This is a case which in its circumstances and horrible and distressing consequences appeals most strongly to the sympathy of the Court; a bright, spirited boy, full of the buoyancy of youth, thoughtless of danger, undertakes a too hazardous venture and comes to an untimely death. The Court, however, is confronted with the cold issue of law, free from the intriguing influences of sentiment, sympathy and horror, whether upon the record and the facts proved, the verdict can be sustained, and the owner of the property on which the accident happened, held responsible for its consequences.
To sustain the verdict, the plaintiff relies upon a rule, which in the quoted remark of his Honor, Circuit Judge Frank B. Gary (concurring opinion in the Renno case), is stated to emanate "from an enlightened humanity that places human life above the dollar." But as was said by the Court in the case of Buddy v. R. Co., 276 Mo., 276,207 S.W., 821, 825:
"Ought, then, a doctrine resting, firmly and beneficentlywe concede, but solely, upon the humane sentiment of putting humanity above property, * * * but otherwise ignoring legal landmarks and all other known and settled grounds of legal liability, be, absent legislation, further extended? We think not."
The designation of the doctrine commonly referred to as the "attractive nuisance doctrine" is unfortunate; it would be more properly designated as the "attractive instrumentality doctrine," the word "nuisance" indicates an unlawful use of one's property to the damage of another; in this case it could not be contended that the defendant was at the time of the injury making such use of its property.
We have then to deal, in limine, with the unquestioned lawful use by the defendant of its own property upon its own premises, in relation to one admittedly a trespasser upon that property; the deceased boy may have been a licensee so far as using the premises as a playground, but as to the *Page 203 tower he unquestionably was a trespasser. The presumption is that such lawful use by the defendant of its own property did not create a legal liability; if it did cause injury to another, the burden is necessarily upon such other to show circumstances of mal use which directly produced the injury.
The general rule, applicable alike to adults and children, is that whether trespassers or licensees, the proprietor of the premises is not required to keep them in a safe condition for their benefit.
"Generally, the owner or occupier of premises owes the same duty to adults and children, who go upon the premises by express or implied invitation. As a general rule, he is not required to keep them in a safe condition, for the benefit of trespassers or licensees whether they are adults or infants."Sexton v. Wall Const. Co., 108 S.C. 516, 95 S.E., 129,131.
In Franks v. Southern Cotton Oil Co., 78 S.C. 10,58 S.E., 960, 961, 12 L.R.A. (N.S.), 468, the Court quotes with approval the following from Thompson on Negligence:
"As a general rule, he is not bound to keep his premises safe, or in any particular condition, for the benefit of thetrespassing children of his neighbors, or for the benefit of children who occupy no more favorable position than that ofbare licensees." (Italics by the Court.)
In New York, N.H. H.R. Co. v. Fruchter, 260 U.S. 141,43 S.Ct., 38, 39, 67 L.Ed., 173, the Court said:
"Infants have no greater right to go upon other people's land than adults, and the mere fact that they are infants imposes no duty upon landowners to expect them and to prepare for their safety." The foregoing is a quotation from the case of United Zinc Chemical Co. v. Britt,258 U.S. 268, 42 S.Ct., 299, 66 L.Ed., 615, 36 A.L.R., 28.
In the case last cited (Britt), the Court said further:
"If the children had been adults they would have had no case. They would have been trespassers and the owner of *Page 204 the land would have owed no duty to remove even hidden danger; it would have been entitled to assume that they would obey the law and not trespass."
A well-recognized exception to the general rule above stated appears in cases of children who with "drawings strong" have been attracted by their childish instincts of play, amusement, curiosity, or dare-deviltry to climb, meddle with, play upon, a dangerous instrumentality left exposed in a place or under circumstances in which the proprietor may have had reasonable grounds to anticipate their trespass or exercise of an implied invitation, a license.
In Franks v. Southern Cotton Oil Co., 78 S.C. 10,58 S.E., 960, 961, 12 L.R.A. (N.S.) 468, the Court in its opinion quotes with approval the following from Thompson no Negligence, § 1024.
