Meyer v. Menominee & Marinette Light & Traction Co.

The only question presented on this appeal is whether there is sufficient evidence to support the verdict. It was established upon the trial that the Hamilton and Merry-man Company and the Republic Lumber Company, its lessee, had for many years carried on á sawmill and lumber manufacturing business on what is known as Hamilton and Merry-man Company Island,' in the city of Marinette; that tram*283ways were constructed leading from the sawmill to distant portions of the lumber yard upon which lumber was hauled and placed in piles adjacent to said tramways; that said tramways were from thirteen- to fourteen feet high; that the lumber piles were from twenty-four to twenty-six feet high; that the lumber pile in question was erected one year before the death of Francis Meyer and was twenty-four feet six inches high, and that lumber had been piled to the height of about twenty-four feet six inches at this point for some ten years previous to the death of said Meyer; that electric light wires of defendant had been strung upon poles in the lumber yard for nine or ten years prior to the accident; that the wires crossing this lumber pile were attached to a pole eighty-eight feet east of the pile thirty-six feet above the ground, and to a pole eighty-one feet west of the pile twenty-three feet above the ground, making a span of 169 feet, and the wires were so loose and sagged as to be only one foot nine inches above the top of the lumber pile. There was also credible evidence that the wires were very slack and should have been tighter, that the span of 169 feet between the poles allowed a greater sag than is ordinarily and customarily allowed in stretching electric wires of that character, and that the insulation was worn or rotted off from the wires where they passed over the lumber pile in question. The evidence further shows that a great many children had been in and about this lumber yard for many years before the accident, and that about fifty children ranging in ages from six to fifteen years lived with their parents in and about this lumber yard at the time of the death of said Francis Meyer, and that such children were accustomed to play about and upon the tramways and lumber piles, including the pile in question; that deceased lived with his parents about ninety feet from the lumber pile in question; that a plank road some sixteen feet wide ran through a portion of the leased premises and was used by the lumber company in conveying lumber from its mill, and the lumber was piled on *284either side of said road; that the two wires in question were about twenty-eight inches apart and each carried 2,300 voltage; that this plank road, while not a duly laid out street, was traveled by a great many people aside from the employees of the lumber company, and the poles and wires were erected along the south side of this road; that the lumber pile in question was immediately adjacent to this road and easy of access by children, there being steps on the side of the pile by boards protruding close to the plank road and extending to the top of the pile; that defendant was notified and warned as to the condition of the wires and poles in September, 1909, the fall before the death of Francis Meyer, which death occurred in May,' 1910.

The main contention of counsel for appellant, as we understand it, is that the defendant owed deceased no duty, he being a mere trespasser, and further that the element of reasonable anticipation necessary to m'ake a case of actionable negligence was wanting, hence there could be no recovery. The deceased was on top of the lumber pile, took hold of the wires, one in each hand, and was instantly killed. Counsel for appellant say they have found no case “where recovery was had by reason of the taking hold of electric wires.” Lomoe v. Superior W., L. & P. Co. 147 Wis. 5, 132 N. W. 623, is directly against appellant upon this proposition.

Counsel for appellant rely mainly upon adjudications from foreign jurisdictions. While it may be difficult to reconcile all decisions upon the subject, the confusion, or seeming confusion, results more from failure to fully appreciate the distinction upon facts than from any conflict in propositions of law upon the same state of facts. This we think will appear obvious from an examination of the cases cited by appellant from other jurisdictions. Oases may be found where one cannot recover for injuries sustained while trespassing, while others may be found holding that the mere fact that plaintiff was trespassing on the defendant’s property when injured will *285not in all cases bar recovery. So, too, it bas been held that a bare licensee or invitee may recover for injuries sustained while on the defendant’s premises caused by the defendant’s negligence. In Busse v. Rogers, 120 Wis. 443, 98 N. W. 219, plaintiff, a child, was injured while playing upon a lumber pile situate on the highway adjacent to defendant’s premises, yet it was held that recovery could be had for the injuries sustained through the negligence of the defendant. See, also, Connell v. Keokuk E. R. & P. Co. 131 Iowa, 622, 109 N. W. 117. But whether deceased in the instant case was a bare licensee or invitee when upon the lumber pile, if defendant knew or ought to have known that boys of his age were.accustomed to be there, it was chargeable with due care in the management of its poles, wires, and current so as to protect children and others who might be expected to be there from injury, and was bound to anticipate that some injury might result to some one in consequence of the location and condition of the wires. Nagle v. Hake, 123 Wis. 256, 101 N. W. 409; Wilbert v. Sheboygan L., P. & R. Co. 129 Wis. 1, 106 N. W. 1058; Lomoe v. Superior W., L. &. P. Co., supra; Bright v. Barnett & R. Co. 88 Wis. 299, 60 N. W. 418; Burnett v. Ft. Worth L. & P. Co. (Tex. Civ. App.) 117 S. W. 175; Temple v. McComb City E. L. & P. Co. 89 Miss. 1, 42 South. 874, 11 L. R. A. n. s. 449; Powers v. Harlow, 53 Mich. 507, 19 N. W. 257; Connell v. Keokuk E. R. & P. Co. 131 Iowa, 622, 109 N. W. 177; Daltry v. Media E. L., H. & P. Co. 208 Pa. St. 403, 57 Atl. 838; Ambroz v. Cedar Rapids E. L. & P. Co. 131 Iowa, 336, 108 N. W. 540; Braun v. Buffalo G. E. Co. 200 N. Y. 484, 94 N. E. 209; Quinn v. Delaware & A. T. & T. Co. 72 N. J. Law, 276, 62 Atl. 412, 3 L. R. A. n. s. 988.

In the case at bar the evidence was ample to warrant the jury in finding that for a long time before the accident the defendant knew, or ought to have known, that children were likely to be upon the lumber pile and be injured by contact with the wires, and that defendant was guilty of negligence in *286tbe use of its wires at tbe time and place of tbe death of tbe deceased. There is also sufficient evidence to entitle tbe jury to find that neither tbe deceased nor bis parents were guilty of contributory negligence. In many of the cases cited by appellant’s counsel tbe danger was not reasonably to be apprehended, and most if not 'all of them are readily distinguishable from tbe case at bar. It would serve no useful purpose to discuss them. Perhaps one of the strongest cases cited in support of appellant’s contention is Cumberland T. & T. Co. v. Martin, 116 Ky. 554, 76 S. W. 394, 63 L. R. A. 469, decided in 1903; and this case is out of harmony with a later decision of the same court, Rodgers’ Adrn’r v. Union L., H. & P. Co. (Ky.) 123 S. W. 293, decided in 1909.

There are no exceptions to tbe charge or objection to tbe special verdict, and no request was made for further findings. We think tbe judgment of tbe court below is right and should be affirmed.

By the Court. — Tbe judgment is affirmed.