed a steel pole erected in a public street to see whether he or his companion could climb the highest and was injured with electricity near the top, the court said:
"The doctrine of non-liability to a trespasser rests upon the principle that to require the owner of property to anticipate a trespass, and to prepare his property at all times for such an eventuality, would impose upon such owner a duty inconsistent with his sovereign right to use his property and control it as he saw fit. But under the facts in the instant case was the decedent a trespasser in the sense that term is understood in the application of this rule of nonliability? We think not. We are convinced from the language of the court in the Harvey Case that it did not intend to include within the scope of that decision injuries resulting to persons while upon property erected and maintained in public places, and particularly on public grounds where children and minors congregate to play and such fact is or should be known to the offender."
In Znidersich v. Minnesota Utilities Co., 155 Minn. 293,193 N.W. 449, a boy twelve years of age climbed a pole located in a public highway to recover *Page 305 a kite lodged on the wires thirty feet high and was injured by electricity. The court said:
"The differentiating element is found in the fact that the child injured has as much right in the street where the alluring instrumentality is maintained as the owner thereof, thus removing in a substantial way the element of unquestioned trespass necessarily presented where private property and premises are invaded. Barrett v. Village of Princeton, 135 Minn. 56,160 N.W. 190. The only element of trespass in the case where a public street is thus occupied is found in the technical wrong of the child in attempting to play with the offending attraction. And that act the jury may excuse, in the particular case, depending upon the alluring character of the article and the age and discretion of the child, with less hesitation perhaps than where there has been an actual invasion of the inclosed premises of another."
In Robertson v. Rockland Light Power Co., supra, a boy eleven years of age climbed a telephone pole to see whether he or his companion could climb the fastest or highest and crossed over to an electric power pole standing near it in the public highway and was injured about twenty-five feet up by coming in contact with the current of an uninsulated wire. In disposing of the contention that the pole was on its private property, and, therefore, in climbing it he was a trespasser, the court said:
"I think there is a material difference between trespassing upon private premises and using private property left unguarded and unattended, either temporarily or permanently, in a public highway."
See, also, Stedwell v. City of Chicago, supra; Charles v.El Paso Electric Ry. Co., (Tex.Com.App.) 254 S.W. 1094;Rine v. Morris et al., 99 W. Va. 52, 127 S.E. 908;Westerfield v. Levis, 43 La. Ann. 63, 9 So. 52.
In the opinion of the majority the Clark, Deming and Stedwell cases are not in point, and the Klingensmith, *Page 306 Znidersich and Robertson cases, though in point, are unsound in principle. To my mind it would be difficult to find a case more applicable than the Clark case decided only a few months ago. In it the plaintiff alleged that he "was attracted by the steps on said pole line and climbed from the ground to the top" and testified that he "saw the steps on the pole and saw that it was easy to climb" and that he went up to attach a tin can, while in this case the steps were also from the ground up and the plaintiff alleged that the "poles were especially attractive to children of tender age to climb" and that the defendant so placed them, constructed as they were, "easily accessible, and easily climbed, and in addition thereto, where birds would nest in the tops, making the climbing of the poles especially attractive tothe young and undisciplined mind," and he testified that they were easy to climb and that he went up to see the birds' nests, the evidence further disclosing that either he, or he and one of his companions, climbed nine of them, one after the other, in a short time.