"A well-grounded exception to the foregoing principles is that one who artificially brings or creates upon his own premises any dangerous thing which from its nature has a tendency to attract the childish instincts of children to play with it is bound, as a mere matter of social duty, to take such reasonable precautions as the circumstances admit of, to the end that they may be protected from injury while so playing with it, or coming in its vicinity."
The Court also quotes the following from Cooley on Torts, 624:
"In the case of young children, and other persons notsui juris, an implied license might sometimes arise, when it would not in behalf of others. Thus, leaving a tempting thing to play with exposed where they would be likely to gather for that purpose may be equivalent to an invitation to them to make use of it."
In the Franks Case, the Court also quotes with approval the following from 1 Street Foundations, 160:
"Liability in the turntable cases is strictly put upon the ground of implied invitation to children to come upon the premises in order to play there, the invitation being supposed *Page 205 to arise from the attractive nature of these dangerous engines."
And the following from 1 Bishop Non-Cont. Law, 854:
"A child too young to be controlled by reason therefore not improperly led by its instincts receives from the law the protection which its special nature requires. For example, a man who leaves on his ground, open to the highway or upon or beside any public place, a dangerous machine, likely to attract children, will be liable to one injured by playing with it, if he neglected precautions against such an accident."
See also 7 A. E. Enc. Law, 403.
The Court also cites with approval the following authorities to the same effect: Pekin v. McMahon, 154 Ill., 141,39 N.E., 484, 27 L.R.A., 206, 45 Am. St. Rep., 114;Biggs v. Wire Co., 60 Kan., 217, 56 P., 4, 44 L.R.A., 655; Price v. Water Co., 58 Kan., 551, 50 P., 450, 62 Am. St. Rep., 625; Cooley on Torts (2d Ed.), 718; 1 Thompson Neg., 303; Dobbins v. R. Co., 91 Tex., 60,41 S.W., 62, 38 L.R.A., 573, 66 Am. St. Rep., 856; Kopplekom v.Pipe Co., 16 Colo. App., 274, 64 P., 1047, 54 L.R.A., 284; Powers v. Harlow, 53 Mich., 507, 19 N.W., 257, 51 Am. Rep., 154; Keffe v. R. Co., 21 Minn., 207, 18 Am.Rep., 393.
In Sexton v. Noll Const. Co., 108 S.C. 516,95 S.E., 129, 131, the Court said:
"A new duty does not arise until he maintains upon his premises a dangerous instrumentality, which tends to attract the youthful instincts of children, to use it for their amusement. Where he has on his premises something that is both attractive and dangerous to children, he is bound to exercise ordinary care to prevent injury to them by coming in contact with it."
A very clear statement of the law is found in the case of Simonton v. Citizens', etc., Co., 28 Tex. Civ. App. 374,67 S.W. 530, 531: *Page 206
"Under the common law no duty is imposed upon the owner to use care to keep his property in such condition that persons going thereon without his invitation may not be injured, his only duty to persons thus entering upon his premises being to abstain from willfully injuring them. This rule of law applies to infants with the same force that it does to adults, but in certain classes of cases an invitation by the owner to enter upon his property will be implied by estoppel in favor of children from facts that would raise no such implication as to adult persons. * * * Ordinarily an invitation will not be implied unless the property is designed or used by the owner for public purposes, such as a hotel or store where a mercantile business is conducted, and the person entering upon the premises is carrying out a purpose or design which is to the common interest or advantage of the owner and himself. * * * But in the case of injury to children our Courts have gone much further, and have established the doctrine that an invitation may be implied by estoppel, even against the intention of the owner, if such owner maintains upon his premises, where children are likely to be, something which on account of its nature and surroundings, is especially and unusually calculated to attract, and does attract, them, and induce them to go upon his premises."
