(dissenting).
This is a suit for damages on behalf of a little boy who sustained the personal injuries complained of when he was seven years and four months old. It appears that the defendant power company maintained a transformer station located by itself upon a piece of prairie within the limits of Devils Lake, 1ST. D., operating most of the time with nobody around it. Photographs of the plant are in the record, and detailed description is unnecessary, further than to say it presents to the layman’s eye the same general appearance as innumerable other such stations maintained for the same purpose throughout the country. Currents of electricity ranging from as low as 2,300 volts up to 40,000 volts were continuously present while the plant was in operation; not accessible to be touched, however, in any part of the structure lower than six and one-half or nine feet above the ground. Above that height many of the wires, if touched, would give a person an electric shock. The substation was fenced about with a practically unscalable wire mesh fence; access being had by a gate about eight feet wide and seven feet high, which was kept locked except when some kind of work had to be done at the transformer station. There were paths and trails leading by the plant and to the gate. There were signs upon the fence “Warning,” “Keep Out,” “Danger,” “3,000 Volts.”
The plaintiff, in company with a small boy older than himself, wandered across the prairie to the transformer plant, found the gate standing open, nobody around, and started to climb up on the structure. Plaintiff climbed higher than his companion and touched a live part. A short circuit was formed, accompanied by loud noise and disruption of the transmission of current, and the boy fell to the ground very badly injured. It is claimed on his behalf that the company was negligent in maintaining a dangerous construction, accessible to children, to which they would probably be attracted to their hurt, and without using reasonable precaution against injury to them. The trial court instructed for the defendant.
The eases are collected by this court in Hardy v. Missouri Pacific R. Co., 266 F. 860, 36 A. L. R. 1, and Silver King Coalition Mines Co. v. Lindseth, 19 F.(2d) 221; and in the majority opinion in this case.
An officer of the defendant company testified that the idea of a fence around transformer stations is to protect the company’s property, and the inference is plain that such properties are universally protected in some such way. Undoubtedly the warning signs “Keep Out,” “Danger,” “3,000 Volts” have something of the same purpose. On the other hand, these constructions that conduct, control, and transform currents of electricity, the most potent material agency of our times, have something of an attraction about them. The almost omnipotent element which they control is mysterious and the way they do it more so. The shining wires, ceramics, and metal parts attract the eye; and the assembled unit appears strange and, as a whole, it fascinates, intrigues, and excites curiosity. Reasonable men may honestly believe that, when it is abandoned in plain view upon an open prairie, children will probably be attracted to it and that it ought to be fenced away from them. I think so.
Some elements of a trap are suggested in the picture of this electricity transforming apparatus standing out alluringly on the open prairie with the unscalable wire fence around it and a gate left enticingly open. About the worst trap the malice of man devises against the hateful rat is a mesh of wires the rodent cannot get through, a lure in sight inside, and then a one-way opening. Without intention, if somebody forgets to close the gate in the fence around the transformers, there is something of similitude there so far as little boys are concerned. The record does not say so in this ease, but I think there is a sort of humming sound about the thing, something like a spinning'top.
Inasmuch as such transforming plants, universally, are fenced and placarded with signs, and inasmuch as we have at least this one instance of hurt to a child from leaving the gate open, it appears to me that the question whether it was negligence ought to be left to the jury. I give but little weight to what the little boy may say a year and a half later about “what evil genius put him” to the trespass. The jury may honestly believe, no matter what he says, that it was just *897ihe natural child in him. Nor to the fact that he had to climb a little to get hurt. They always fall out of the hayloft after they have climbed up into it. The ease ought to have been left to the jury.