The Deming case is equally applicable, because the holding that the boy climbed a tree in a public street to remove a kite and, therefore, was not a trespasser was placed upon the ground that the tree was in a public street and not that it belonged to some one other than the city, the owner of the electric wires and the defendant in the case. If this had been the basis of the court's action it would undoubtedly have said so, for it is just as probable that the tree was in a park in the middle of the street as that it was between the curbing and the sidewalk, but even if it was in the latter it was in a portion of the street belonging to and under the control of the city, for a grass plot between the sidewalk and curb is a part of the street and a child thereon is not a trespasser as against the city. Johnson v.Bay City, 164 Mich. 251, Ann. Cas. 1912B 866, 129 N.W. 29. The fact that the Stedwell case *Page 307 was cited as authority for the holding in the Deming case does not show that someone other than the city owned the tree. The statement that the city did not construct or own the pillar which the boy climbed and to which its wire was attached and that he was not a trespasser as to it does not signify that it would have held him a trespasser as to the city had it owned or maintained the pillar. The court passed on the situation confronting it and nothing else. When the city, by permission of the owner, attached its dangerous wire to the attractive pillar in a way that children in play might come in contact with it and be injured, it became responsible for the dangerous condition and the fact that it did not construct or maintain "the pillar would not, itself, relieve it from liability." The question whether the child was trespassing upon the rights of some stranger is immaterial and the inquiry should always be, Was the company negligent in stringing its wire where it had reason to believe that it would imperil the lives of children? Why, "if the electric company strings its wires along a highway through the branches of an apple tree," to use the language of the annotator in 17 A.L.R. 849, note V, "the character and location of which, together with the quality of the fruit, are such that an ordinary person, knowing boys, must know that they will go into that tree for apples, and knowing also that if they do they will be in imminent danger of electrocution, should it be absolved from liability for the to-be-anticipated result of its own act, in case a boy is so electrocuted because he did, what such person knew he would do, trespass upon that apple tree, even though he was trespassing on the rights of someone." Edwards v. Kansas City, 104 Kan. 684,180 P. 271. The four cases cited in the majority opinion in support of the view that the tree did not belong to or was not under the control of the city deal with public highways *Page 308 and not the streets of a city, hence are not applicable.
The Klingensmith, Znidersich and Robertson cases also hold, as the excerpts above disclose, that it is only technical trespass for a child to climb a pole similar to those in this case erected in a public street where he had a right and was expected to be, and, to my mind, are sound in principle. So long as the boy injured in each case was at or near the pole he climbed he was not a trespasser, because the pole was where he had a right to be, in the public street, and it was not necessary that it attract him to its vicinity to prevent his being a trespasser while there. But to relieve a child who enters private premises without an invitation, or a license even, and finds himself near a dangerous instrumentality maintained thereon from the charge of trespassing, it would be required to be shown that he was lured there by that instrumentality and that it came properly within the term, "attractive nuisance." The location, therefore, of the instrumentality may mark the difference between a child's being and not being a trespasser when at or near it, the result's depending on whether it is where he had or did not have the right to be. If in the public highway, these cases hold that the only wrong he could be guilty of would be, in these instances, the technical one of climbing the pole, and to this the consequence of a real trespass would not attach because the pole was not only constructed in a manner that would tend to cause appellee to give way to his childish impulse to climb, that is, with steps from the ground up or without interference of any kind, but was placed where he had a legal right to go and where it was anticipated he would be; in other words, right where it would lead him to do the thing he did do. To hold appellee more than a mere technical trespasser under these circumstances *Page 309 and relieve appellant of the responsibility of anticipating that he would follow his childish urge to climb the poles is to announce a rule of action wholly out of harmony with human experience.
Just how it may be said that when appellee climbed the pole he was no longer in the highway but had removed himself from it as effectually as though he had left it for the private premises on either side and consequently that he was no less a trespasser in the one instance than he would have been in the other I am unable to understand. By climbing the pole he did not leave the highway though this might have been the result if he could have lifted himself to the place of injury by his own bootstraps or had gone up in an aeroplane or a balloon, for there would then have been no connection between him and the ground; but as long as the pole on which he climbed and by which he was supported was in the highway he was there also, just as the driver of a truck or a rider of a bicycle is in the highway along which he is going. It is not necessary that one have his feet on the ground to be in the highway. If it were, the seven year old boy, for instance, who climbed a pile of cross-ties five or six feet high and was injured in doing so, was not in the street at the time and should have been treated as a trespasser. The court, however, declined to do so, stating that he had a right to be on the sidewalk regardless of the angle from which he approached it and that the company should reasonably have anticipated that children would be there and that ties stacked up on the sidewalk would be attractive as a place to play. Charles v. El Paso Electric Ry.Co., supra.
