The following opinion on rehearing was filed October 16, 1907. Former judgment of reversal adhered to:
Ames, C.A reargument has been heard in this case because a motion for a rehearing complained of certain misstatements of fact in, the former opinion, ante, p. 24. The opinion says that at the time of the happening of the injury in suit the defendant was not aware that its wire was without insulation at the point of contact therewith by the plaintiff’s son, and was at that time without knowledge of a previous injury therefrom to another boy. Both these statements are erroneous, but to what extent either is material may be a subject of debate. The second of them is better described as inaccurate than erroneous. It is not shown -what was the age of the boy formerly hurt, or how or in what circumstances the mishap took place, or .that it was such a one as would reasonably have been anticipated to recur. It was these matters upon which the mind of the writer of the opinion dwelt and to which he intended to give expression. There is, in our view, nothing in the nature of an electric light wire, placed eighteen or more inches outside a public way and defended by a substantal fence four feet high, which would lead a person to suppose that it is attractive to children of tender years as a plaything, and there is no evidence that the defendant knew or apprehended the wire in question to be so. Decided cases involving the right of children of tender years, or their parents or guardians, to recover for the consequences of negligent injuries fall into several classes. One of them is of those instances where the child is employed or is rightfully present in a place of danger, and does or omits an act or acts which in a person of mature years and ordinary experience and intelligence would be admittedly negligent, but for which conduct the child, on account of his supposed lack of these qualities, is either absolutely excused, as .a matter of law, or the degree of his incapacity or lack of discretion, and consequent irresponsibility, is left to the jury as a question of fact. The line of discrimination between these two *29subdivisions, in one of which the injury is disposed of as a matter of law and in the other of which it is treated as a question of fact, is extremely obscure and uncertain, if there can be said to be any such distinct line, and its discovery in every instance is largely dependent upon the peculiar circumstances of the particular case, and perhaps upon the unconscious bias and preconception of the court who decides it. But with neither of these subclasses or Avith their definition have Ave anything now to do. Another class of cases is composed of instances in which the party by or on behalf of whom the complaint is made was not an employee or rightfully present, and was one toward Avhom the person OAvning the instrument inflicting the injury OAved no duty, except to abstain from malicious or AAranton misconduct. Ordinarily, in such cases, if the person injured is an adult, the question of negligence or of contributory negligence, properly speaking, does not arise, the trespasser assumes the risk of his OAvn conduct, and no liability exists. But if the person injured is of immature years several questions arise, all of Avhich, to justify a recovery, must be ansAvered in the affirmative: First. Is the' machine or appliance of such a character as to be generally knoAvn, or was it or should it have been known to the proprietor, to be likely to inflict the same or a similar injury if unguardedly dealt Avith? Second. Was it of such a character that a reasonably prudent man Avould have known, or did the proprietor in fact know, that it Avas of such a character as to attract or induce young and indiscreet persons to employ it as a plaything, in mental obliviousness, or nearly so, to their peril in so doing, or at least of the nature or degree of such peril? Third. Was the party injured of the description last given? Obviously the last question may be solved in one of two Avays. Either discretion or indiscretion may be conclusively presumed, as a matter of laAv, from the age and experience of the child, or the age may be regarded as raising a presumption susceptible of rebuttal by evidence. And here, too, the authorities speak Avith no certain or un*30equivocal voice. We think it would render this opinion uselessly prolix to malee an attempt, necessarily fragmentary and imperfect, to cite and criticise the hundreds of reported decisions treating of this and allied questions. A comprehensive and masterly collection and review of them may he found in 1 Thompson, Commentaries on Law of Negligence, secs. 306-349. It seems sufficient to refer to that Avork and to state our oavu conclusions as to the principles deducible therefrom and as to their application to the pending case.
