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Wytupeck v. City of Camden

Decided: December 16, 1957.

HENRY WYTUPECK, A MINOR, BY HIS FATHER AND GUARDIAN AD LITEM, JOHN WYTUPECK, AND JOHN WYTUPECK, IN HIS OWN RIGHT, PLAINTIFFS-RESPONDENTS,
v.
CITY OF CAMDEN, A MUNICIPAL CORPORATION, DEFENDANT-APPELLANT



On certified appeal to the Appellate Division from the Law Division of the Superior Court.

For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs and Francis. Opposed -- None. The opinion of the court was delivered by Heher, J.

Heher

There was judgment for the plaintiffs on a jury verdict rendered in the Law Division of the Superior Court in this action for negligence in the condition and use of the defendant city's lands; and the case is here by our certification of the city's appeal to the Appellate Division of the Superior Court.

The basic question raised concerns the sufficiency of the evidence to sustain the finding of a breach of "duty owing" by the city to the infant plaintiff in these circumstances:

The mishap befell the infant May 15, 1954, on the city's lands comprising 14 acres plus, known as "Puchach Run," situate along Lenox Road and River Road, in the Delair section of Pennsauken Township, in Camden County, used by the city since 1924 for the maintenance and operation of five wells and water-pumping stations to supply the needs of its own inhabitants and residents, west of Cooper Creek. The well field was bounded on the north by River Road; on the east by Lenox Road; on the west by Delair and Engard Avenues; and on the south by a wooded area, and was, it seems to be conceded, "almost entirely surrounded by family residences of the townspeople." Four of the wells, numbered 1 to 4, were spaced along the easterly boundary of the tract, and No. 5 was located near the westerly boundary. Each of the wells was enclosed in a brick well house or pumping station. The Delair Elementary School was adjacent to the northwest section, across Delair Avenue. The field was not fenced or enclosed or "posted" against trespassing, and it had foot paths. The wells were operated by electric power, provided by a local power company through "high power lines" running along the outside boundary of the city's lands, and each of the well pumps was equipped with an outside "bank" of three transformers, to reduce the voltage of the high power lines to that required for the

operation of the well pumps. The transformers were adjacent to the well houses, enclosed by an eight-foot high steel "wire mesh or chain link fence with two inch diamond shape openings, commonly referred to as a 'cyclone' fence"; the fences were built on a "concrete platform supporting the transformers as well"; the "top of the fence had the sharply pointed ends of the wire projecting upwards," and on "each side of the fence ever since its erection were signs with 6 inch letters reading 'Danger -- High Voltage'"; the chain link fence had a "top rail" and "2 inch mesh." The "only means" of ingress and egress to the transformers within the fenced or enclosed area "was through a gate which was always chained and locked."

Well house No. 1, the largest of the five, was used as an office for the pump attendants; it was located near River Road, the northerly boundary of the city's land; well No. 4, where the accident occurred, was situated at the southeast corner of the tract; the remainder of the land was "rough and unimproved including wooded areas"; adjacent on the east is a creek known as "Puchach Run"; there was a "sharp declivity, heavily wooded, running from the City's lands down to the Run," and the exhibits reveal a roadway along the easterly boundary providing "access to stations 2, 3 and 4." And there was evidence tending to show, using counsel's summary, that "[t]wo footpaths joined near the southeast end of the tract close to pumping station No. 4, which were used by infant plaintiff and others in entering on to defendant's premises at this point before continuing their journey past pumping station No. 4 and along the defendant's road or other routes on their way to Delair School or elsewhere"; that "[t]here were other foot paths across the field, used by the infant plaintiff, the City's pump tenders, townspeople and school children in the unrestricted use of the land," and this "unrestrained use extended in point of time as far back as 1924, when the wells were installed," and continued "up to the period when the accident occurred," and "embraced, in addition to pedestrian traffic, * * * recreational activities for the young and

old, such as playing baseball, fishing, picking blueberries, gunning, running dogs, hide-and-go-seek, tag, cowboys and indians" and the various games and diversions of children throughout the year according to season; there were two baseball diamonds, one used by "organized players" at an earlier time, and both on occasion later on by the infant plaintiff and other children for "small-fry baseball" in "close proximity" to pump house No. 4. A long-time resident near pump house No. 4, testified that "that was our playground."

