(108 A) the highway past the residence of plaintiffs, the [ed by its opponent to be true; but, relying wires of which were uninsulated, being strung on some predicated defect of substance, by through trees on plaintiffs' premises, and that the rules of law arising on those facts, it deplaintiffs' minor son while climbing a tree came nied that plaintiff stated a cause of action. in contact with a wire and was killed, held, in In other words, defendant did not raise any view of all the circumstances, sufficient to state a cause of action. Exceptions from Supreme Judicial Court, Lincoln County, at Law. Action by Anelious O. Chickering, administrator, against the Lincoln County Power Company. On exceptions to an order overruling a demurrer to the declaration. Exceptions overruled. Argued before CORNISH, C. J., and HANSON, PHILBROOK, DUNN, MORRILL, and DEASY, JJ. George A. Cowan, of Damariscotta, for plaintiff. A. S. Littlefield, of Rockland, for defend ant. DUNN, J. This action was brought, under the provisions of Revised Statutes, c. 92, $$ 9 and 10, by the administrator of the estate of Alton A. Chickering, deceased, for the benefit of an only heir at law, to recover the pecuniary damages resulting from the immediate death of the intestate in consequence of alleged wrongful neglect of the defendant. After setting forth plaintiff's appointment and qualification as administrator, and that he brough the suit for a statutory beneficiary, the substance of the declaration is that on May 23, 1918, for transmitting electricity at high voltage from its generating plant at Damariscotta Mills, the defendant owned and operated a line of posts and wires extending in and along a highway called the River road in Newcastle; that defendant "wrongfully, negligently, and carelessly maintained said wires, with no insulation whatever, or any other protection therefrom, along said highway and past the plaintiff's residence, situated on the east side of and adjoining said highway"; that said wires were "wrongfully, negligently, and carelessly strung from the cross-arms on the poles" among the branches of a shade tree in plaintiff's yard, "said wires being hidden from view by the foliage thereof, and being less than 16 feet from the ground"; that intestate, a minor of the age of 12 years, playing that day, as he was entitled to, about plaintiff's premises, where also intestate lived, climbed the tree where the wires were run, "and while in said tree said wires came in contact with his body, without fault on his own part, and he was electrocuted and instantly killed thereby." Other allegations of Other allegations of the declaration are not essentially important of recital at this time. [1] By interposing a general demurrer, the defendant confessed all the facts well plead question of fact. It raised an issue challenging legal vitality of the case. The question for review is whether demurrer properly was overruled. [2] Although the line of posts and wires was located in and along a public way, it was nevertheless, on the record before us, rightful property of the defendant. Granting that the poles and wires were legal structures, the owner would be liable only for carelessness or negligence in their erection or maintenance. R. S. c. 60, § 27. [3, 4] It would be difficult, in an acceptable general rule, to set bounds to the extent to which ownership makes it possible for one to use his own property without incurring liability for injury to the person or property of another resulting from such use. The test is not whether the use caused injury, or whether injury was the natural consequence, but whether the use was a reasonable exercise of that dominion which the owner of property has, having regard to his own interests, the rights of others, and having, too, in view public policy. When a person attempts to do that which is useful, usual, or necessary, as well as lawful, if done under proper conditions, and injury unexpectedly results, it would be at variance with legal principles to say that he does it at the peril of being adjudged guilty of inexcusable wrong if it errs as to fitting manner of performing it. For the doing of an act without right a person may be adjudged guilty as a trespasser, but, if he had a right to do the act, the question of whether he reasonably exercised that right turns upon his negligence, within the latitude for discrimination or distinction which that form of action affords. [5-8] "Actionable negligence," said Whitehouse, J., in Boardman v. Creighton, 95 Me. at page 159, 49 Atl. 665, "arises from neglect to perform a legal duty." In the declaration under consideration there is absence of specific allegation of duty owed by defendant to plaintiff's intestate, and of breach of that duty, with resulting injury. It is good pleading in an action of tort, founded on a defendant's negligence, for the declaration to allege what duty was owing by the one to the other, together with the breach of that duty and the consequential injury. But a declaration would not be intrinsically bad for want of such specific averments. A plaintiff may make direct and positive averments of fact from which the law will imply the existence of duty, and by like averments he may show wherein the defendant left duty undischarged. "When it [the declaration] is founded on the obligation of law, unconnected