Opinion
Decided January 4, 1929.
Negligence — Infant injured by contact with worn and partially uninsulated wire — Licensee not exposed to hidden danger rendering property owner liable, when.
A manufacturing company, by the maintenance, upon its land, of a wire charged with electricity, for its ordinary and lawful purposes and incident to its use in carrying on its business, which wire was properly insulated and installed, and which, without the knowledge of the company, became worn and partially uninsulated, cannot properly be said to have exposed to a "hidden danger" one who, subsequent to such installation, became a licensee upon said property and received injuries by coming in contact with said wire; nor will the maintenance of such wire, under such circumstances, make the company a willful tort-feasor as to such licensee.
ERROR: Court of Appeals for Summit county.
Mr. Lee J. Myers, for plaintiff in error.
Messrs. Mather, Nesbitt Willkie, for defendant in error.
This is an action brought to recover damages for an injury suffered by an 11-year-old boy while he was on the premises of the defendant manufacturing company, the injury being caused by his coming in contact with a wire used by the defendant in the prosecution of its business.
Defendant manufactured brick, and its plant consisted of about 23 acres of land, and the wire was used for the purpose of conducting electricity to a shovel operated by electricity, which was moved about within a limited area on the premises.
On behalf of plaintiff, it is conceded that the boy was a bare licensee, who was upon the premises, not by invitation, express or implied, but for his own purposes and pleasure. It is not alleged in the petition, nor is it claimed, that the defendant knew that said boy was upon its premises or did any thing to injure him by way of active operations. Hence the cause of action is not based upon a claimed failure of the defendant to exercise ordinary care after discovering the boy upon its premises, nor is it based upon a claim that the defendant wantonly or willfully injured said boy — the only claim made being that the defendant exposed said boy to a "hidden danger," within the meaning of the rule hereinafter stated.
The Supreme Court of Ohio, as well as a large majority of the various courts of the states of the Union, has definitely repudiated the doctrine of the turntable or attractive nuisance cases.
After a very extended consideration of the subject, our Supreme Court declared: "1. It is not the duty of an occupier of land to exercise care to make it safe for infant children who come upon it without invitation but merely by sufferance." Railroad Co. v. Harvey, 77 Ohio St. 235, 83 N.E. 66.
The Supreme Court of the United States, in a recent case, United Zinc Chemical Co. v. Britt, 258 U.S. 268, at pages 275 and 276, 42 S. Ct., 299, 300 ( 66 L. Ed., 615, 36 A.L.R., 28), has declared the law to be: "Infants have no greater right to go upon other people's land than adults, and the mere fact that they are infants imposes no duty upon landowners to expect them and to prepare for their safety. * * * There can be no general duty on the part of a landowner to keep his land safe for children, or even free from hidden dangers, if he has not directly or by implication invited or licensed them to come there."
It must now be taken as settled law in the state of Ohio that:
"3. Actionable negligence exists only where the one whose act causes or occasions the injury owes to the injured person a duty created either by contract or by operation of law, which he has failed to discharge.
"4. A licensee takes his license subject to its attendant perils and risks, and the licensor owes him no duty except to refrain from wantonly or willfully injuring him and to exercise ordinary care after discovering him to be in peril; he should not be exposed to hidden dangers, pitfalls or obstructions.
"5. The foregoing rule is not altered by the fact that the injured person is a child of tender years." Hannan, Admr., v. Ehrlich, 102 Ohio St. 176, 131 N.E. 504.
The question is: Is the defendant liable because it exposed said boy to a "hidden danger" upon its premises?
There is no evidence tending to prove that when installed said wire was not properly insulated, nor that the company had any knowledge that the wire was in such condition as to make it dangerous to come in contact with it; indeed, the only evidence in support of the allegation in the petition that the wire had become worn and uninsulated is the fact that the boy was injured by coming in contact with it.
There was no evidence tending to show that when injured the boy was proceeding along any path, or a path commonly used by licensees, or that the defendant had created a new danger, or that it was operating in any manner other than its usual and customary manner, which it had followed for the preceding ten years.
We do not think that the authorities will warrant the conclusion that a manufacturing company, by the mere maintenance upon its land of a wire charged with electricity for ordinary and lawful purposes, and incident to its use in carrying on a lawful business, which wire was properly insulated and installed, but which, without the knowledge of the company, has become worn and partially uninsulated, can properly be said to have exposed to a hidden danger one who, subsequent to such installation, has become a licensee, and has been injured by coming in contact with said wire while upon said company's premises; nor will the maintenance of such a wire, under such circumstances, make the one who maintains it a willful tort-feasor with respect to a licensee who comes in contact with said wire.
Under the record in this case, the trial court was justified in directing a verdict in favor of the defendant, and the judgment is affirmed.
Judgment affirmed.
FUNK and PARDEE, JJ., concur.