This case was brought, tried in the circuit court, appealed, briefed and argued and decided in this court on the theory that the foundation of the action was appellant's neglect of duty in maintaining an uninsulated wire in a place where it reasonably ought to have anticipated the lawful presence of persons who might "come into close proximity to its wires for purposes of either business or pleasure." At *Page 490 least as late as the oral argument in Division it had not occurred to counsel to suggest that this case in any way depended upon the "attractive nuisance doctrine." In its original brief (pp. 14, 15) appellant summarizes the petition and answers as follows:
"The petition states that on the 10th day of August, 1919, appellant was engaged in manufacturing and distributing electrical current and maintained an electric wire carrying a high and dangerous amount of electricity; that the wire passed over what is known as `McElroy Place;' that the place was much frequented by children; that it was the custom of children to play thereon; that there were several nut-bearing trees thereon; that it was the custom of the children to climb to gather nuts in the season; that the electric wire ran through and against the branches and foliage of one of said trees and near to the trunk of the same; that the wire was uninsulated and carried a dangerous and deadly current of electricity; that the tree was a walnut tree, twenty-five feet in height, with the lower branches fifteen or sixteen feet from the level of the green surrounding the same; that the tree was a small tree, and easy for boys of ten years to climb; that the wires were so located in the tree that anyone climbing therein would be likely to come in contact therewith; that boys were accustomed to climbing said tree and that said facts were known to appellant at the time of the construction of said wire, or would have been known by the exercise of ordinary care; that appellant carelessly and negligently so constructed said wire and knew of said facts in time by the exercise of the highest degree of care to have remedied the condition and averted the injury to respondent; that on the 10th day of August, 1919, he climbed the tree for the purpose of picking nuts, not knowing the danger created by the wire, and whilst climbing in said tree, came in contact with the wire, or received a shock from said wire through the escape of electricity into the limb of the tree; that by reason of said coming into contact with the wire or receiving *Page 491 into his body a current escaping from the wire, he was rendered unconscious and injured, etc.
"The negligence charged against appellant is `that it carelessly and negligently so constructed said wire' with knowledge of the facts aforesaid it had time by the exercise of the highest degree of care to have remedied the same, which it carelessly and negligently failed to do."
"The answer denies the allegations of the petition and pleads contributory negligence."
After epitomizing the evidence, counsel insist: (1) That appellant was not negligent because, in the circumstances shown, it did not appear it ought to have anticipated the presence of any one in the tree, and (2) because respondent was a mere licensee. The insistence was that there was no showing of facts that imposed a duty to anticipate the presence of any one in the tree and guard against the injury. Counsel distinguished the Williams Case on the ground that the wire in that case was maintained through a tree in a populous city. No case cited or argument made in that brief indicates that counsel had any idea that the attractive-nuisance or turn-table doctrince was at all involved. That able and seasoned counsel for appellant did not discover the present theory on the trial, nor until after an adverse opinion in Division, is worthy of note. The theory was not advanced within the time fixed by the rules for new assignments of error in Banc after transfer and, under numerous rulings, is not before the court for that reason. Nevertheless, new briefs raise the point, though out of time, and the dissent is founded upon it.
