Concurring Opinion
Garrard, J.While I concur in the result reached by Judge Staton, I feel it necessary to separately state my reasons.
The initial question is whether NIPSCO owed a duty of care. It did, due to its transmission of electricity of dangerous voltage. Ft. Wayne & Northern Ind. Traction Co. v. Stark (1920), 74 Ind. App. 669, 127 N.E. 460. This same duty is that prescribed by statute. IC 1971, 22-8-1.1-1.
It is a duty owed to the general public where they are likely to come into contact with the transmission wires. The point of Jakob v. Gary Railways, Inc. (1947), 118 Ind. App. 13, 70 N.E. 2d 753, and NIPSCO V. Howard (1957), 127 Ind. App. 488, 139 N.E. 2d 558, is that where the facts disclose no more than a private purpose, as opposed to one common to the public, it cannot be said that the duty was violated. See, Miller v. Griesel (1974), 261 Ind. 604, 308 N.E. 2d 701.
However, Jakob should not be read as requiring that all members of the public must regularly be exposed to danger before a duty exists. Rather, it is sufficient that members of the public are exposed to danger in doing what they may be anticipated to do at a point or in a location where they may be expected to do it. Thus, it appears to me that the point of the common law duty recognized in Stark, supra, is that it extends, to wires passing through trees where the power company has reasonable grounds to anticipate public contact *32by children, because children are commonly known to climb trees.
In the present case, it is well to recall that if the duty existed at the point where Petroski came in contact with the wire, its breach is undisputed since the wire was not insulated and no other warning was given of its dangerous character.
The question thus becomes whether the duty extended to the wires passing through the particular tree in the manner testified to. Was this a place of potential public contact? Stated differently, was the evidence introduced by the plaintiff sufficient as a matter of law to enable the jury to decide that NIPSCO breached its duty by providing an uninsulated wire through the tree in question?
In Stark, the court answered this question affirmatively where the evidence showed the tree, which was small, was located at a place where numerous children were in the habit of congregating and playing. The evidence in the present case would support a finding that the tree in question was not only in such a location, but that children playing in the area had been in the habit of climbing it for a number of years. Thus, this question should have gone to the jury.
With respect to the questions of whether Petroski was guilty of contributory negligence or incurring the risk, I agree that while the jury might have so found, he was not barred as a matter of law.
Judge Staton correctly observes that the standard of reasonable care applicable to a minor is reasonable care for a child of like age, intelligence and experience under the same or similar circumstances.
Had the evidence shown no more than climbing the tree and the voluntary contact with the “hot” wire, I would have no difficulty in sustaining the trial court’s determination. There, however, was evidence that Petroski had been shown the lower wire was safe and expressly told by a friend that the top wire was also safe.
*33The jury might not credit some of this testimony. They might conclude that Petroski was negligent in any event. However, I am unable to conclude that no reasonable fourteen year old boy would ever voluntarily touch such a wire when there were no warnings of danger; when he was expressly told by a trusted friend that both wires were safe; and when it was demonstrated to him that, in fact, the lower wire was safe.
Finally, I agree that strict liability as stated in § 402A of the Restatement of Torts (2nd) and adopted in Indiana does not provide a ground for plaintiff’s recovery in this case.
I therefore concur in reversing the directed verdict upon the claim of negligence and remanding for a new trial.
Note. — Reported at 354 N.E. 736.