The city concedes that there was evidence indicating that "some children living east of the Puchach Run, going to and from the Delair School situate to the West of the City's lands, would take a short cut through the woods across [its] land and near Well No. 4," and there "was also some testimony that in recent years a small group of children played occasionally in the open field to the west of Well No. 4"; but it is said that it was "established, without contradiction or dispute, that no one was ever known or seen to have played against or on the fence enclosing the transformer, or on the well house, or inside the fenced-in area"; and the insistence is that "[e]ver since the pumping stations were built and the transformers installed all the children knew the installation was dangerous," and in addition to the "warning signs they were warned by the City's employees, their parents or their playmates to stay away from the fences surrounding the transformers because they were dangerous and they might be hurt."

But the plaintiffs say that the fence "lacked the usual three-strand barbed wire extension set at a 45 degree angle on top, and was condemned by plaintiffs' expert engineering witnesses at the trial as dangerous, unsafe and inadequate, not being constructed in conformity with standard, accepted and recognized engineering practices," and the "signs 'Danger High Voltage' attached to the fence * * * were meaningless to the infant plaintiff, a third-grade school child, who did not know what 'voltage' meant or that there was electricity inside the fence."

While at play near pump house No. 4, with his younger brother and another boy, on the day named, Saturday, May 15, 1954, at about 7 o'clock in the evening, the infant plaintiff, then nine years of age, fashioned an "airplane" from a piece of paper he had received at school which finally glided within the wire enclosure containing the transformer and there came to rest, on the ground. He dissuaded his companions from climbing the fence, fearing a fall, and, bent on retrieving the lost plaything, he scaled the fence by hoisting himself upward through finger holds in the wire-mesh openings and, when he placed a leg over the top of the fence, preparing to descend into the enclosure, contact was made with an uninsulated wire joined to the transformer, charged with 4,000 volts of electricity, and he suffered grievous burns and injuries, of which more hereafter.

Motions for dismissal made when plaintiffs' proofs were in and at the close of the case were denied; and the jury assessed the infant plaintiff's damages at $150,000, and his father's damages per quod at $30,000, later reduced to $20,000 by Judge Martino on motion for a new trial. The award to the infant plaintiff was sustained.

I.

The essence of the argument is that there is an utter lack of evidence of a default in the exercise of a "duty of care" laid upon the city in the circumstances; the infant plaintiff was a trespasser, and the injury "did not occur in the particular place or limited area which" it might be conceded "for the sake of argument was proved by the plaintiff to be the subject of constant trespassing," but rather "in a specifically confined area in which the defendant never discovered the plaintiff nor knew nor should have known of any previous trespass"; there was "no proof whatsoever of any play against the fence, on the fence, or over the fence, or even upon the well houses adjacent to the fence"; the place where the "condition is maintained is" not "one upon which children trespass or are likely to trespass"; trespassing on "the adjacent areas" of the city's land "outside

of the fenced-in area certainly cannot be said to be the same as trespassing inside the fence"; the accident here "did not occur in an unprotected area" of the city's "land which was the subject of previous trespassing or license," and "assuming the transformer and its connecting wires to be a dangerous agency," the city had enclosed it "with an 8 foot high cyclone fence which, to no one's knowledge to the contrary, had been a successfully complete barrier for thirty years"; it was "the child's irrepressible sense of bravado and his agility" that "moved him to climb over the 8 foot high fence placed there by the City to protect everyone, adults or children, from coming in contact with the dangerous agency" and, adverting to the duty of care "in proportion to the foreseeable risk," the question ...


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