United States Court of Claims (concurring in the result) :
I cannot agree, in the circumstances revealed by the evidence' in this case, that the plaintiff was guilty of such contributory negligence as can be legally treated as the proximate cause of the injury to the plaintiff.
Here was a child between 7 and 8 years of age, largely inexperienced, filled with curiosity, to whom the world was filled with hidden secrets, all of which he would like to explore and if possible see with his own eyes and touch with his own hands.
The authorized employees of the defendant had installed on Government property a facility carrying a high-voltage current of electricity, capable of causing death to anyone coming in contact with it. It was built on the flattened surface near the top of a slope where erosion might well occur. Thé soil was of such a character as to be subject to erosion. A chain link fence 6 feet high, with an additional foot consisting of 3 strands of barbed wire flaring out at an angle of 45 degrees at the top, had been built as an enclosure for the transformer. A layer of broken or small rocks had been placed underneath the fence. The entrance gate was securely locked.
It was well known that numerous children lived nearby who used the general premises as a playground and who knew the facility was there. They had used this area before the transformer substation was installed. In fact, the plaintiff, Henry Taylor, and a younger playmate had more than once climbed over the 7-foot fence.
No one was around to interfere with the children climbing the fence nor their climbing of the scaffold after entrance.
The plaintiff was attracted by the hum. He did not know what caused it, and he was curious.
On the day of the injury, the plaintiff and his playmate were looking for an easier way of entering the enclosure without climbing the fence. He removed, or had theretofore removed, a few handfuls of small broken rocks from underneath the fence. The evidence is conflicting as to whether the hole had been created entirely by the removal of the rocks or whether it had been caused by water running down the slope and a few rocks removed to make access easier. *491Henry Taylor slid under the fence, and climbed the scaffold. Coming in contact with the electric current, he was badly burned. His injury is permanent and he can never again be fully normal. He has had several operations and through the coming years must undergo 14 more operations after he becomes 18 years of age.
The trial court determined that plaintiff-appellant was guilty of contributory negligence and for that reason may not recover. I do not think the evidence in this case is sufficient to support a finding of contributory negligence. True, his father, who was stationed in Greenland, had warned him of the danger before he left nearly 4 months before the injury. But what 7%-year-old child has not been warned of various dangers many times? A child is filled with curiosity and wonder. That is the primary way he learns and thus becomes educated in the natural laws of the universe. The earth, the sea, and the sky are filled with mysteries which are revealed to him not so much from teaching but by exploration and experience. A small child is told the fire will burn, but when he touches it he knows what is meant.
The Virginia law treats a boy of 7 to 14 years as being incapable of contributory negligence unless the opposite party or the circumstances show special capability or knowledge of the danger involved. Plaintiff was near the bottom of this age bracket.
It is doubtful that Henry Taylor knows much about electricity. Who does? As a matter of fact, we only know some things it will do, but the why baffles us.
I cannot believe that this case should go away on any finding of contributory negligence of a 7-year-old plaintiff to whom the miracles of the earth are just unfolding.
On the other issue in the case I must concur.
While the evidence is conflicting on the question of whether those in charge of the substation used the degree of care commensurate with the dangers involved in handling of a dangerous facility, the trial judge, who heard the witnesses and saw them face-to-face, has found after two trials that the defendant used the necessary degree of care in the circumstances. He found that the enclosure fence was of the same type and kind used by purveyors of electricity in that vicinity, that the gate was kept securely locked and other appropriate steps were taken. There is substantial evidence to support his findings of fact -and conclusions on this phase of the case.
I therefore concur in the result.
Sitting by designation.