Nichol v. Bell Telephone Co.

Dissenting Opinion by

Mr. Justice Simpson :

It would seem as if the differing conclusions in this case ought to be resolved by a determination of what really is the question at issue. It is not whether the wire strung by defendant along the fence between the two properties, was or was not innocuous, or whether its original location was dangerous, or whether any witness, lay or expert, so testified, for no injury occurred by reason either of condition or location thereof; nor whether plaintiff might have tripped over something else, innocently and properly placed, for the evidence shows hé did not; nor whether the wire formed “a loop in the sense of a noose so as to imprison the boy’s foot” (by which is meant, I presume, a running noose), for the evidence showed it sagged, and with the fence as a background formed a hanging loop in which the boy’s foot could be and was caught; nor whether a judge would find it less difficult to see how he could have tripped on this loop rather than on the top of the fence, for the evidence shows the fall was due solely to the loop; nor whether the accident “happened here because the boy’s hand missed or slipped from the clothesline” which extended from the clothespole at the fence to the porch of the adjoining house, though the evidence shows the catching of the foot in the wire “pulled his hand off the rope” ; but it is whether a jury might have found defendant could and should have avoided inflicting the injury by not permitting the wire to sag and remain for months in the form of the loop in which plaintiff’s foot was caught, when it knew the “children in the neighborhood,” of whom plaintiff was one, were in the habit of going “from *472one home to the other,” as admittedly they had the right to do by climbing the fence. In determining whether or not such a duty existed and was breached, we must accept the following evidence favorable to plaintiffs as absolutely true:

Two adjoining neighbors had small children who had permission so to do and were in the habit of climbing over the iron fence separating the yards of two properties, so that they might play together instead of separately. One of the neighbors desired a telephone installed in her house, and defendant was requested to place it there. When its employees came for this purpose, instead of running the telephone wire overhead in the usual way, they ran it along the division fence, opposite the upper cross bar thereof, though then informed of the habit of the children as above set forth, and though requested “to put it where children would not be playing.” Subsequently a portion of it became loose and sagged in the form of a loop as above described. It remained this way for some months, whereby defendant had constructive notice of the fact, and its employee, when he came to use the telephone in the house, was asked “repeatedly to have the wire adjusted,” thereby receiving express notice also; but nothing was done. On the day of the accident, plaintiff, who was between four and five years old, was climbing over the fence as usual, when his foot caught in the loop in the manner as above stated, and he was thrown to the ground and seriously hurt.

The majority opinion admits plaintiff was not a trespasser, had a right to climb the fence, and was not guilty of contributory negligence; and it seems also to concede defendant could be held liable if reasonably it should have known the wire would become dangerous to children, if allowed to hang down and assume a form in which the foot might naturally be caught. The exact difference between us seems to be that the majority do not see how the foot of a child climbing down the fence would probably catch in the loop; whereas I cannot *473understand how any one who has seen a child climb down a fence, and has seen his little foot groping for the safe resting place of the lower rail, can doubt for a moment that it would naturally catch on this sagging wire, or in the loop formed by it and the fence, and thereby just such an accident as here depicted would result. This would not be altered by the fact that the wire hung close to the fence, for so would the child’s foot be close thereto in reaching down. I concede' that an “owner is not required to anticipate and guard against dangers which might result from the improper use of objects which are safe in themselves and safe for the use for which they are designed”; but here, as the majority admits, there was no “improper use” of the fence, and the lack of safety grows out of allowing an object which is safe in itself to become unsafe and to remain so for months. So, assuming that as “a general rule......an object [which] is not obviously or inherently dangerous, and has been in daily use, and has proved uniformly adequate, safe and convenient,......may be further continued without the imputation of negligence, although it might have been made safer at slight expense,” this conclusion has no applicability here, and will not excuse the failure to incur the “slight expense” which would have saved plaintiff, for there was no evidence or presumption of the “uniformly......safe” condition of this wire after it sagged; but, on the contrary, there was evidence, and also, in my judgment, a violent presumption, founded on common experience, that it was highly dangerous to children climbing the fence; and, in any aspect of the matter, the question was one for a jury to decide. If also we assume defendant only owed the duty of ordinary care to safeguard the children, of tender years who were in the habit of climbing the fence, none the less it was peculiarly within the province of a jury, in such cases, to determine whether or not it exercised that care: Phila. & Reading R. R. Co. v. Spearen, 47 Pa. 300, 304; Piepke v. Phila. & Reading R. R. Co., 242 Pa. 321.

*474I would reverse the judgment and submit the case to a jury to determine (1) whether or not defendant had notice of the fact that the wire had sagged and hung in the form of a loop, and ample time within which to repair it, (2) whether or not it should have known this condition would probably cause injury to plaintiff when he rightfully climbed the fence, and (3) whether or not he was injured as a result of the failure to repair; and, since there wag no evidence that the father, who was a coplaintiff, even knew the wire hung in the form of a loop, his rights should also have been submitted to .that tribunal.