In Haithcock v. Columbia, 115 S.C. 29, 104 S.E., 335,336, it was held that the question at issue was "whether there was negligence on the part of the City of Columbia in maintaining on its premises a dangerous instrumentality calculated to attract the youthful instincts of the plaintiff, and whether he was guilty of negligence that contributed to his injury. * * * "
The Renno case, 120 S.C. 7, 112 S.E., 439, was distinctly decided upon the issue of the attractiveness of the pool of water to the boyish instinct.
The case of Hayes v. Power Co., 95 S.C. 230,78 S.E., 956, was distinctly decided upon the ground that the open *Page 207 window may have been found by the jury an attractive instrumentality to the child, in connection with the proximity of the charged wires which he was told would cause him to tingle and dance.
So with Tucker v. Mills, 95 S.C. 302, 78 S.E., 890.
In Pigford v. Cherokee Falls Mfg. Co., 124 S.C. 389,117 S.E., 419, 420, the decision was based upon the attractive theory: "* * * The issue of the defendant's negligence in maintaining a reservoir upon his premises, alluring to immature children, known to be dangerous and insufficiently protected against their depredations and consequent injury. * * *"
In Witte v. Stifel, 126 Mo., 295, 28 S.W. 891, 892, 47 Am. St. Rep., 668, the Court said, after citing cases:
"The cases cited are more favorable to the plaintiffs than any to which our attention has been called or that we have been able to find, but in all of them the object which caused the injury was a dangerous object left exposed, without guard or attendant, in a place of public or common resort for children, whose natural instincts prompted them to meddle and play with it. * * * It is only in case of attractivemachinery, or other objects similar in their effect, that children, when injured without fault or negligence on their part, are entitled to recover for personal injuries occasioned thereby. * * * and even then such right seems to be predicated of the fact that children are in the habit of resorting to such places for play, with the knowledge of those in charge of such object or machinery."
"Children, no less than adults, when they trespass upon the property of another, take the risk unless the circumstances bring the case within the principle of what is known as the Turntable Cases, where a dangerous instrumentality is maintained, with knowledge, actual or constructive, that it is alluring to children and endangers them. A wire 18 feet above the ground, which can only be reached as this wire was, cannot be said to fall within the exception to the general *Page 208 rule." Mayfield Water Light Co. v. Webb, 129 Ky., 395,111 S.W. 712, 713, 18 L.R.A. (N.S.), 179, 130 Am. St. Rep., 469.
In Riedel v. West Jersey S.R. Co. (C.C.A.), 177 F., 374, 378, 28 L.R.A. (N.S.), 98, 21 Ann. Cas., 746, the Court said:
"The present case, therefore, differs obviously from the cases referred to, the decisions in them being founded upon the maintenance of a dangerous appliance or object on the owner's premises which presented enticement and allurement to children, and to which they were in the habit of resorting, to the knowledge of the defendant. There was thus an implied invitation or license to the children to enter upon the premises, by reason of which they were divested of the character of trespassers, and there was imposed upon the defendants the duty of exercising reasonable care for their protection."
It appears undeniable from the complaint that the cause of action is based solely upon the effort of the plaintiff to bring his case within the principle of an attractive instrumentality. The complaint is loaded with such expressions as that the tower as constructed and maintained constituted "an attraction, temptation and invitation" to climb and ascend it; that the boy "led on by his childish instincts in a spirit of fun and play climbed up the said tower"; that the criss-crossings presented a "ladder-like appearance, attractive to children"; that the boy was "tempted and attracted to climb the same," and was "induced and enticed to climb"; that he was "tempted, invited and enticed to go upon the said tower and climb the same"; that he was "led on by childish instincts, was attracted to climb the same"; that the tower was "so constructed as to be inviting and of easy ascent"; that the boy was "enticed, invited, and tempted to play on and around the same and to climb the same"; and he was "attracted and induced to climb the same"; that he was "induced and enticed to climb the same," etc. *Page 209
In the printed brief of counsel for the respondent it is declared:
"The alleged liability of the appellant was based upon what is designated as the `attractive nuisance' doctrine, and it was charged in support of this theory with the negligent and willful maintenance of a ladder-type tower, in an unprotected and unguarded condition, of such form and design as to be attractive to children, as the result of which the deceased child climbed the tower to a point at which he came in contact with the heavily-charged wire and received the fatal current of electricity."
