#### Jacques, Admx., Appellant, *v.*The Dayton Power & Light Co., Appellee.

(No. 1896

— Decided January 31, 1947.)

*259*Mr. Chester B. Shook, Mr. Bichará T. Carroll*and *Mr. Andrew S. Iddings,*for appellant.

*Mr. William Mills Matthews,*for appellee.

Hornbeck, P. J.

This is an appeal on questions of law from a judgment ■ dismissing plaintiff's second amended petition after a general demurrer thereto had been sustained. We hereinafter refer to the second amended petition as the petition.

Plaintiff’s action was for damages for the wrongful death of her husband who came to his death when a boom scoop came into contact with high-voltage uninsulated wires maintained and operated by defendant.

The demurrer was sustained by the Common Pleas Court upon the proposition that the petition of the plaintiff suggested her decedent’s contributory negligence, and that the inference thus produced was not countervailed by any proper.averment.

It is the claim of the plaintiff, that such conclusion was erroneous for two reasons, first, there is no sup-' port in law for the conclusion that contributory negligence may be inferred from the pleadings alone, and, second, the petition does not permit of the determination as a matter of law that plaintiff’s decedent was eontributorily negligent.

We cannot support the first contention of the plaintiff. It is altogether possible that a petition may aver such ultimate facts as there may be but one conclusion, namely, that the plaintiff was chargeable with contributory negligence which, as a matter of law, will preclude any recovery. However, such determination may be made only if and when the facts pleaded will permit of no other reasonable conclusion. If an inference may be drawn consonant with due care it must be indulged.

*260Although the demurrer was sustained on the theory ■ of the contributory negligence of plaintiff’s decedent, three questions are presented on the appeal, namely, first, what was the relationship of plaintiff’s decedent in his entrance into and upon the premises of Eby, second, was any actionable negligence chargeable against the defendant, and third, if so, was plaintiff’s decedent chargeable with contributory negligence as a matter of law.

Plaintiff insists that the action of the Common Pleas Court in sustaining the demurrer must be supported by the proper determination of all the foregoing-propositions.

The pertinent facts appearing in the petition are:

The defendant company carried high-voltage uninsulated wires over the land of Jacob and Emma A. Eby, and in a conveyance from the Ebys to the defendant. in January 1942 the defendant agreed that its wires would have a clearance above the ground on the Eby lands of not less than 25 feet.

Oh or about April 2, 1942, plaintiff’s decedent was authorized tq enter the Eby premises “by reason of a requisition issued to Charles IT. Sisson, United States marshal of the Southern District of Ohio, by the United States of America, under Act of October 16, 1941, by which the Metal Reserve Company, its servants, agents and employees, were to 'remove' certain scrap met^l located on said Eby farm, to be used for the war defense of the United States of America. That this decedent was authorized to enter said farm by the authorized agent of the purchaser of said scrap metal from the" government.

“That * f * while decedent * * * together with the driver of crane-truck to which ’ was attached a boom-scoop, was preparing to load said old scrap metal located on said Eby farm onto said truck, * * * *261in accordance with the aforesaid requisition, * * * said boom-scoop came into contact with high voltage uninsulated wires maintained and operated by this defendant corporation, *■* * causing the immediate death ■of decedent, Norman Jacques.”

The acts of negligence specified are the allowing •of the high-voltage uninsulated wires to sag to within a distance of 22 feet from the fiound in contravention 'of the-terms of the conveyance from the Ebys to the ■defendant that such wires should have a clearance of not less than 25 feet above the ground, the failure to properly supervise or inspect the wires, and the failure to post any signs or other notices by which the driver of the truck and decedent would be warned •of the danger involved.

It is urged by the defendant that, at most, plaintiff’s decedent was a licensee upon the lands of Eby *(Hannan, Admr.,*v. *Ehrlich,*102 Ohio St., 176, 131 N. E., 504; *Eckert, Admr.,*v. *Refiners Oil Co.,*17 Ohio App., 221), and that, therefore, the obligation of the defendant to plaintiff’s decedent was only to refrain from wanton, wilful or reckless misconduct likely to injure him *(Soles, Admr.,*v. *Ohio Edison Co.,*144 Ohio St., 373, 59 N. E. [2d], 138; *Keller*v. *Ohio Public Service Co.,*73 Ohio App., 530, 57 N. E. [2d], 176).

Plaintiff does not discuss this question in her brief but manifestly it is germane and essential because if defendant’s claim is correct, then the demurrer was properly sustained.

