So far as the defendant is concerned, the plaintiff's intestate was rightfully in the highway at the time he received the fatal shock. He was guilty of no trespass against the defendant and infringed no right of the latter. O'Brien v. Hudner, 182 Mass. 381; McGuire v. Spence, 91 N.Y. 303. Hence, cases against towns under the statute giving a remedy to travelers on the highway for injuries received from their defective condition (Varney v. Manchester, 58 N.H. 430), or against landowners for maintaining dangerous structures on their land (Frost v. Railroad, 64 N.H. 220; Hobbs v. Company, 75 N.H. 73), are not decisive authorities in this case.
In the view most favorable to the defendant, the relation existing between it and the deceased was that which arises between two licensees upon land of a third party. Each must use ordinary care not to injure the other or his property. In this case it is admitted that the defendant knew that children were in the habit of playing near its dangerous pole which it maintained in the highway and that they were liable to be seriously injured by the faulty construction of its appliances attached to the pole. It was therefore guilty breach of its duty to the deceased, which was the proximate cause of his death, as found by the jury. Duggan v. Railroad,74 N.H. 250; Lydston v. Company, 75 N.H. 23.
Evidence that the defendant erected and maintained the pole in the highway without having obtained a license therefor in accordance with the statute (P. S., c. 81, s. 2) was properly admitted. Clough v. Company,75 N.H. 84.
The requests for instructions assumed, in substance, that the defendant owed no duty to the deceased to use ordinary care in maintaining its electric light pole in the highway. As this position is clearly untenable, the exception to the refusal of the court to give the requested instructions presents no error.
Exceptions overruled.
All concurred. *Page 94