Opinion
No. 29934
Decided January 24, 1945.
Negligence — Duty of occupier of land toward trespasser or licensee — Power company installing electric transformer on municipal airport property — Occupier of land by sufferance and entitled to same rights as landowner — Power company not liable for death of trespasser — In absence of proof of wanton, willful or reckless misconduct.
1. An occupier of land, either as lessee, tenant or by sufferance, owes no duty to a trespasser or licensee upon such land except to refrain from wanton, willful or reckless misconduct which is likely to injure him.
2. Where a power company, upon request of a municipality, furnishes electric service at an airport operated by such municipality, and as a part of the equipment to furnish service installs a transformer within a walled enclosure upon the airport property, without a lease or rental agreement for the land within such enclosure but with the knowledge and acquiescence of the municipality, the power company is the occupier of such land by sufferance and is entitled to the same rights as the landowner, as against a trespasser within the enclosure.
3. Where a youth (about 19 years of age), in traveling along a path through such airport property, leaves the beaten path and enters the enclosure above described, one wall of which is down, he thereby becomes a trespasser as against the power company; and if, while so trespassing, he comes in contact with the transformer carrying a high voltage of electricity and is electrocuted, the power company is not liable in damages for his death, in the absence of proof that the company was guilty of wanton, willful or reckless misconduct.
APPEAL from the Court of Appeals of Mahoning county.
Walter W. Soles (hereinafter called plaintiff), administrator of the estate of Charles W. Soles, a minor, brought this action for wrongful death in the Court of Common Pleas of Mahoning county against the Ohio Edison Company (hereinafter called defendant) based upon the premise that defendant was guilty of negligence which was the proximate cause of the death of plaintiff's decedent.
The facts are substantially as follows:
The city of Youngstown, Ohio, is the owner of a large tract of ground located northeast of that city, upon which it established an airport called Landsdowne Airport. In 1928 the city requested defendant to install electric service at the field and such installation was made in June of that year. As part of such service a transformer was installed upon a concrete base about three and one-half feet wide by six feet long, extending about 12 inches above the ground. The transformer was enclosed on three sides by a close-board picket fence about eight feet high and on the fourth side by a part of the east wall of a hangar. The enclosure was about ten feet square with a gate which was locked and upon which there was a sign "Danger High Voltage — Keep Away." There is no evidence that the city ever actually leased or rented the enclosed property to defendant, although the evidence makes clear that the enclosure was maintained with the full knowledge and acquiescence of the city.
On or shortly before June 30, 1931, the city discontinued the airport as a city function and the meter service was closed. Thereafter, until 1942, the airport was operated by private individuals or companies. On the same day that the city discontinued the electric service it was reopened for Aircraft Development Bureau, which continued the service until December 4, 1935. On December 5, 1935, F. Arthur Jones commenced operation of the airport and the service was again reopened. He continued service until March 1941 when the meter was again closed. During all this time the transformer was left in position within the enclosure and the service when not in use was shut off at the meter. In August 1941, the service was again restored for J. Ralph Seidner and was continued until January 1942. The transformer carried about 4,000 volts of electricity. It is undisputed that the public did to some extent travel over and about the airport, and that there was a path through the airport property within 10 to 20 feet from the enclosure housing the transformer.
The decedent, a garage mechanic, lived with his parents about half a mile northeast of the airport. He was 18 years and nine months of age at the time he met his death. At about noon on April 24, 1941, he was seen going in the direction of the airport. The next day at about 5:30 p. m. his body was discovered lying on the ground within the enclosure, in proximity to the transformer. At that time, the fence which formed the east wall of the enclosure was down flat upon the ground. There is testimony that the fence had been down for a month or five weeks before the occurrence; that at the time the body was found the breaks in the fence were fresh and the screws had been forced from the hasp of the lock; that the transformer was upset; that the lid was off, some of the wires were broken and the oil from the transformer was on the cement base; and that within the enclosure a number of stones were found, some of which appeared to be freshly mutilated. There was no eyewitness to what had happened, but it is not disputed that death was caused by electrocution, and that decedent apparently had been dead for some time prior to the discovery of his body.