with any contract between the parties, it is sufficient ing between the branches of a shade tree in his yard. Intestate, while at play, climbed into the tree, and, as the immediate result of contact there with a naked wire, was instantly killed by an electric shock. Trees growing about a family home, are not primarily for boys to play in. But by climbing a tree a boy would not altogether remove himself from the pale of the protection of the law. In constructing and maintaining a line for transmitting the subtle agency of electricity, no one may with impunity totally disregard the natural habits and the childish inclinations of boys at play to climb the dooryard shade trees. Human life is short enough, and its burdens and responsibilities come soon enough, at best. To take from boyhood the legitimate pleasures and adventures of tree climbing would unduly restrict the confines of that memory cherished domain, and lessen life's joys both there and to state very concisely the circumstances the plaintiff's residence; the wires stretchwhich give rise to defendant's particular duty or liability." 1 Chitty on Pleadings, 397. By direct averment a pleader must at least state facts from which the law will raise a duty, and show an omission of the duty, with injury in consequence thereof. 29 Cyc. 567. It is sufficient to allege facts in a general way which will give the defendant notice of the character of the proof that would be offered to support the plaintiff's case. There are many cases where, when certain facts are shown, a general allegation of negligence or want of care gives all the information needed. Sufficiency of the pleadings must be determined upon the facts from which the legal duty is deduced. Marvin Safe Co. v. Ward, 46 N. J. Law, 19, 23, citing Seymour v. Maddox, 16 Q. B. 326. Reasonable certainty in the statement of essential facts is required to the end that defendant may be informed as to what he is called upon to meet on the trial. Facts showing a legal duty, and the neglect thereof on the part of the defendant, and a resulting injury to the plaintiff, should be alleged. 29 Cyc. 565. thereafter. As a general proposition, a person takes the risk of accident, or contributes negligently to his own injury, as the case and relation may be, only where he voluntarily exposes [9] This declaration sets out conjoined himself to a danger of the existence of which acts of negligence, both of which may be he knows, or, in the exercise of that degree true, and both of which, coalescing as a sin- of care which an ordinarily prudent person gle act, may have caused the accident. would exercise, he ought to know. The law Shorn of technical phraseology, plaintiff imperatively imposes upon every one that, charges that defendant negligently had a proportioned with the danger to be avoided, dangerous wire wrongfully, carelessly, and he should use care for his own protection. negligently strung. In reply the theory of in Union P. Ry. Co. v. McDonald, 152 U. S. Yet, as Mr. Justice Harlan approvingly said the doctrine of attractive nuisances, famil iar in the turntable cases, has been discuss- 262, 14 Sup. Ct. 619, 38 L. Ed. 434, "the law iar in the turntable cases, has been discuss-discriminates between children and adults, ed by counsel. That doctrine is that he who the feeble and the strong, and only requires creates on his premises or leaves there a dan- of each the exercise of that degree of care to gerous machine or thing alluring to children thereby impliedly invites children to endangering play; and, if they come, and he fail to exercise due precaution to protect them from injury resulting from their play, liability in damages for negligence attaches. This doctrine never has been adopted in Maine. McMinn v. Telephone Co., 113 Me. 519, 95 Atl. 210. be reasonably expected in view of his age and condition." Reynolds v. N. Y. Central, etc., Railroad, 58 N. Y. 248. Children are not holden to the same extent of care that adults are. They are bound to use that degree of care which ordinarily prudent children of their age and intelligence are accustomed to use under like circumstances. The age and intelligence of a child are important factors in determining whether due care has been used. Colomb v. Street Railway Co., 100 Me. 418, 420, 61 Atl. 898. The capacity, the intelligence, the knowledge, the experience, and discretion of the individual child are always evidentiary circumstances. There is no absolute standard. Plaintiff's intestate was 12 years of age. A bright, intelligent boy of that age, in the possession of all his faculties, has been held to be sui juris (Crosby v. Railroad Co., 113 Me. 270, 93 Atl. 744, L. R. A. 1915E, 225; Gleason v. Smith, 180 Mass. 6, 61 N. E. 220, 55 L. R. A. 622, 91 Am. St. Rep. 261), and his conduct measurable by the standard of that of boys of like age who are ordinarily careful (Crosby v. Railroad [10-12] In the transmission of electricity high regard must be had to the safety of the public. It cannot be said as a matter of law that it is the duty of an electric company, regardless of where its line may be and as to whom injury may come, to insulate or otherwise extraordinarily guard wires strung, by virtue of a legal location, above the general sphere of hazard. This duty has been held to be limited to points where there is ground to apprehend that a reasonably prudent person may come in close proximity with the wires. Wetherby v. Twin State Co., 83 Vt. 189, 75 Atl. 8, 25 L. R. A. (N. S.) 1220, 21 Ann. Cas. 1092. In the case here it appears that defendant had a high-tension transmission line (108 A.) Temple v. McComb City El. Lt. & P. Co., 89 Miss. 1, 42 South. