State Ex Rel. Stansfield v. Chesapeake & Potomac Telephone Co.

¹²² Urner, J., delivered the opinion of the Court. The appeal in this case is from a judgment entered on demurrer to a declaration which alleges in substance that the defendant companies maintained in one of the highways of Howard county, passing through Ellicott City, a series of poles supporting wires carrying electric current used for telephone and lighting purposes, and that one of the poles was located in front of the dwelling occupied by Harry Stansfield and his family; that projecting from this pole were iron spikes adapted and intended by the defendants for use in ascending the poles, and that the spikes, being conveniently arranged for such use, operated as an invitation to the public, and more particularly to the owners and occupiers of the abutting properties to ascend the pole by means of the spikes, whenever they might have occasion to do so for any proper purpose; and especially for the preservation of the life of animals or human beings, or for the recovery of personal property, and that, as arranged for such use, the spikes constituted also a representation that the ascent of the pole might be accomplished with safety; that the maintenance of such a series of spikes on a pole used for the support of wires carrying a high tension current of electricty, in a street or highway of an incorporated city, was negligent, unusual, antiquated, unnecessary and improper; that on March 25, 1913, a kitten belonging to the said Harry Stansfield, and a favorite pet of his infant children, climbed said pole and remained thereon, and, his children being greatly distressed at the loss of the kitten, the said Harry Stansfield relying upon said invitation and representation of the defendants, ascended the pole by means of the spikes for the purpose of recovering the kitten and satisfying his children; that on previous occasions, as the defendants well knew, various. persons, including the said Harry Stansfield, had been accustomed to use the spikes to climb the pole in order to recover personal property and for other purposes; that the defendant negligently permitted the insulation on certain of ¹²³ their wires attached to the pole and carrying a high tension current of electricity to be insufficient, although it appeared sufficient to persons who, like the said Harry Stansfield, were not familiar with electricity; and that the defendants neglected to warn him of the concealed danger, or to' warn the public by sign or notice against climbing the pole by means of the spikes; that the said Harry Stansfield in ascending the pole in reliance upon said invitation and representation of the defendants, and acting (as he reasonably supposed) in accordance with the intention of the defendants in placing the spikes on the pole, and being ignorant of the hidden danger caused by the insufficiency of the insulation and l>v the high tension current, and without any fault or negligence on his paid, accidentally came in contact with the insufficiently insulated wires and in consequence of such contact was instantly killed. Hpon the case thus stated the widow and children of ■ the deceased seek to recover damages for the loss they have sustained by this unfortunate accident. The injury .for which the suit was brought having occurred to- one who had reached the place of danger' by climbing the pole maintained by the defendants for the very purposes of suspending the wires at a suitable and safe elevation above the highway, the question to he determined is whether the declaration shows any violation of duty on the part of the defendants with reference to a person thus situated.

While the pole and wires were located on and over a public thoroughfare they were the defendants’ property and were necessarily subject to their control in order that their obligations to the public might he performed and that their own interests might he protected. The theory of the suit is that in providing a permanent and convenient means of ascent the defendants impliedly invited the public to use the pole for such purposes as the one which led to the accident. In our opinion the principle of implied invitation is not applicable to the case presented. There was no community of interest ¹²⁴ between the defendants and the injui’ed party which induced his visit to the place where he came in contact with the wires.

The principle invoked does not apply to those who receive injuries on premises they have entered from motives which have no relation to the business or interest of the proprietor. Benson v. Baltimore Traction Co., 77 Md. 535; Kalus v. Bass, 122 Md 467; Heskell v. Auburn Light, Heat & Power Co., 209 N. Y. 86 ; Plummer v. Dill, 156 Mass. 426 ; Pur tell v. Philadelphia Coal Co., 256 Ill. 110 . The most favorable view of the case from the standpoint of the declaration is that the defendant passively permitted the use of the pole by the deceased and others for the purposes mentioned. This might relieve them of the character of trespassers, but would leave them in the position of mere licensees to whom the defendants would owe only the duty to avoid exposing them wilfully to the risk of injury.

Heskell v. Auburn Light, Heat & Power Co., supra; Fitzpatrick v. Glass Mfg. Co., 61 N. J. Law, 378; Rooney v. Woolworth, 74 Conn. 720; 15 Cyc. 475. By the decision of this Court in Benson v. Baltimore Traction Co., supra, the principle of implied invitation was held not to be intended for the protection of “those who go where they are not invited, but merely with express or tacit permission, from curiosity or motives of private convenience in no way connected with business or other relations with the occupant.” In Heskell v. Auburn Light, Heat & Power Co., supra, a telephone company, without previous permission, attached its wires to the