It is our judgment that, giving to the allegations of the petition a permissible interpretation, it may be said that plaintiff’s decedent was not a trespasser and licensee but that he was an invitee of Eby. It must be presumed, at this juncture, that the scrap iron which plaintiff’s decedent was about to remove from-the Eby *262premises was placed there by and with the consent and agreement of the Ebys, and the owner of the iron, his. agent, or representative had the right to remove it by any practical means of removal; and that the means-sought to be employed by plaintiff’s decedent and the-driver of the truck were customary means of loading and removing such scrap iron. It must be presumed,, until the contrary appears, also that any order made-by the federal district court authorizing the employer of decedent to enter upon the Eby premises to remove-the scrap iron was made with the knowledge of and with the full protection of the rights of the owner, Eby. Indulging the foregoing presumptions, it is logical and appropriate to conclude that plaintiff’s decedent and the truck driver were properly upon the premises of the Ebys by express or implied invitation. 29 Ohio-Jurisprudence, 464, Section 60. It is said that “licensees are persons whose presence' is not invited, but toleráted.” The test of an invitee relation is whether the person is invited onto the premises expressly or impliedly by the owner or occupier, for some purpose-of business or of material interest. *Latham*v. *Richard Johnson &*Nephew, *Ltd.*(1913), 1 K. B., 398, 82 L. J.. K B., 258, 108 L. T., 4, 29 T. L. R., 124.

Does the petition set up any specification of. actionable negligence? It is asserted that the defendant company permitted its high-voltage wires which were-uninsulated to sag to a distance of 22 feet from the-ground in violation of the teinns of the deed from theEbys, and that this sagging was of such consequence-as to cause the boom scoop to come in contact with the wires when otherwise it would have cleared them.. The conveyance-contract was made primarily for the benefit and protection of Eby and, undoubtedly, had for its purpose the protection óf not only Eby but of *263those who, at his invitation, were properly upon his' premises, from the danger of the overhead wires.

May the contract between Eby and the company be the basis of a tort action on the part of the plaintiff against the defendant? A similar question was considered in a well-reasoned opinion by Judge Vickery in *Cleveland Ry. Co.*v. *Heller,*15 Ohio App., 346, and •cases are there cited from many jurisdictions, in support of the third proposition of the syllabus, which is:

“A person who is injured upon a street railway track by reason of a defect in the street, caused by the negligence of the railway company in allowing it to remain in such unsafe condition, in violation of its contract with the city, to keep that part of the street in constant repair, may maintain an action against such railway company for the injuries thus sustained.”

That authority supports the claim that', the Eby •contract may be the basis of the .tort action of the plaintiff against the defendant on the theory that her decedent was a third party for whose benefit the contract was made. It is urged that the status of plaintiff’s decedent under the contract was not like that of one of the public in the *Heller case.*We are not able to ■make such distinction. The Eby contract was made •not only for the protection of the owner of the land but for those who by his invitation were on the land •about their business which may have been for the mutual benefit of the owner and the lessee of the land.

It is urged that it is not negligence to maintain high-voltage wires uninsulated. This is true but the allegation of negligence is not the maintenance of -uninsulated wires but the maintenance of such wires at an unsafe distance from the ground in violation of ‘the terms of the contract and the failure to inspect *264the wires, or to warn those properly on the land of the unsafe condition: The averments of the petition, undenied and uncontradicted, state actionable negligence against the defendant.

The last question and the principal assignment of' error discussed is the contributory negligence of plaintiff’s decedent. Both parties cite, discuss at great length and rely upon the case of *Henrick, Admx.,*v. *Marion-Reserve Power Co.,*141 Ohio St., 347, 48 N. E. (2d), 103. Let us analyze that case not only to learn what it adjudicates but also what it does not determine. The judgment of the Supreme Court was manifestly properly based upon the- proposition that the-facts appearing afforded no substantial support for an inference of any negligence against the defendant company. It did not rest upon any conclusion that plaintiff’s decedent there was chargeable with contributory negligence as a matter of law. The *Hetrick case*is authority to the effect that the trial court there-erred in submitting the cause to the jury and that the motion for a directed verdict interposed at the conclusion 6f plaintiff’s evidence and at the conclusion of all the evidence should have been sustained. Whether the appellate court which entered judgment for defendant based its conclusion in part upon the contributory negligence of plaintiff’s decedent does not appear from the record, but certain it is that the judgment of the Supreme Court was grounded upon the fact, which is stated in the last sentence of the opinion, that “the plaintiff failed to prove any actionable negligence on the part of the defendant and the judgment of the Court of Appeals therefore is correct and should be affirmed.” But it is contended that Judge Bell, on page 356 of the opinion, said:

“This record discloses that both telephone and light wires carry electrical energy; the difference-*265•is only in the'intensity of the current. We think that the presence of these suspended wires, in and of them- - selves, is a warning to the adult public of potential •danger.”

That statement was not carried into any proposition of the syllabus, was not necessary to the judgment .and did not require the conclusion that mere failure to refrain from coming in contact with wires strung along poles is contributory negligence as a matter of law. The difference is manifest in the • dangerous nature of a telephone wire and a wire charged' with •electrical energy used for power.

The rule is that generally the contributory negligence of one who receives an injurious shock or is killed by the sagging of an electric wire over the highway is for the determination of the jury. Annotation, 84 A. L. R., 694; 18 American Jurisprudence, 516, Section 120; 29 Corpus Juris Secundum, 606, Section 53.