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. 924, was brought by a child 10 years old to recover for injuries caused by an uninsulated wire which defendant had placed in a tree in a highway. Plaintiff came in contact with the wires while climbing among the branches of the tree. Reversing judgment for defendant, Chief Justice Whitfield said: tree, the kind of tree, and, knowing that, knew what any person of practical common sense would know-that it was just the kind of a tree that children might climb into to play in the branches." Presence of the wires might cause a per- a public street, and was injured by coming son to surmise them of dangerous character. in contact with the defectively insulated But, in and of itself, a wire is inoffensive. wire of a corporation engaged in furnishing Many a yard has wire strung through it as electric light. The reviewing court said that a piece of mechanism to which electricity is on the main question of whether danger to ever stranger. Again, wires charged with any one was reasonably to be apprehended electric current may be harmless and they because of the condition of the wire the case may be highly dangerous. The difference is was close. In other respects it adopted the not apparent to ordinary observation. "While reasoning of the trial court and affirmed an expert," said Judge Lathrop in Griffin v. judgment for the plaintiff. United El. Lt. Co., 164 Mass. 492, 41 N. E. 675, 32 L. R. A. 400, 49 Am. St. Rep. 477, "may consider it dangerous to touch any wire, unless he knows it to be a harmless one, there was evidence that the plaintiff was not an expert, and did not know that an electric light wire would do any hurt. * The question of his due care was for the jury." Electricity gives no warning of its presence in intimate association with wire. It is not visible. It is odorless, colorless, and silent; a violent and mysterious force and ble use of the streets for its poles and wires as "The appellee had the right to such reasonapower of nature subordinated to the gainful the conditions existing at the time in the comand the highly serviceable use of man. Amunity warranted. On the other hand, the apperson seeing a wire that he knows is, or pellant had the reciprocal right to what was a may be, carrying this perilous agency should reasonable use of the streets on his part. in duty avoid coming in contact therewith. * * * Whether this appellee knew that this He is not, however, entirely open to the particular small boy was in the habit of climbcharge of contributory negligence if he as- ing this tree or not, it is clear from the aversume that the owner of the wire has dis-ments of the declaration that it did know the charged positive duty at places where people reasonably may be expected to go for work, business, or pleasure. Failure of the one to perform duty does not relieve the other of all necessity for care. A person may never safely assume that a wire carrying electricity is wholly free from danger. For the reason that a wire may not carry any current at all, or may carry a current that is not dangerous, or carrying a current dangerous to the safety of mankind generally may be sufficiently safeguarded, there is radical difference in the degree of care to be exercised by one reasonably approaching a lurking, injurious element of which he does not know, and by one approaching an obvious or known source of danger where he realizes that lack of heed on his part may impend disaster. Whether intestate had been admonished of the hidden in the wire, what opportunity he had had to inform himself as to the existing situation and its dangers, for what length of time to his knowledge the wire had been in place and in use, whether he was equal in capacity and experience to the ordinarily careful boy of his age, whether he was bright, quick, intelligent and active, what care or precaution, if any, he actually took to avoid injury, and other inquiries into which a subject of this nature might broaden out, demurrer to the declaration does not develop. Courts elsewhere have passed upon cases resembling this. In Mullen v. Wilkes-Barre Gas & Electric Co., 229 Pa. 54, 77 Atl. 1108, a boy of tender years while at play climbed a chestnut tree standing in the sidewalk of The limb of a tree on which a boy was sitting broke, and he came in contact with an uninsulated wire passing through the tree below where he had sat. The court held that lack of insulation of the wires, and not the breaking of the limb, was the proximate cause of the injury, and that defendant reasonably could have anticipated that a boy would climb the tree. Thompson v. Slater, 197 Mo. App. 247, 193 S. W. 971. In Sweeten v. Pacific Power & Light Co., 88 Wash. 679, 153 Pac. 1054, an electric light company permitted its wires from which the insulation had become worn, of which fact its manager was warned, to remain in a large tree in a public alley where children habitually played. That company was held liable for the death of an 8 year old boy who came in contact