The jury returned a verdict in favor of plaintiff in the sum of $7,500. Within the time limited by law, the defendant filed a motion for a new trial and a motion for judgment notwithstanding the verdict. The court granted the former motion and overruled the latter.
Thereafter, defendant filed an appeal upon questions of law, assigning but one ground of error, namely, that the trial court erred in overruling the motion. The Court of Appeals (by a divided court) affirmed the order of the trial court.
The case is here for review following the allowance of a motion to certify the record.
Messrs. Taylor Karam, for appellee.
Messrs. Harrington, Huxley Smith, for appellant.
Defendant insists that it is entitled to judgment in its favor, notwithstanding the verdict.
Section 11601, General Code, provides as follows:
"When, upon the statements in the pleadings or upon the evidence received upon the trial, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party * * *." (Italics ours.)
The defendant's contention is based upon the proposition that the decedent was a trespasser or a licensee, and that it owed him no duty except to refrain from wanton, willful or reckless misconduct which was likely to injure him. On the other hand plaintiff claims that defendant owed decedent the duty to exercise ordinary care for his safety and is liable if his death was proximately caused by defendant's negligence.
The plaintiff's petition charges defendant with negligence. It contains no allegation of wanton, willful or reckless misconduct nor was any evidence offered which proved or tended to prove such misconduct.
It is necessary, therefore, to determine what duty the defendant owed the decedent and whether there was a breach of such duty.
Where one goes upon the land of another he is either an invitee, a licensee, or a trespasser.
The plaintiff's decedent was not an invitee upon the premises, and under the most favorable interpretation of the evidence he was at best a mere licensee upon the property of the city. It is not seriously contended that such relation is not true as to the city, but it is asserted that defendant cannot avail itself of a defense based on that relation, because it is not the landowner.
Numerous cases can be found to the effect that where persons have been injured by contact with electric wires suspended above the ground along a public highway or over private property of third persons, a power company cannot avail itself of immunity from liability upon the ground that such injured person was a trespasser or licensee against the landowner. This doctrine has been applied most frequently where the injured person was a child of tender years. An almost equal number of cases holds that the defense that the injured person was a trespasser or licensee is available to a power company even though such company was not the landowner, and that the rule applies whether the injured person was an adult or a child.
In 14 A. L. R., 1038, and 56 A. L. R., 1030, is to be found a review and discussion of many cases upon this subject.
The Court of Appeals bottomed its conclusion upon authority of two cases decided by this court, to wit, Ziehm v. Vale, 98 Ohio St. 306,120 N.E. 702, 1 A. L. R., 1381; and Coy, an Infant, v. Columbus, Delaware Marion Electric Co., 125 Ohio St. 283, 181 N.E. 131.
In the Ziehm case, supra, the court was dealing with the duty of an automobile operator toward a child four and one-half years of age.
Paragraph one of the syllabus in that case reads as follows:
"Where the owner of an automobile, upon returning to his car, finds an infant four and one-half years of age thereon, and twice drives the infant from the car, the owner is not thereby absolved from further duty towards such infant. Under such circumstances, when the child still remains in close proximity to the car, the driver is required to exercise reasonable care to avoid injury to the child."
A perusal of the facts in that case will disclose that there was undisputed evidence to prove that the defendant knew that the child was upon the running board of the car or in close proximity thereto when he cranked his engine and with knowledge of that fact he started the car and the child was injured.
In the Coy case, supra, the injured child was six years old. The court was dealing only with the sufficiency of a petition, and the factual situation is detailed in paragraph two of the syllabus, which reads as follows:
"A petition alleging in substance that a company maintains and operates an electrical transformer charged with a powerful and dangerous electric current, situated and in active operation upon premises continuously frequented by children for a number of years, with the knowledge of such company, and further that such company failed to keep in repair a picket fence surrounding such transformer, but allowed the railings of the same to rot and decay, and the pickets to become loose, thereby leaving openings in such fence large enough for persons to enter, and that a child coming in contact with such transformer was injured, states a cause of action." (Italics ours.)