It is clear therefore that the plaintiff's cause of action is based solely upon the attractive instrumentality doctrine, and hence, if there were no other objection to it, the charge complained of in the tenth exception should not have been given:
"Although the dangerous thing may not be what is termed an attractive nuisance — that is to say, may not have especial attraction for children by reason of their childish instincts — yet where it is so left exposed that they are likely to come in contact with it, and where their coming in contact with it is obviously dangerous to them; the person so exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them, from its being so exposed, and is bound to take reasonable pains to guard it, so as to prevent injury to them."
In addition to this ground of error, it seems clear that the charge was in direct antagonism to the principle declared in the foregoing quotations, that an infant trespasser orlicensee can only recover upon the theory of an attractiveinstrumentality.
Considering then the doctrine of "attractive instrumentality" and its application to the facts of this case:
It has been recognized and clearly defined, with distinct limitations beginning in this country with the case of SiouxCity P.R. Co. v. Stout, 17 Wall., 657, 21 L.Ed., 745, *Page 210 in 1873, and threading its way through a great number of cases, some approving, others not, and many approving but declining to extend it beyond practically the conditions shown to have existed in that case. This Court has, properly I think, approved the principles announced in that case in numerous cases, cited in the leading opinion herein.
From it I think that the following principles may be deduced:
1. The fact that the child may have been technically a trespasser or licensee, at the time of its injury, does not relieve the proprietor of liability if the elements of the doctrine of attractive instrumentality be shown to have existed.
2. The instrumentality, in which I mean to include every form of injurious agency, must be shown to have been dangerous.
3. It must be shown to have been alluring to children, appealing to their childish instincts of curiosity, amusement, adventure or other.
4. It must be shown to have been in a place open, accessible to, and frequented by children.
5. That the danger was not appreciated by children.
6. That the proprietor had knowledge actual and imputed of the habit of children to be on, in, or about the instrumentality.
7. That the injury might reasonably have been anticipated or foreseen had the proprietor exercised the care and forethought of a reasonably prudent person.
8. That the proprietor with knowledge, actual or imputed, of these circumstances, did not exercise ordinary care to prevent the injury.
The undisputed facts of the case are these:
The defendant was engaged in a legitimate enterprise, the transmission of electric power; it could only be accomplished by means of wires strung upon poles, either metal or wood; the company, as it had the right to do, and which *Page 211 common experience teaches was safer for the public generally, more stable and economical, erected towers of steel, set in cement; the towers were 35 or 40 feet high, and the wires were strung upon cross-pieces very near the top of the tower, fully 30 feet from the base; perfectly safe to the public except in case of accidental breaking of and allowing the wires to sag to the ground; it was impossible for the current to escape and injure any one near the tower or wires unless the tower was climbed and contact thereby with the charged wires made.
It does not appear to the contrary, and I assume it to be a fact that the company had simply as easement of right-of-way, which naturally would confine its dominion to the land actually occupied by the towers, with the right of ingress and egress for the purpose of maintaining its lines; it would have no right to interfere with the use of the premises by the owner or the public as a playground.
The construction of the tower is sufficiently described in the opinion of Mr. Justice Blease. I may emphasize the fact that the base of it was a concrete pillar in which the legs of the tower were incased and could not have been more than two feet square; the three legs of the tower were about that distance apart and gradually approached each other until they united at the top.
The frequency and manner of use of the premises near the tower as a playground are also sufficiently and dramatically described with a touch of pathos.
