
    Roy B. Hurd, Administrator of James K. Hurd, Deceased, vs. The Phoenix Company, a Corporation of the State of Delaware.
    Pleading—General Demurrer—Admissions—Objects Attractive to Children.
    On ruling on a general demurrer to complaint, plaintiff's allegations that defendant’s wires were strung on poles easily accessible to children, easily climbed by them, and in such manner as to tempt them, charged negligence, and were, for the purposes of the ruling, not to be controverted, leaving plaintiff to his proof on trial.
    
      (April 15, 1918.)
    Pennewill, C. J., and Boyce, J., sitting.
    
      James H. Hughes and Henry Ridgely, Jr., for plaintiff.
    
      John B. Hutton for defendant.
    Superior Court for Kent County,
    April Term, 1918.
    Case No. 25,
    April Term, 1916.
    Action by Roy B. Hurd, administrator, against the Phoenix Company, a corporation. On general demurrer.
    Overruled.
    The question raised appears in the opinion.
   Pennewill, C. J.,

delivering the opinion of the court:

Plaintiff’s declaration alleges that the defendant company maintained and operated an electric line for the transmission of electricity and electric current, along and over the public road leading from the town of Dover to the town of Harrington, and that, at a point about five hundred yards from a schoolhouse, known as “Pratt’s Branch Schoolhouse,” the said defendant company maintained a pole, upon which its electric wires were strung, and upon which pole iron spikes were placed, extending from the ground, at the base of said pole, to the wires strung on said pole; that the spikes were arranged in such manner that children of tender years could easily climb said pole, and, also, in such manner as to tempt and allure children attending school at said public schoolhouse, and passing along said public road, to climb the said pole, by means of the iron spikes; that the "wires strung on said pole were not insulated, or otherwise protected. Said declaration further alleges that, on the fifth day of January, A. D. 1916, the said James K. Hurd, who was an infant of the age of about nine years, and who was returning to his home from the schoolhouse aforesaid, climbed the said pole, and came in contact with the wires upon said pole, from which said wires he received an electric shock, and fell to the ground, by reason of which shock and fall he was injured, and afterwards, to wit, on the twenty-third day of June, A. D. 1916, died.

By his general demurrer the defendant admits, not only that the company maintained a pole, upon which electric lights were strung, and upon which iron spikes were placed, extending from near the ground, at the base of said pole, to the wires strung on the pole, but also that the spikes were arranged in such manner that children of tender years could easily climb the pole, and so as to tempt and allure children attending school at said schoolhouse, and passing along the public road, to climb the said pole by means of the iron spikes; that the wires strung on the pole were not insulated or otherwise protected; that the deceased, a child about nine years of age, climbed the pole, came in contact with the wires thereon, received a shock and fell to the ground, by reason of which shock and fall he was injured and subsequent^ died.

It seems to be held by numerous authorities that if the object which caused the injury was located at a place where the child was invited, or had a right to go, and where children are expected to be; was easily accessible, and attractive and alluring to children of tender years, the maintenance of such an object would constitute negligence. Whether all of these facts could be proved at the trial or not, they are averred in plaintiff’s declaration, and for the purposes of the case now before the court are admitted by the defendant to be true.

The plaintiff has not cited any case directly in point, so far as the facts are concerned, but they support the principle of law above mentioned. The defendant has not sought to controvert the correctness of this principle, but has endeavored to show by the authorities cited that an electric light wire suspended above the public highway, upon poles with spikes driven in them, as in the present case, is not easily accessible, and is not attractive and alluring to children. We do not know whether all the allegations contained in plaintiff's declaration are true, or whether he will be able to sustain them by proof at the trial, but being admitted to be true in the present proceeding, the court are constrained to overrule the demurrer.

The court do not say by this decision that the alleged dangerous object was easily accessible, that the pole could be readily climbed, and was attractive and alluring to children of tender years within the meaning of the turntable cases. These questions, the court think, may be properly and intelligently, determined at the trial.  