The answer of the defendant the Manchester Cotton Mills consists of: (a) A de nial of the material allegations of the complaint; (b) that plaintiff's injuries were caused by his act and negligence; and (c) that he was a trespasser on the premises of the defendant.

"The answer of the defendant Southern Power Company contains similar defenses. The case was tried at the November, 1912, term of the court for York county, before Judge Thomas S. Sease and a jury. At the close of the testimony for the plaintiff, the defendants made a motion for a nonsuit. This motion was overruled by the presiding judge. At the close of all of the testimony, defendants made a motion for the direction of a verdict in their favor, upon the grounds. * * This motion was also refused by the presiding judge. After hearing the charge of the presiding judge, the jury found a separate verdict against each of the defendants for the sum of $4,166.67. The defendants thereupon made a motion for a new trial which was also refused by the presiding judge. Thereafter judgment on the separate verdicts was entered against each of the defendants. Due notice of appeal was served.

"Argument.

"The following facts appear to be undisputed in this case: That the plaintiff was severely burned and injured by coming in contact with the electric wires in the transformer house, located on the property of the defendant the Manchester Mills. At what time this transformer was built, it does not clearly appear from the testimony. It appears that the plaintiff, a little boy, nine years of age, lived on the property of the Manchester Mills and for several months had been attending school in a building near the transformer house. During the recess hours the children were accustomed to play in the neighborhood of the transformer house, sometimes at one place and sometimes at another. It appears that the Manchester Mills were principally in control of the transformer house, although the agents and servants of defendant Southern Power Company occasionally visited it for the purpose of making necessary repairs in the electrical apparatus. The transformer house itself is a brick building, having a door and three windows. Across the windows are slats about 2 inches wide nailed on at intervals of about 2 or 3 inches. The windows each had 2 sashes with 6 lights in each sash, of about 10 by 12 inches each. The electric power wires were located in this house, near one of the windows, about 5 or 6 feet from

with the wires when standing on the ground. "The plaintiff and other children had been warned not to go near the transformer house on account of the danger connected therewith.

"There were two panes of glass out of the lower sash of the window where the power wires were located, but this fact had no connection with the injury to plaintiff, as the windows were raised, and hence the broken panes of glass were not within reach.

"On the day plaintiff received his injuries, he, with two or three other small boys, at the noon recess, went to the transformer house, and when first seen after his injury had his knee in the window and was hanging out by his hand. His hand was through the window touching the wires. In his own account of how he received the injury, the plaintiff stated that the other little boys had told him if he touched the wire it would make him jump and dance.

"As shown by the testimony, therefore, it was necessary that the plaintiff should climb up in the window, place his hand between the slat and under the window, before he could touch the wires or come in contact with them. This seems to be the only manner in which his injury could have been received, according to the undisputed testimony.

"The exceptions raise five issues of law for the determination of this court, to wit:

"(1) That there was error on the part of his honor in refusing to grant a nonsuit as to both defendants, and especially as to the defendant Southern Power Company.

"(2) That there was error on the part of his honor in refusing to allow defendants to introduce certain testimony.

"(3) That there was error on the part of his honor in refusing to direct a verdict in favor of both defendants, and especially as to the defendant Southern Power Company."

"(4) The question as to an attractive nuisance.

"(5) The duty to protect trespassing children from injury from dangerous agencies." [1] 1. The second issue is withdrawn in the argument. The first and third cover the same ground and present really only one issue, to wit: Was there evidence of negligence, and was there evidence of negligence as to both defendants? Appellants claim that there is certainly no evidence of negligence as to the appellant the Southern Power Company. The appellants have made common cause in this court, and both maintain that position, and yet the appellant the Manchester Cotton Mills in its answer "alleges that the transformer house mentioned in the complaint was erected by its codefendant, Southern Power Company, and was at the time of the plaintiff's injury under its exclusive control and management." However that may be, there was evidence to show that the transformer house was on the property of the Manchester Cotton Mills, and it there received its power, and that keys were in the possession of its

The negligence, if any, was the open window with unprotected wires charged with electricity within five or six inches of the open window. The undisputed testimony was that the children constantly played near the window. Home base was quite near. There was a dispute as to whether the plaintiff had ever been warned or not. The teacher did not claim to have warned the plaintiff about the deadly wires but about the house. The house, or the nearby pole, was home base used daily by little children from 6 to 12 years of age. There was no fence or stake or line to mark the boundary line that must not be crossed. All the buildings were located on the property of the Manchester Cotton Mills.

