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Diglio v. Jersey Central Power & Light Co.

Decided: February 14, 1956.


Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.


Although the modern inclinations of teenagers and adults have become somewhat unpredictable, the natural propensities of children of tender years continue to be reasonably foreseeable. Their instincts have been too repeatedly observed over the ages to elude common knowledge. Their responsiveness to allurement has existed before the day of the Trojan horse; their proclivity to climb is old enough to have been a contributive factor to the conception of the Darwinian theory; and, as Lord Sumner put it, they are little barbarians who in the wantonness of infancy are prone to trespass. Those incarnations of childhood circulated in the infant plaintiff in the present action at the age of nine.

For a span of years preceding the occurrence of the unfortunate mishap to which the present case relates, the defendant company has been the owner and occupier of a parcel of land in the Borough of Allenhurst, Monmouth County, which it has utilized in the pursuit of its business for garage and storage purposes. Along the boundary line of the property the defendant erected a relatively high fence, the characteristics of which at the scene of the accident are vividly portrayed by the photographic exhibits thereof.

The fence, spoken of as a cyclone fence, is itself composed of interwoven sturdy wire in a frame of iron pipes or rods, with sharp pointed ends of wire projecting upward from the top. Particularly noticeable in the exhibits is the horizontal suspension above those spikes of three separated strands of barbed wire. One's attention soon concentrates on the observance in the photographs that the extension of the fence is interrupted at points where poles rise perpendicularly from the ground, to which poles the fence is attached by iron bars. Significantly, those bars are so horizontally placed across the poles at such successively elevated locations

thereon as to "form a pattern similar to a ladder up the side of the pole."

The fence was obviously dangerous to climb over and probably made so intentionally to prevent thieves, prowlers, or other ill-intentioned persons from entering the defendant's property.

Notwithstanding the threatening composition of the fence, the judicially authenticated statement of facts informs us that:

"The proof at the trial discloses that this fence has circumscribed the defendant's property for many years and that during all of those years the children have been permitted to play in and about the defendant's property, apparently at will and without molestation or restriction. The permissive activities of the children included using the wall of the defendant's building located within the fenced area for handball purposes, playing otherwise in and on the property within the fenced area, climbing and playing upon the cement wall which is constructed as a base below the fence in question and climbing over the fence. The uncontradicted testimony disclosed that these play activities were engaged in while employees of the defendant-company were present and even while the manager was present, and that during all of that time the children had never been chased therefrom."

On December 28, 1953 the infant plaintiff while at play was climbing up the fence on the horizontal bars, slipped, and in an impulsive endeavor to spare herself from falling, grasped one of the wires at a point where it was sharply barbed, and a gash requiring 16 sutures to close was torn in the palm of her hand.

The judge of the Monmouth County District Court resolved that in the circumstances the defendant was legally responsible for the injurious consequences of the mishap, and awarded compensatory damages to the infant plaintiff in the sum of $750 and to her mother in the amount of $107 disbursed by her for medical attendance. At the trial the defendant, after unsuccessfully moving for a dismissal of the alleged cause of action, rested without introducing any evidence in contradiction of the asserted facts. It is at the request of the defendant that we review the legal and factual propriety of the judgment.

The law appropriately to be applied to the occurrence of such injurious accidents suffered by trespassing infants in relation to the liability of the owner or occupier of the land has been a subject of acute discussion, judicial and otherwise, ever since the rendition of the decision of the United States Supreme Court in the so-called ...

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