It appears that some of the children were in the habit of climbing the tower, using the criss-crossed strips as the rungs of a ladder. The three girls who testified to such use ascended only a part of the way and were forced to come down by fear and swimming of the head; not a single instance is given of any child attempting to climb to the top of the tower where the danger was, and these girls showed evidently that they knew it was wrong to go even as far as they went. The tower had been erected for years and the *Page 212 only instance of a boy coming within the zone of danger was the boy who was killed. If any one of the girls had fallen in the attempt to climb the tower, it would have been a strain upon the doctrine to hold the defendant liable for the effect of the fall, even if the other essential elements had been shown.
It is true that some of the witnesses testified that it was easier for a child to use the trellis work of the tower as a ladder than for a grown man. That was mere matter of opinion, and in view of the fact that the strips were bolted to the uprights at an angle of 30 degrees, forming a sharp V, it is incredible that a smaller foot would find the ascent easier than a larger one.
I do not find, after reading the entire testimony, a particle of evidence that the company knew, or had reason to know, of the habit of even the girls to climb the tower; certainly there is none of a habit to climb up within the danger zone.
It is argued in the leading opinion, which concedes that there is no positive evidence that any agent, servant, or employee of the company had direct notice that children were accustomed to congregate and play about and around the tower and to climb thereon, that because the evidence that the premises were used as a playground was patent, the jury had enough to find not only that, but that the tower was used is climbing as a pastime. Certainly the frolicking of the children among the gullies and small trees, or the presence of "little footprints that lightly pressed the ground," could hardly support an inference of something entirely different.
I think, too, that there was not a particle of evidence tending to charge the defendant with a reasonable anticipation that any child would undertake what the boy undertook, to climb to the top of the tower. Even if the company knew that the premises, over which it had no control, were used as a playground, and that girls attempted to climb the tower a part of the way, it could not be inferred that some adventurous *Page 213 youth would attempt the almost impossible feat for a child, of climbing to the top of the tower.
It may be true, as doubtless it is, that quite a large number of children in the neighborhood used the premises around the tower as a playground, among the gullies and bushes; that they made frog houses and mud pies and rode the tree horses; the tower did not interfere with their innocent amusements; no harm ever came to them; such use was in no sense notice to the defendant that any of them would attempt the most improbable form of amusement of climbing the tower.
It is significant that the boy Hart was not allured to the premises by the sight of the tower. It appears that he and two other boys went there to play among the gullies and bushes and were harnessed up "playing horse." The two companions, Owensby and Reynolds (or Randall), were not put upon the stand; they, so far as the evidence shows, were the only children at play on the premises, and it is impossible to say what called the Hart boy from his horse play to the tower; certainly it does not appear that he and the other boys were playing "back out on the tower. He appears to have been seized by a sudden impulse, without purpose, to climb the tower.
The case of New York, N.H. H.R. Co. v. Fruchter,260 U.S. 141, 43 S.Ct., 38, 39, 67 L.Ed., 173, appears to me conclusive of the question at issue. In that case it appears that the track of the railroad company at a certain point in the City of New York was in a cut, and that a street, perpendicular to the railroad, crossed it upon a bridge or viaduct, there being a clearance of twenty-three feet from the track to the lowest girder of the bridge; the bridge was supported by steel piers with strengthening lattice work; at one end of the bridge the railroad company had erected two steel towers the bases of which were the upper girders of the bridge; the towers were likewise strengthened with lattice work similar to those of the piers; about six feet from the bases of the steel towers, cross-arms were affixed upon which *Page 214 wires carrying electric currents were strung. The boy, eight years old, climbed from the railroad track by means of the lattice work on the piers to the bed of the bridge in quest of a bird nest; seeing a pigeon on one of the overhead wires near the steel tower, he climbed up the steel tower to the level of the wires and reached for the bird; it flew away; his hand touched the wire, and severe injuries resulted. It appeared that boys often climbed the piers of the bridge and some reached the steel towers; they were frequently chased away by policemen and the railroad guard. The case was tried in the District Court and the plaintiff had a verdict; upon writ of error the judgment was affirmed by the Circuit Court of Appeals, 271 F., 419. Upon certiorari the Supreme Court of the United States reversed the lower Courts and directed judgment in favor of the defendant.