In *Ohio Power Co.*v. *Fittro, Admx.,*36 Ohio App., 186, 173 N. E., 33, the defendants, distributors of electrical energy,' ran lines from Mt. Victory to West Mansfield on a public road". An automobile struck one of the poles along such line, broke it off and caused the wires to sag to within 5 to 6 feet of the ground. One man entering a ditch along the side of the road to render assistance came in contact with a- wire, and was electrocuted. Upon notice, a defendant shut off the current and thereafter the defendant was notified that the wires were clear and ten feet from the ground, whereupon the current was again turned on.' The defendant at the time made no further examination of the wires and placed no warning signs about them. Plaintiff’s decedent learning of the death as the result of the first accident, reached the scene of the accident about six o’clock in the evening, went to the east edge *266of the road in close proximity to the wires and was electrocuted by an arc of electricity from the wires. Upon those facts the court reannounced the well-recognized principle that a verdict for plaintiff may not be disturbed, unless it is manifestly against the evidence, where different conclusions are possible under conflicting evidence of plaintiff’s contributory negligence, and held that the deceased could not, under the facts appearing, be held, as a matter of law, chargeable with contributory negligence.

So, in the instant case, reasonable minds might differ under the facts appearing in the petition whether plaintiff’s decedent exercised due care at and immediately prior to the time .he was killed. Whether he knew of the presence of the wires, and, if so, should have known that they were highly charged with electricity, whether he should have known that the boom scoop was about to strike the wires, all are questions which must be determined in the light 'of the obligation of a reasonably prudent man under the circumstances appearing. Plaintiff’s decedent was not the operator of the truck, although he was in charge of the boom scoop and was directing the driver of the truck in his movements. Decedent’s position on the truck, whether he was facing the wires or whether there were any facts which would account for his failure to observe the wires, does not appear but contributory negligence is never presumed. On the contrary, the presumption is that plaintiff’s decedent exercised due care and was not at fault.

We cannot support the claim that the knowledge of the presence of suspended wires in and of itself was sufficient to charge plaintiff’s decedent with the further knowledge, that they were dangerous instrumentalities and charged with a high voltage of electrical energy.

*267We are cited to numerous cases to the effect that ■one who has knowledge óf a dangerous situation may not disregard it and, if he does so, is chargeable with •contributory negligence. Óf course, this is a sound principle, but the cases cited all will permit of the ■differentiation between a condition which, in the ■exercise of ordinary care, may or may not have been ■known to be dangerous.

We briefly consider some of the cases cited in defendant’s brief as authority for establishing the contributory negligence of plaintiff’s decedent. In *Stackpole*v. *Pacific Gas & Electric Co.,*181 Cal., 700, 186 P., 354, it is said in the opinion that “both Price and •his foreman k,new that the wires were power wires” which caused the death of Stackpole, and that it was •apparent “that the proximate cause of the decedent’s ■death was not any negligence on the part of the defendant, but was the negligence of Price.” A nonsuit there was granted on the second ground, namely, that •no negligence on the part of the defendant appeared.

In *Boudreaux*v. *Louisiana Power & Light Co.*16 La. App. 664, 135 So., 90, plaintiff’s suit was dismissed on the ground that there was no negligence in the maintenance of the wires although they were uninsulated. The situation was similar in *Morton’s Admr.*v. *Kentucky-Tennessee Light & Power Co.,*282 Ky., 174, 138 S. W. (2d), 345, and *Buell, Admx.,*v. *Utica Gas & Electric Co.,*259 N. Y., 443, 182 N. E., 77.

The judgment in *Hayden*v. *Paramount Productions, Inc.,*33 Cal. App. (2d), 287, 91 P. (2d), 231, was ^grounded upon the proposition that defendant company was not chargeable with any negligence proximately causing plaintiff’s injuries but that they were caused ■solely by the negligence of the plaintiff’s employer in ¿bringing its erane into a position where it could touch *268or come in dangerous proximity to the high voltage wires which were in plaintiff’s view and to which were attached warning signs, ail of which was within the knowledge of the employer.

In *Simons*v. *Pacific Gas & Electric Co.,*64 Cal. App., 74, 220 P., 425, it was manifest that plaintiff’s decedent knew that defendant’s 60,000-volt transmission line rah near decedent’s well. Notwithstanding that knowledge, decedent, while repairing his well, pulled a pipe out of the well, which pipe coming near the wires caused electricty to arc, resulting in the death. A demurrer was sustained to plaintiff’s petition.

• In *Sweatman*v. *Los Angeles Gas & Electric Corp.,*101 Cal. App., 318, 281 P., 677, there was no négligencé whatever on the paid of the corporation in the maintenance of its highly charged electrical wires but plaintiff’s decedent from the fifth floor of a building-under construction caused a metal rod to be extended out a window, over and into contact with the uninsulated wire. It was held that that occurrence was cyie which, in the exercise of reasonable care, the defendant company could not have anticipated.

In the instant case, the demurrer to the petition should have been overruled. The judgment is reversed and the cause remanded with instructions to overrule' the demurrer.

*Judgment reversed.*

Wiseman and Miller, JJ., concur. .