[2] 2. There is no dispute that the plaintiff had the right to enter upon the property to attend school. If the permission was limited, then the limits must be defined before the licensee becomes a trespasser.

[3, 4] It is hardly necessary to cite authority to show that, if a man establishes a dangerous agency where people are likely to be found, it must be guarded. If his honor referred to "social duty and the ordinary offices of humanity" instead of the law of the state, the appellant cannot complain if the state law required the same thing, and it does.

[5] 3. The appellant claims that, even if there was negligence, still the negligence was not the proximate cause, because there was an intervening cause when the plaintiff took hold of the wire, and without that the injury would not have occurred. The authorities cited are not binding, nor are they good law. A live wire stretched across the schoolhouse door would do no harm unless the plaintiff had supplied the intervening cause of coming in contact with it. The jury in this case have vindicated their intelligence and freedom from passion when they found only actual damages for inadvertence. They seemed to have come to the conclusion that all par ties who were charged with the high and responsible duty of protecting their little children from so dangerous a thing as an undiminished and unprotected current and its deadly and dreadful consequences were simply asleep at their posts and did not willfully sacrifice this plaintiff to sordid gain.

the defendants' third request, which was as follows: "The jury is charged that to maintain upon one's property enticements to the ignorant and unwary is tantamount to an invitation to visit and inspect and enjoy, and in such cases the obligation to endeavor to protect from the dangers of the seductive instrument or place follows as justly as though the invitation had been express.' The error being: (a) That such charge was not applicable to any of the testimony in the case; (b) that such charge was a charge on the facts in violation of the Constitution of this state, inasmuch as it instructed the jury as to the weight of the testimony and as to what inference should be drawn from the facts stated in such request to charge.

"(13) Because his honor erred in charging the jury as follows: 'It is true an infant may be a trespasser (that is, an infant of tender years) in a technical sense when it goes where it has no rightful permission or authority to be, but the same rule does not apply to infants as to adult trespassers. An infant non sui juris cannot be such a trespasser as would exempt any one from the duty of exercising ordinary care to avoid doing him an injury.' And in this connection I desire to read a few paragraphs from another case by the Supreme Court of the state, and that is as follows: Under the caption of 'Liability for Injuries to Children,' the author in 1 Thompson on Negligence, § 1026, thus speaks in strenuous language of the doctrine that liability extends only to wanton injuries: 'One doctrine under this head is that, if a child trespass upon the premises of the defendant and is injured in consequence of something that befalls him while so trespassing, he cannot recover damages unless the injury was wantonly inflicted or was due to the reckless, careless conduct of the defendant.' That is quoted from the eminent, distinguished author. The Supreme Court says: "This cruel and wicked doctrine, unworthy of a civilized jurisprudence, puts property above humanity, leaves entirely out of view the tender years and infirmity of understanding of the child, indeed his liability to be a trespasser in sound legal theory, and visits upon him the consequences of his trespass just as though he were an adult and exonerates the person upon whose property he is a trespasser from any duty towards him which they would not owe under the same circumstances toward an adult.' Quoting from this same decision: 'Children, wherever they go, must be expected to act upon childish instincts and impulses, and others who are chargeable with a duty of care and caution towards them must calculate upon this and take precautions accord