The Court said:
"The Court below accepted the theory that the jury could have found the structure was well known to be both dangerous and attractive to children, and that failure to supply proper guards, human or mechanical, constituted negligence within the doctrine of Railroad Co. v. Stout, 17 Wall., 657,21 L.Ed., 745, and Union Pacific Ry. Co. v. McDonald,152 U.S. 262, 14 S.Ct., 619, 38 L.Ed., 434.
"In United Zinc Chemical Co. v. Britt, 258 U.S. 268,275, 42 S.Ct., 299, 66 L.Ed., 615, 36 A.L.R., 28. * * * we pointed out the theory upon which liability may exist for injuries suffered by an infant, although the circumstances would give no cause of action to an adult: `Infants have no greater right to go upon other people's land than adults, and the mere fact that they are infants imposes no duty upon landowners to expect them and to prepare for their safety. On the other hand, the duty of one who invites another upon his land not to lead him into a trap is well settled, and while it is very plain that temptation is not invitation, it may be held that knowingly to establish and expose, unfenced, to children of an age when they follow a bait *Page 215 as mechanically as a fish, something that is certain to attract them, has the legal effect of an invitation to them although not to an adult. * * * There can be no general duty on the part of a landowner to keep his land safe for children, or even free from hidden dangers, if he has not directly or by implication invited or licensed them to come there.'
"Considering the peculiar circumstances of the present cause, it is clear that if the plaintiff had been an adult he could not recover; and we are unable to find any sufficient evidence from which the jury could have properly concluded that the railroad company either directly or by implication invited or licensed him to climb upon the strut to a point from which he could touch the bare wire 30 feet above the street (track?). The motion for an instructed verdict should have been granted."
In Sioux City P.R. Co. v. Stout, 17 Wall., 657, 662,21 L.Ed., 745, the pioneer turntable case, the Court said: `"* * * When it was proved to the jury that several boys from the hamlet were at play there on this occasion, and that they had been at play upon the turntable on other occasions, and within the observation and with the knowledge of the employees of the defendant, the jury were justified in believing that children would probably resort to it, and that the defendant should have anticipated that such would be the case."
The case of United Zinc Co. v. Britt, 258 U.S. 268,42 S.Ct., 299, 66 L.Ed., 615, 36 A.L.R., 28, presents in its facts a much stronger case for the plaintiff than the case at bar. In it the facts were these: The zinc company had formerly established a plant for the making of sulphuric acid; it abandoned the plant and tore down the buildings but left a basement and cellar in which water had accumulated; the water was clear in appearance but was in fact dangerously poisoned by sulphuric acid and zinc sulphate. The father of two children had been traveling with them and had encamped *Page 216 some distance from the place. A traveled way passed within 100 to 120 feet of it. The children, eight and eleven years of age, went upon the premises and into the water, where they were both poisoned and died. At the trial the Judge instructed the jury that if the water looked clear but was in fact poisonous, and thus the children were allured to it, the company was liable. A verdict for the plaintiff was rendered, which was affirmed by the Circuit Court of Appeals. 264 F., 785. The judgments were reversed by the Supreme Court of the United States, holding:
"Infants have no greater right to go upon other people's land than adults, and the mere fact that they are infants imposes no duty upon landowners to expect them and to prepare for their safety. On the other hand the duty of one who invites another upon his land not to lead him into a trap is well settled, and while it is very plain that temptation is not invitation, it may be held that knowingly to establish and expose, unfenced, to children of an age when they follow a bait as mechanically as a fish, something that is certain to attract them, has the legal effect of an invitation to them although not to an adult. But the principle if accepted must be very cautiously applied. * * * In the case at bar it is at least doubtful whether the water could be seen from any place where the children lawfully were and there is no evidence that it was what led them to enter the land. But that is necessary to start the supposed duty. There can be no general duty on the part of a landowner to keep his land safe for children, or even free from hidden dangers, if he has not directly or by implication invited or licensed them to come there. * * * Union Pacific Ry. Co. v.McDonald, 152 U.S. 262, 14 S.Ct., 619, 38 L.Ed., 434, is less in point. There a boy was burned by falling into burning coal slack close by the side of a path on which he was running homeward from other boys who had frightened him. It hardly appears that he was a trespasser and the path *Page 217 suggests an invitation; at all events boys habitually resorted to the place where he was. Also the defendant was under a statutory duty to fence the place sufficiently to keep out cattle. The decision is very far from establishing that the petitioner is liable for poisoned water not bordering a road, not shown to have been the inducement that led the children to trespass, if in any event the law would deem it sufficient to excuse their going there, and not shown to have been the indirect inducement because known to the children to be frequented by others. It is suggested that the roads across the place were invitations. A road is not an invitation to leave it elsewhere than at its end."