with the wires while in the tree. Denver Con. El. Co. v. Walters, 39 Colo. 301, 89 Pac. 815, was a case where a boy 12 years old sought to recover for injuries caused by contact with defendant's uninsulated wire affixed to his father's house for carrying electricity for lighting purposes there. Judgment in his favor was reversed on other grounds, but the court said that, wherever there was a reasonable probability of accessibility of the appliances to and by children, the strict rule of the highest degree of care was to be invoked. In Benton v. North Caro lina Service Corp., 165 N. C. 354, 81 S. E. Jed with a very high regard for the safety of 448, the electric company was held liable for the public, and the thoughtlessness, inexperience, the death of a boy who came in contact with lack of judgment, and misjudgment of children its high-power wires where they passed of tender years must be taken into account; through a tree in the street, and the insula- but the courts cannot make electric companies insula-insurers of the safety of children, more than tion had been worn out. Said the court: of others, nor require of such companies, in the circumstances of their business, a degree of care, prudence, and foresight beyond that which it is given to careful and prudent men to have and exercise in such or like circumstances." Reason and humanity alike approve the rule so well defined by the Vermont jurist. Adopting it in the case at bar, it is our conclusion that the averments of the plaintiff's declaration set out a state of facts which can be held to impose liability on the defend ant. Exceptions overruled. (118 Me. 424) In Thompson v. Tilton El. Lt. Co., 77 N. H. 92, 88 Atl. 216, it was held that defendant was liable for the death of a boy who was killed while playing in a road, as he leaned against a pole carrying defendant's wires and came in contact with a chain used to raise and lower the electric lamp. The court said that the boy was lawfully in the highway, and that he was guilty of no trespass against the defendant. McCrea v. Beverly Gas & Electric Co., 216 Mass. 495, 104 N. E. 365, was an action by a city employé against a public service corporation maintaining wires transmitting electricity. While climb-1. HOMICIDE 203(1), 204-DYING DECLARAing a tree in the performance of his duties, plaintiff was injured from an electric shock communicated by a wire of the defendant. It is said in the opinion: "Wires carrying a current with a voltage of 5,000 volts are exceptionally dangerous and require extraordinary precautions; and the higher the voltage the greater the precautions that are required. * * The necessity of men climbing trees to do the required work on moths was known, and it is possible to insulate electric wires. The * * wires passed through or by trees at 50 places at least. In spite of that no attempt was made by the defendant to insulate the wires at these points." It may be that the dangerous character of a wire carrying electricity at high voltage would be unaffected by insulation. A situation is conceivable in which insulation originally adequate might tend, from partial and unnoticed wear, to increase the degree of danger. Perhaps such wires had better be left naked. These questions are not now presented for decision. Plaintiff's contention is that his intestate, exercising due care on his own part, was where he was of legal right entitled to be, and that he was not bound to take the premises as he found them; that a wire apt to inflict injury there negligently placed and negligently maintained by the defendant, without insulation and without warning or safeguard whatever, caused deplorable accident. Delivering the opinion of the court in Wetherby v. Twin State Gas & Electric Co., supra, Justice Haselton says: STATE v. BORDELEAU. (Supreme Judicial Court of Maine. Jan. 3, 1920.) TIONS EVIDENCE IF MADE WITH CONVICTION To render decedent's dying declarations ad- EVIDENCE SHOWING CONSCIOUSNESS OF APPROACHING DEATH. Decedent's consciousness of impending death, rendering admissible his dying declarations, may be established by any relevant evidence, including evidence of the physical condition of decedent when he made the statements, as well as evidence of his conduct and declarations. 3. HOMICIDE 203(3)-EVIDENCE SUFFICIENT TO ADMIT DYING DECLARATIONS. Evidence, consisting of the physical conditions and decedent's declarations, held to show that decedent realized he was certain to die sufficiently to admit for the consideration of the jury his dying declarations against defend ant. 4. HOMICIDE 221 CREDIBILITY OF EVIDENCE AS TO DYING DECLARATIONS A JURY QUESTION. After evidence of dying declarations is admitted, its credibility is entirely within the province of the jury, who should have the opportunity to weigh all circumstances, and may give the testimony and declarations such credit as they think they may deserve. 