the error being: (a) That such charge was not a correct statement of the law as to infant trespassers, inasmuch as the defendants would be exempt from liability to an infant trespasser in the same manner and to the same extent as they would be to adult trespassers, if they were not guilty of negligence, and the injury to the infant trespasser was the result of his own act. (b) That it was error to read to the jury, in the circumstances, extracts from a decision of the Supreme Court wherein was quoted the opinion of the author of Thompson on Negligence, because such quotation from Thompson on Negligence was obiter dictum and at most was quoted by the Supreme Court in said case more by way of illustration than as a binding authority upon the issue raised in that case, which arose upon demurrer to the complaint therein. (c) That it was error to state to the jury that the Supreme Court in said case had characterized the law as laid down by many text-writers and announced by many of the courts of this country as a 'cruel and wicked doctrine unworthy of civilized jurisprudence' and 'puts property above humanity,' as this court had never delivered any such utterance, and the language used was that of a textwriter, and as used in the case in question was obiter dictum."

These exceptions cannot be sustained. The charges were taken from the case of Franks V. Southern Cotton Oil Co., 78 S. C. 10, 58 S. E. 960, 12 L. R. A. (N. S.) 468, and this court cites these authorities with approval.

The fourteenth exception complains of error in refusing a new trial. What has already been said covers this exception, and it is overruled.

The judgment appealed from is affirmed. GARY, C. J., and HYDRICK and WATTS, JJ., concur.

(95 S. C. 221)

connection, when the evidence as to whether it did was conflicting, was properly refused as invading the province of the jury. Dig. 88 413, 436, 439-441, 446-454, 456-460; [Ed. Note.-For other cases, see Trial, Cent. Dec. Dig. § 194.*]

3. FIXTURES (§ 1*)—NATURE—"FIXTURE.”

A "fixture" is an article which was originally a chattel, but which became a part of having an interest in the realty. realty by physical annexation thereto, by one

[Ed. Note. For other cases, see Fixtures, Cent. Dig. §§ 1, 6; Dec. Dig. § 1.*

For other definitions, see Words and Phrases, vol. 3, pp. 2831-2846; vol. 8, p. 7664.] 4. FIXTURES (§ 35*)-DETERMINATION OF NAThe determination of whether property constitutes a fixture is a mixed question of law and fact.

TURE.

[Ed. Note.-For other cases, see Fixtures, Cent. Dig. §§ 67-79; Dec. Dig. § 35.*1 5. FIXTURES (§ 4*)-TEST-INTENTION. an action involving the question, whether an article is considered as a fixture depends largely upon the intention of the parties.

While the court should define a fixture in

[Ed. Note.-For other cases, see Fixtures, Cent. Dig. §§ 3, 6; Dec. Dig. § 4.*] 6. APPEAL AND ERROR ( 216*)—PRESENTA

TION BELOW.

Appellant defendant cannot complain of the submission of a certain item of damages alleged to the jury, on the ground that the allegations with reference thereto were not sustained by evidence, where there was no request to the jury to so instruct.

[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 216.*]

Appeal from Common Pleas Circuit Court of Sumter County; T. H. Spain, Judge.

Action by Fannie E. Hurst against the J. D. Craig Furniture Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

The following are the exceptions to the rulings of the trial court:

"(1) Because his honor erred, it is respectfully submitted, in excluding the testimony of R. F. Haynsworth, one of the defendants, as to a conversation had between him and

purchased a one-half interest in said busi

1913.)

1. WITNESSES ( 159*)-TRANSACTION WITH DECEDENT.

In an action by the owner of a store building against a former tenant and a purchaser from such tenant of a half interest in the business carried on in such store, for damages for the removal of alleged fixtures, evidence as to whether, when the purchasing defendant bought the interest in the business, the tenant's manager, since deceased, represented the fixtures as being a part of the business was not admissible, under Code Civ. Proc. 1912, § 438, relating to testimony as to transactions with a per

son since deceased.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 629, 664, 666-669, 671-682; Dec. Dig. § 159.*]

2. TRIAL (§ 194*)—INSTRUCTIONS-WEIGHT OF EVIDENCE.

on the ground that the said testimony was incompetent under section 438 of the Code, whereas, his honor should have allowed the defendant and witness, R. F. Haynsworth, to testify as to the conversation with J. D. Craig, as the same was competent under section 438 of the Code, and relevant to the issues in this case, and said testimony was material, and probably would have changed the result of the said case.

fully submitted, in refusing to allow the de

"(2) Because his honor erred, it is respect

not fixtures;' the error being that his honor should have charged the jury that all of this property were trade fixtures, removable by the tenant during the term of his lease.