The case of Graves v. Washington Water Power Co.,44 Wn., 675, 87 P., 956, 958, 11 L.R.A. (N.S.), 452, is strikingly parallel with that at bar. The facts were that a bridge 100 feet above the water of a stream was supported by steel piers with criss-crossed strips, and about 30 feet up them ran a heavily-charged wire; the plaintiff, a boy of about fifteen years, attempted to climb the pier, using the criss-crossed slats, set at an angle, as a ladder. Pigeons were in the habit of nesting about the bridge, and boys sometimes climbed the piers to catch them or to find their nests, and sometimes as a matter of sport in playing such games as "follow your leader." The evidence did not show that the defendant had actual knowledge of boys climbing the piers, or that there was such an amount of climbing the piers near the wires as would impute knowledge thereof to it. The boy had climbed up 30 feet or more when he came in contact with the charged wire and received severe injuries. The connecting plates or strips of steel with sharp edges formed an angle, rather than being attached at right angle as in the case with the rungs of an ordinary ladder. The Court said:
"The lattice work upon the sides of these piers was not intended to constitute ladders or furnish means of access to or from the top of the bridge. The public was not invited *Page 218 nor expected to use such lattice work for such a purpose. No one, other than an employee or agent of the city intrusted with some duty in connection with the inspection, supervision, care, or repairing of said bridge, would have any authority to climb up or down said lattice work. This being true, it follows that respondent as one of the general public had no authority justifying his presence at the place where he was injured."
In denying the plaintiff's right to recovery, the Court said:
"As a matter of law, it may be said that a person of ordinary care and prudence, in the operation of an agency so dangerous as electricity, would and should be exceedingly careful and so arrange the means of handling and transmitting this powerful and mysterious element as to protect from harm any person or persons whom he might reasonably expect to be in a position to receive harm therefrom. But to say that the owner or operator of an electric plant should foresee and anticipate the presence of children or others in places where the ordinarily prudent, careful, and foreseeing person would not expect or deem it likely for them to be, would impose a burden and responsibility for which there is no justification in law. We do not think it can be said that this appellant should have anticipated that boys would climb up this almost perpendicular pier and from it reach over and take hold of the electric wires strung upon its poles 30 or more feet above the ground, or that the city's watchmen and other servants there stationed would permit such an occurrence. If the company's responsibility extended this far, it would be difficult to say where a limit could be fixed. In this State we see electric wires stretched on poles through our towns and cities, and along highways, through farms, orchards, and forests in the country. Can it be held that companies operating these wires must keep them out of reaching distance of every high tree, building, fence, wall, *Page 219 pole or other place of elevation into or upon which a boy may possibly be allured by birds' nests or other attractions?"
In Brown v. American Mfg. Co., 209 App. Div.., 621,205 N YS., 331, it was held that a boy who climbed a 30-foot tower supporting high-tension electric wires on defendant's own land, in the yard of tenement houses in which children played, though a licensee on the premises, was a trespasser and defendant was not liable for his death resulting from a contact with wires, where defendant had no reasonable ground to anticipate that children would attempt to climb the tower.