The reason courts impose liability for injuries from attractions located in a public highway much more liberally than when they are on private premises where children have no right to go is that their presence on the latter cannot always be anticipated *Page 310 but is invariably to be expected in a public place. 36 A.L.R. 149, note with many citations; 6 R.C.L. Supplement, page 1185;McKiddy v. Des Moines Electric Co., supra. In fact if the injury occurs in a public place, "the circumstances must be very peculiar to relieve the electric company of liability, while, if it occurs on the property of the power company, there must be peculiar circumstances to hold the company liable." 17 A.L.R. 833, note 1.
Inasmuch, therefore, as appellee in climbing the pole was not trespassing but merely following his childish instinct to climb, that is, doing the thing it should have been anticipated one of his immature years would have done under the circumstances, he was in no sense contributing to his own injury and the jury was justified in concluding that in maintaining the pole in the manner described appellant had not fulfilled the duty it owed appellee and that in failing to do so it was guilty of negligence. And this is true whether he went up the pole to attach a tin can, to remove a kite, to look into a bird's nest, to see which of two boys could climb the highest or fastest, or to evade a playmate in a game of tag. The only effect of the bird's nest, whose presence appellant had known of for many months, was that it furnished an additional reason why it should have been anticipated the poles would be climbed by children of immature years. Its presence there might be urged in favor of appellant with much force if the poles had been maintained in such a way as to render them more inaccessible and difficult to climb, that is, had there been no steps within seven or eight feet of the base or other interference instead provided.
If the case be disposed of strictly upon the theory that the pole was an attractive nuisance as held in the original opinion and adhered to by the majority in disposing of the motion for a rehearing, it still follows that the fact that appellee stated that he *Page 311 climbed the pole to see the bird's nest should not defeat his cause of action since to have this effect it should have been the sole attraction, that is, the pole itself should have formed no substantial part of it, and it is a fair inference from the facts that it was just as important a factor, if not more so, in leading him to climb it as was the bird's nest. The jury evidently felt this way because it returned a verdict for appellee after the court had specifically and definitely instructed it that if "the reason that the boy climbed the pole was the existence of the bird's nest thereon, your verdict must be for the defendant," and, to my mind, it was justified in its conclusion notwithstanding appellee's statement regarding the bird's nest, for he and one of his companions climbed nine of them in a short time and he said they were easy to climb. In addition, they were alluring and attractive to him for this purpose, a fact that the jury knew as a fact from common experience. It is equally clear, however, that this appeal would not have been so strong, if it in fact had had any existence at all, in the absence of steps within seven or eight feet of the ground or in the presence of other interference instead. In this event, it is almost certain that the attraction of the bird's nest would not have led him to climb even the first pole, much less eight others, in more or less rapid succession. The fact that he was not given the opportunity to say he enjoyed climbing the poles should not defeat his claim when the fact that he did is one that speaks for itself.
It is clear to my mind that appellee is entitled to judgment and to deny it for the reasons assigned appeals to me as overlooking the substance in pursuit of the shadow.
However, the case should go back for a new trial because the jury had no guide whatever by which to measure appellee's damages. It was clearly the *Page 312 duty of the court to have instructed on this subject for without it the jury was at sea as to the method it should use in arriving at the proper amount. Southwest Cotton Co. v. Ryan, 22 Ariz. 520,199 P. 124; Curry v. Windsor, 22 Ariz. 108,194 P. 958. The damages allowed, $25,000, are heavy, and while this amount may not be more than the jury should have given yet this fact, together with a lack of any rule by which to measure them, demands that a new trial be had.
Such should be the order of the court.