"(3) That his honor erred, it is respectfully submitted, in refusing to allow R. F. Haynsworth, one of the defendants and witness, to testify as to any conversation with J. D. Craig concerning his purchase of one-half interest in the business from the said J. D. Craig, out of which this suit arose, and holding that all such conversation was incompetent under section 438 of the Code, whereas, his honor should have allowed the witness R. F. Haynsworth to testify as to the said conversation, transaction, and agreement with the said J. D. Craig; the plaintiff, having gone into the same, testified as to said conversation and transaction, and testimony having been offered on behalf of the plaintiff as to such conversation or transaction, and therefore the witness should have been allowed to testify as to the same.

"(4) Because his honor erred, it is respectfully submitted, in charging the jury as follows: 'Now, as to that awning, that is a question of fact for you to determine whether the word "awning" includes the frame and the covering, or just the covering;' the error being that his honor should have charged the jury that the word 'awning,' as used in stock taking, included the frame, and, the stock taking being in writing, it was the duty of the court to construe the same.

"(5) Because his honor erred, it is respectfully submitted, in not charging the jury that all of the chattel property referred to in the complaint were trade fixtures, and as such were removable by the tenant within the term of his lease.

"(6) Because his honor erred, it is respectfully submitted, in leaving to the jury the determination of the class of property referred to in the complaint, but should have held that the same were trade fixtures, which, under the evidence, were removable by the tenant at any time within the term of his lease, and therefore the tenant was not liable for removing the same.

"(7) Because his honor erred, it is respectfully submitted, in charging the jury as follows: 'Now, you must take into consideration what was the intention-what was the intention of the parties? Did they intend, when they these fixtures-were fixed to the realty, to use them for the purpose of carrying

"(8) Because his honor erred, it is respect. fully submitted, in not directing a verdict for the defendants, on the ground that all of the chattels were, from their nature, trade fixtures, removable by the tenant, who put them in within the term of the lease.

"(9) Because his honor erred, it is respectfully submitted, in not directing a verdict except as to the actual value of the awning frames, there being no testimony that any of the property was other than trade fixtures put into the building by the tenant for the purpose of its business, and therefore removable by it during the term, and therefore the defendants could not be held liable for the value of the fixtures, same being the property of the defendant J. D. Craig Furniture Company, and they having the right under the law of this state to remove the same.

"(10) Because his honor erred, it is respectfully submitted, in not directing a verdict as to punitive damages, there being no evidence sufficient to sustain an action for punitive damages, the defendants merely having removed certain trade fixtures belonging to it without in any way damaging or injuring the property of the plaintiff, and therefore there was no testimony on which to base punitive damages in this action.

"(11) Because his honor erred, it is respectfully submitted, in not granting a new trial on the ground that the chattels out of which this action arose were, from their nature, trade fixtures, and removable by the tenant who put them in during the term.

"(12) Because his honor erred, it is respectfully submitted, in not setting aside the verdict and granting a new trial on the ground that there was no testimony to sustain punitive damages, and no testimony to sustain any actual damages; the property being removed being the property of the defendant J. D. Craig Furniture Company.

"(13) Because his honor erred, it is respectfully submitted, in not directing a verdict as to the allegation as to painting out the sign of the defendant J. D. Craig Furniture Company from the outside of the store building of the plaintiff, as the same was a trade fixture, and removable by the tenant during the term, and the tenant had a right to obliterate its trade-name so painted on the store building.

"(14) Because his honor erred, it is respectfully submitted, in not granting a new trial on the ground that there was no testimony showing that the defendants were in