In Mayfield Water Light Co. v. Webb, 129 Ky., 395,111 S.W. 712, 713, 18 L.R.A. (N.S.), 179, 130 Am. St. Rep., 469, the Court said:
"Here the wire was 18 feet above the street. It could only be reached by a person climbing the electric light pole or walking up the guy wire of the telephone company. In all the cases where a liability has been imposed for what is known as an attractive nuisance to children, the nuisance has been placed within their reach. We know of no case where this has been applied to things put 18 feet above the ground, which may only be reached by climbing a pole or walking up a wire. Such structures are not an invitation to children to use them. * * * As long as electric light wires are not put under ground, they must be put upon poles, and, where they are placed above the street as high as 18 feet, the company should not be required to anticipate that children will climb up to the wires and get hurt. * * * Such a wire is not a dangerous instrumentality, attractive or alluring to children within the meaning of the Turntablecases. * * *"
In Parker v. Charlotte Electric R. Co. (1915)169 N.C. 68, 85 S.E., 33, where defendant's feed wire was placed about twelve inches below and underneath a bridge, and plaintiff, while playing upon the bridge with other boys, got down on his knees on the floor of the bridge, reached his *Page 220 hand between the lower railing and floor, and touched the feed wire, receiving the injury complained of, it was held that defendant had exercised every possible care in the disposition of its wires, and had no reason to expect that a thirteen-year-old boy would lie down on the bridge and endeavor to touch them; and as such action could not reasonably have been foreseen, defendant was not liable.
In Stansfield v. Chesapeake, etc., Co., 123 Md., 120,91 A., 149, 151, 52 L.R.A. (N.S.), 1170, the Court, in denying recovery to an adult who had climbed a pole by the spikes that were driven into it for the use of employees, concluded the opinion by saying: "Where * * * those engaged in the distribution of electric current have placed their wires above and beyond the sphere of peril to the public and to the occupants of neighboring premises, it would be subjecting them to an unduly strict responsibility to require them to provide against the possibility that their own appliances might be utilized by strangers as a means of access to the conditions which prove to be injurious."
In the case of Simonton v. Citizens, etc., Co.,28 Tex. Civ. App. 374, 67 S.W. 530, 532, the electric company maintained poles along a highway into which were driven spikes from a point near the ground, to allow ascent for placing and repairing wires, such being the ordinary custom; plaintiff, a boy of seven years, climbed the pole, using the spikes as a ladder; he lost his balance near the top of the pole, fell, and was seriously injured. The Court held that the instrumentality of the defendant, so equipped, was not an invitation to children to use it so as to make the company liable for the injury. The Court said:
"The facts pleaded do not show that the pole which is alleged to have been negligently maintained by the defendant was specially or unusually attractive, or that such pole was not constructed and maintained in the manner in which poles of this character are ordinarily constructed throughout the country. * * * In all of the Turntable cases *Page 221 the invitation is implied from the fact that by reason of the turntable being left unlocked, so that it could be, and was, used by children as a plaything, it was especially and unusually attractive. * * * We believe that it would be unwise to extend the doctrine of the Turntable cases to cases of this character. It would seriously retard the material progress and cripple the business interests of the country if persons owning and operating public utilities which, from their very nature, require the use of structures and appliances placed in proximity to public highways, should be forbidden to use or maintain any structure or appliance of a kind calculated to attract and allure children to attempt their use as playthings, and which when so used, becomes dangerous. As said by Judge Gaines * * * we believe that the doctrine upon which the Turntable cases have been ustained goes to the limit of the law, and sound public policy forbids that it be further extended."
I do not think that there is any evidence in the case that warranted the submission of an award of punitive damages.
For these reasons I think:
1. That the defendant's motion for a directed verdict should have been granted.
2. If not, that there was reversible error in charging as complained of in the tenth exception.
3. In any event, that there should be an order for a new trial nisi requiring the plaintiff to remit the verdict awarding punitive damages.