5. HOMICIDE 336-PROCEDURE IN REGARD TO EVIDENCE OF DYING DECLARATIONS HARM- In a prosecution for homicide, defendant "The business of transmitting electricity, while indispensable to society, must be conduct- was not prejudiced by the trial court's procedure (108 A.) in first hearing, with the jury excluded, evidence [ hand. * ** Death, shortly to ensue, must as to dying declarations, and then permitting be an absolute certainty, so far as the conthe whole testimony on that head to go to the sciousness of the person making the accusation jury for determination whether the declarations is concerned." Beasley, C. J., in Peak v. State, came within the rule of admissibility before 50 N. J. Law, 222, 12 Atl. 701. taking them into consideration, the Massachusetts practice. But the actual period of survival after making the declaration is immaterial. It is Exceptions from Supreme Judicial Court, the consciousness of almost immediate disAroostook County, at Law. Alexander J. Bordeleau was convicted of murder, and he excepts. Exceptions overruled, and judgment entered for the State. Argued before SPEAR, HANSON, DUNN, MORRILL, WILSON, and DEASY, JJ. Guy H. Sturgis, Atty. Gen., Bernard Archibald, of Houlton, and William R. Roix, County Atty., of Presque Isle, for the State. John P. Deering, of Biddeford, and Charles P. Barnes, of Houlton, for respondent. MORRILL, J. The respondent has been convicted of the murder of one Moses Tozier, committed on the 16th day of November, 1917. At his trial counsel for the state proposed to offer in evidence certain declarations of the deceased, as dying declarations. The presiding justice directed the jury to retire, and in their absence heard the testimony of five witnesses, and then ruled that the deceased had, at the time of making the declarations, given up all hope of life, and that the declarations were admissible. To this ruling respondent has exceptions. The jury was then recalled, and the same witnesses, and an additional witness, were examined in the presence of the jury as to the condition of the deceased, his realization of impending death, and were permitted, against objections by respondent's counsel, to give in evidence declarations of deceased as to details of the assault, naming the respondent as his assailant. To this ruling, admitting said declarations in evidence before the jury, respondent also has exceptions. solution, and not the rapid succession of death in point of fact, that renders the testimony admissible. These propositions are supported by the authorities. 1 Greenleaf on Cowen & Hill's Notes, No. 453; 2 Wigmore Ev. § 158; Phillips on Ev. (2d Am. Ed.) 235; on Ev. § 1438 et seq.; 4 Chamberlyne on Ev. § 2831 et seq. [2] This consciousness of imperding death, this phase of mind, may be established by any relevant evidence. The range of competent evidence is wide. It may include eridence of the physical condition of the declarant at the time of making the statement, from which the inference may be legitimately drawn that the declarant had a conscious sense or impending death, as well as evidence of the declarant's conduct and declarations. 1 Greenleaf on Ev. § 158; 4 Chamberlayne on Ev. § 2831 et seq.; 2 Wigmore on Ev. § 1442. The Attorney General apparently agrees with counsel for respondent that the determination of the presiding justice, upon the preliminary hearing, that the alleged dying declarations were admissible presents a question of law, and may be reviewed on excep. tions. Com. v. Roberts, 108 Mass. 296, 302. We express no opinion thereon, but proceed to consider the case as presented. [3] Upon the preliminary hearing in the absence of the jury the presiding justice heard the testimony of five witnesses, Pearl E. Morgan, Daniel H. Perry, Edna Rogerson, Johnson Morgan, and Dr. George W. Upton. The bill of exceptions includes a transcript of the testimony of Harold S. Merry and Dr. Frank H. Jackson, the medical examiner. The bill does not affirmatively show when the testimony of Merry and Dr. Jackson was heard. It is stated in the brief for the state, and does not appear to be controverted by the defense, that these witnesses were called and examined before the jury retired. This is plainly to be inferred as to Dr. Jackson from the testimony of Dr. Upton, when reexamined before the jury, that he had heard Dr. Jackson's testimony as to the conditions that he found and the cause of death, and agreed with his conclusions. [1] Counsel accept the general principle that the solemnity of the situation of a person under the conviction that he is about to die, with all hope of recovery gone, supplies a circumstantial guaranty that his statements are in accordance with the truth, notwithstanding they are not sanctioned by oath, and that cross-examination is impossible. "As this guaranty consists in the subjective effect of the approach of death," to use the language of Mr. Wigmore (2 Wigmore on Ev. § 1439), it must appear to the presiding justice that at the time of making the statements the deceased must be conscious of the certainty of approaching speedy death; if any hope of In mid-afternoon of the day following the recovery remains, the declarations are in-assault, the deceased, a man about 65 years admissible; nor is it sufficient that the deceased has only the belief that he may ultimately die of his injuries. To quote from a case on respondent's brief: "The person making the declaration shall have a complete conviction that death is at 108 A.-30 What then was the scene as presented to the presiding justice? old, spare of figure, about 5 feet 8 inches tall, is found lying diagonally across a bed in an upstairs bedroom of his house. He was in his shirt sleeves, wearing his trousers and leather topped lumberman's rubbers. He was partly covered by the bedclothes. |