One inference from these decisions seems to be quite clear, and that is that the rules of law and practice relative to the Aveight, sufficiency and con elusiveness of evidence with respect to any of the foregoing questions, in cases in which they are to be decided upon evidence, are not different from such as are applicable to the trial of other cases. Noav, we are far from assuming, in the absence of proof, that an electric light Avire situated as was the wire of the defendant is an object of such a nature, or is so generally knoAvn to be such that the defendant must be presumed to have known it so to be, as to attract and induce children of tender years, or boys of ten or tAvelve years of age, to make use of it as a plaything. Neither do we think the evidence sufficient to prove that the defendant had such knoAvledge, or that the Avire Avas in fact of such a nature. So far as our own observation goes or legal literature discloses, the casualty complained of was singular and peculiar. The circumstances of the former mishap are unknoAvn, and it is a matter merely and Avholly of conjecture whether it occurred in circumstances like those in the pending case or otherAvise. And one SAvalloAV does not make a summer. . Even if the circumstances had been shown to be similar, the defendant might have been excused from apprehending, because of its knowledge of one such happening, that so singular and improbable an event would be repeated, and breve been permitted to rest securely upon its knowledge that its Avire, though the insulation was slightly impaired, Avas so guarded as to *31insure the safety of the traveling public and of all others who had a right or could be expected to meddle with it. But the circumstances of the accident themselves are such that all these questions may be resolved in favor of the plaintiff and still there can be no recovery. There were five boys in the party. One of them climbed upon the fence as if to touch the wire, but his companions “scared him down.” Then the plaintiff’s son climbed partly up the fence, apparently with like intent, and his companions “scared him down.” Then he told them to go on one side so as to be out of the way if he happened to fall, and then he climbed up again and touched the wire and received the shock and consequent injury of Avhich complaint is made. The evidence establishes several things Avithout contradiction and conclusively. Electricity is a mysterious power, but in many of its common manifestations is not and has not been for many years an unknown force. It is a matter of common knoAvledge that electric light and power wires carry poAverful and death dealing currents, and that they are the frequent cause of severe and fatal accidents, and that ordinary prudence requires all persons to avoid contact with them, especially if they are imperfectly or defectively insulated. The evidence establishes conclusively that the plaintiff’s son was an ordinarily bright and intelligent lad, tAvelve years of age, who lived in the city and kneAV that the wire carried a current sufficiently powerful to light the circuit of Avhich it was a part, and knew that, because of defective insulation or other defect at the place in question, such current was capable of being diverted into the body of any person coming in contact with it, and knew that shortly before that time it had been so diverted and had thereby caused a shock or injury more or less serious to the person of another boy. That he anticipated an injury of some degree to himself is undeniable, because what he deliberately sought Avas a “shock,” Avhich is nothing less than an injury. Whether he also anticipated its extent or degree is not known, but that he supposed that it would be of *32considerable severity is shown by his caution to the other boys to stand out of danger in case of his fall.
We know of no rule of law to the effect that, when one is negligent in a situation of danger the existence and nature of which he knows, he may nevertheless recover damages because the resulting injury is greater than he anticipated. We think the case falls precisely within the rule which governed the decision of Frauenthal v. Laclede Gas Light Co., 67 Mo. App. 1, in which the plaintiff’s son, a boy seventeen years old, purposely took hold of the end of a broken electric light wire, knowing the danger of so doing, but not its extent, and was killed. A recovery was denied and the deceased was held to have been guilty of contributory negligence as a matter of law. Irrespective therefore of the question of negligence of the defendant company, we are of opinion that the former judgment of this court should be adhered to because the negligence of the plaintiff’s son was a contributory, if not the sole, cause of the injury complained of. The case appears to us to be quite unlike-the turntable cases and others of like kind, where children are injured by machinery and appliances attractive as playthings and left unguarded in such situations as to invite them to gratify their impulses without knowledge or apprehension of danger, and it is only in accordance with the principle of those cases that the plaintiff seeks to recover.
We therefore recommend that the former decision of this court be adhered to.
Jackson, C., concurs.By the Court: For the reasons stated in' the foregoing opinion, the former decision of this court is adhered to.
Reversed.'