It is significant that in each of these cases the defendant had knowledge of the fact that children were playing in close proximity to the instrumentality which caused the injury.
Here we are not dealing with a child but with a young man almost nineteen years of age, a garage mechanic, and here there is no evidence that the defendant had any knowledge that part of the fence forming one wall of the enclosure was down, or that any one, either child or adult, ever went within the enclosure.
Due to the difference between the factual situations in the two mentioned cases and the factual situation in the instant case we conclude that those holdings are not controlling.
It has been pointed out that the defendant was the occupier of the land within the enclosure, in which the transformer was housed, with the full knowledge and acquiescence of the city.
Even assuming that the decedent had an implied invitation to use the path across the property of the city, when he left the path and entered the enclosure no invitation can be implied, and he became a trespasser or licensee upon the land occupied by the defendant. United Zinc Chemical Co. v. Britt, 258 U.S. 268, 66 L.Ed., 615, 42 S.Ct., 299, 36 A. L. R., 28.
The headnotes in the Britt case read as follows:
"1. A landowner owes no general duty to keep his land safe for children of tender years, or even free from hidden danger, if he has not directly or by implication invited them there.
"2. A road is not an invitation to leave it elsewhere than at its end.
"3. Defendant owned a tract, on the outskirts of a town, on which was an open and abandoned cellar wherein water had accumulated, clear in appearance but dangerously poisoned with chemicals resulting from manufacturing operations formerly conducted there by the defendant. A traveled way passed within 120 feet of the pool and paths crossed the tract. Children came upon the land, entered the water, were poisoned and died. Defendant knew the condition of the water; but the pool, if visible to the children without trespass, was not proven to have caused their entry, nor were children in the habit of going to it. Held, that no license or invitation could be implied and that the defendant was not liable."
Justice Holmes, in writing for the court at page 275 uses this language:
"Infants have no greater right to go upon other peoples' 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. On the other hand the duty of one who invites another upon his land not to lead him into a trap is well settled, and while it is very plain that temptation is not invitation, it may be held that knowingly to establish and expose, unfenced, to children of an age when they follow a bait as mechanically as a fish, something that is certain to attract them, has the legal effect of an invitation to them although not to an adult. But the principle if accepted must be very cautiously applied * * *."
We think that the occupier of the land stands in the same situation as the landowner with reference to a trespasser or licensee, that is, such occupier owes no duty to a trespasser or licensee except to refrain from wanton, willful or reckless misconduct which is likely to injure him. In Wheeling Lake Erie Rd. Co. v. Harvey, 77 Ohio St. 235, 83 N.E. 66, 122 Am. St. Rep., 503, 19 L.R.A. (N.S.), 1136, it is said, in paragraph one of the syllabus:
"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."
The decedent, a garage mechanic, whom we must assume had some knowledge* of electrical appliances and electric current, is not entitled to the benefit of the rule applied in cases involving very young children.
The basis of the rule as it applies to infants is that the attractiveness of the unguarded construction or agency — the temptation of it to children — is an implied invitation to go upon the premises, that purges their technical trespass. This rule has no application to adults or to minors who have reached the age of discretion.
We can discern no sound reason why the ordinary rule as to the duty owed to a trespasser or licensee should not be applied here and, therefore, we conclude that the defendant breached no duty which it owed to decedent.
Even assuming that defendant could have been liable upon the theory of negligence, still plaintiff could not recover for the reason that decedent would have been guilty of contributory negligence as a matter of law when he left the path, entered the enclosure and came in personal contact with the transformer. United Zinc Chemical Co. v. Britt, supra.
In our view the plaintiff is not entitled to recover under any theory and it follows that the Court of Appeals erred in affirming the order of the trial court overruling the motion for judgment.
Coming now to render the judgment which the Court of Appeals should have rendered we are of the opinion that final judgment should be and it hereby is rendered in favor of defendant.
Judgment reversed and final judgment for defendant.
WEYGANDT, C.J., ZIMMERMAN, TURNER, MATTHIAS, and HART, JJ., concur.