Hatch v. McCloud River Lumber Co.

[112]

SHAW, J.

This is an action to recover damages to the plaintiff Emma F. Hatch, wife of the plaintiff Kimball I. Hatch, arising from an injury alleged to have been caused by the negligence of the defendant. A demurrer to the complaint was sustained in the court below, and judgment rendered accordingly. The sole question presented by this appeal is the sufficiency of the complaint.

On May 29, 1900, the defendant let to the plaintiff Kimball I. Hatch a dwelling-house and the lot on which it stood. The plaintiffs immediately took possession and remained in the occupancy of the premises until the injury occurred, which was on October 7, 1901. At the time the house was leased an electric-light pole was standing in the street, on the sidewalk, in front of the lot. From the top of this pole a stay-wire or rope extended to the ground, within the lot so leased, at a point two and a half feet inside of the front line thereof, where it was fastened to an anchor fixed in the earth. This wire inclined at an angle of forty-five degrees from the top of the pole to the ground, and crossed the front line of the lot about two and a half feet above the surface of the ground. The plaintiffs knew of the existence and position of this wire at the time of the lease. It was of course plainly visible in the daytime. The pole and wire belonged to the defendant, constituted no part of the leased premises, and was under the control of the defendant as a part of an electric-lighting system maintained by it in the town where the premises were situated. At the point where the wire was fastened to the anchor, and a few inches above the ground, several sharp points or ends of wire protruded, which were dangerous to any person who might come in contact with them. They were so small and so near the ground that they were not easily discernible.

On the seventh day of October, 1901, between seven and eight o’clock in the' evening, the plaintiff Emma F. Hatch, while leaving the premises, came in contact with the wire rope, was thereby tripped and caused to stumble and fall over the same, and in so doing struck the protruding points aforesaid, and was thereby injured severely. She was not aware of the existence of said points until she came in contact with them, but she knew of the wire, and it is alleged that at the time she was “using all due care to avoid the same.”