The attractive nuisance doctrine is not involved in this case. The land was not that of appellant, but was owned by a gentleman who had for many years permitted its habitual use by large numbers of persons, including church, lodge and school picnic parties and other groups, as well as individuals. The evidence tended to prove that it was a veritable playground. There was a pond in which *Page 492 the children swam. There were walnut trees from which they gathered nuts. There were wild flowers in profusion, and they gathered these. These things may account for the presence of the children, but no injury came from them. They made the place a playground — with the owner's consent. In this situation appellant sometime ago took down its insulated wire and stretched an uninsulated wire through the walnut trees. These trees were of a kind easy to climb. In view of the propensity of boys to climb, this imposed the duty to anticipate the presence of boys in the trees and probable injury to some of them from a wire like that appellant installed. If appellant had stretched its live wire around a party of picnicing children then in the pasture and one was hurt by it, would it be an answer to say: "The children were attracted to the place by the pond, the trees, the flowers, the grass, the sun; since they were attracted to the place, the turn-table doctrine applies to them; we are not extending that doctrine; therefore, there can be no recovery?" This is essentially what is held in the dissenting opinion, in principle. The children were there. What brought them there in view of the long and general use, with the owner's consent, is no concern of appellant. Through a place, a tree, where it was practically inevitable boys would go, appellant put up its uninsulated wire and maintained it there. To say it should not have anticipated that boys would climb trees in their playground like those described, is for court and counsel to forget their own boyhood and all their later experience with children and deny the existence of an obvious natural instinct. Unless that be denied, appellant ought to have expected the boys, who were allowed to frequent the place, to climb the trees and should have taken precautions accordingly. Thus charged with notice of the probable presence of boys in the trees, it was negligence to string and maintain this heavily charged uninsulated wire through the branches. This is an ordinary case of negligent failure to take due precaution to prevent injury *Page 493 from a dangerous agency to those whose lawful presence in the place where it is installed and maintained is a reasonable probability. In circumstances like those in this case recovery is allowed even by courts which deny outright the validity of the whole attractive-nuisance or turn-table doctrine. [Guinn v. D. A. Tel. Co., 72 N.J.L. 276.] That doctrine has to do, mainly, with questions of trespass, invitation and notice. It begins with the ordinary rules of negligence, and works to an answer to the defense of trespass and to the claim that there was no duty to anticipate the presence of children. The lure of the turn-table is said to constitute an invitation. There is not an element in this case dependent upon that doctrine, as a statement of it shows. The quotation from the petition in the dissenting opinion shows merely that the pleader described the tree as one easy to climb. This was pertinent to the duty of appellant to expect the presence of boys in the trees, in following their natural tendencies. The instruction submitted nothing more. If the trees had been such that boys could not climb them, and every boy has found trees of that kind, that would have been proper matter in refutation of the charge that it was appellant's duty to expect them to climb the trees. Both the allegation and the instruction were in accord with the trial theory of counsel on both sides, and of the theory of the opinion of SMALL, C.
What has been said applies to the remark in the dissenting opinion in regard to the Williams Case and the Temple Case. That the pleader in the Williams Case, after stating a cause of action on the true theory, incorporated in his allegation the word "attractive" could not, of itself, render applicable a doctrine wholly foreign to the real case pleaded. To say that children are attracted to a tree and "did play there" is only to say that their presence there for purposes of pleasure was to be anticipated. The majority opinion in the Williams Case, 187 S.W. l.c. 557, which is now approved in the dissenting opinion, expressly held that the attractive nuisance *Page 494 doctrine was wholly inapplicable to the facts. Considerable discussion is devoted to the point. Kelly v. Benas is there cited and discussed. The case was decided in the Court of Appeals, as it was here, on the rule of negligence applicable to the facts. It seems clear that the use of the word "attractive" in the petition in the Williams Case and in the opinion in the Temple Case is the single ground for the attempted application of the turn-table doctrine to this case. The oft approved rule in Geismann v. Electric Co., 173 Mo. l.c. 674, and like cases, in so far as it applies to persons lawfully in a place for purposes of pleasure, must go by the board if the fact that one is "attracted" to the place is always to be a defense to a charge of negligence in maintaining electric wires. This is the gist of the dissent.
The implication in the dissent that the court was not fully advised of the real situation in the Williams Case, disappears unless the turn-table doctrine was the foundation of that case. Since that doctrine had nothing to do with it, the complaint is simply that the court failed to decide that case on a doctrine which was quite without application to it and whose application had been expressly and correctly denied in the court from which the cause was transferred — the opinion in which is now approved in the dissent in this case as it was approved, except on its view of certain facts, in the opinion here. [274 Mo. l.c. 8, 9.]
The instant case is well decided. Ragland, J., concurs.