Crosby v. Savannah Electric c. Co.

Full title: CROSBY, by Next Friend v. SAVANNAH ELECTRIC POWER COMPANY

Court: Court of Appeals of Georgia

Date published: Jul 14, 1966

150 S.E.2d 563 (Ga. Ct. App. 1966)

150 S.E.2d 563

Opinion

42091.

ARGUED JUNE 10, 1966.

DECIDED JULY 14, 1966. REHEARING DENIED JULY 28, 1966.

Action for damages. Chatham Superior Count. Before Judge Harrison.

W. Ward Newton, for appellant.

Bouhan, Lawrence, Williams Levy, Frank W. Seiler, E. Pomeroy Williams, for appellee.

1. A petition alleging that a fifteen-year-old boy, with the mind of a child eight or nine years old, climbed a power pole to retrieve a balloon with which he and other children had been playing on a vacant lot adjoining which the pole was located, and in so doing became injured when he took hold of an uninsulated wire leading from the transmission line to the transformer box, does not set out a cause of action against the power company.

2. The child was a trespasser in climbing the pole, though it may have been the custom of children to play in its vicinity on the vacant lot.

3. The use of uninsulated wires, coated with a dark weatherproofing material, in its transmission lines and the line leading into the transformer, some 20 feet above the ground, is not a mantrap and does not constitute wilful and wanton negligence as against a trespasser whose presence was not known.

4. Though a provision in a city ordinance granting the defendant a franchise required it to insulate its wires, failure to do so resulted in no breach of duty to the plaintiff, a trespasser, unless his presence on the pole was known.

5. Presence near the pole of pipes to the fuel oil tanks of another, and of braces on the pole for supporting a meter box, not being "hooks or prongs" intended for use in climbing, do not come within the proscription of an ordinance prohibiting hooks and prongs at heights of less than eight feet. The defendant is not liable for an injury resulting from an unintended use of the pipes and meter box braces.

6. To be effective and give rise to some duty to warn the plaintiff of impending danger in climbing the pole, it must appear that the owner had actual knowledge of the trespasser's presence thereon.

ARGUED JUNE 10, 1966 — DECIDED JULY 14, 1966 — REHEARING DENIED JULY 28, 1966 — CERT. APPLIED FOR.

Rodney Crosby, through his mother, Mrs. Lillian Crosby, as next friend, asserting himself to be a child fifteen years of age and retarded, having the mental capacity of a normal child eight or nine years of age, brought suit against Savannah Electric Power Company, alleging that he had received serious injuries when he climbed one of the defendant's power poles located near the Starland Dairies on DeSoto Avenue in Savannah, from which power was supplied to Starland Dairies. He alleged that he, together with several younger children, had been playing on a vacant area of the Starland Dairies property and that a helium filled balloon of one of the children escaped and became caught in defendant's power lines. Seeking to recover the balloon, plaintiff climbed the pole, near which it was lodged, by means of three iron pipes to the fuel oil tank of Starland Dairies and located about one foot from the pole, a meter box a little further up and on the opposite side of the pole, a drain pipe on the building of Starland Dairies, two ceramic insulator knobs attached three to four feet above the meter box, and the parapet of the dairy building. These enabled him to reach a point on the pole just below the high voltage wires where a transformer box was attached, approximately twenty feet above the ground. The wires into the transformer box were uninsulated and carrying 2,300 volts. He grasped a wire with his left hand, suffered severe burns and fell to the ground.

It was alleged that the defendant could and should have known that children of the neighborhood customarily played in the vacant area near the power pole and that it should have anticipated that this child would have used the pipes, meter box, drain pipe, etc., as a means of climbing the pole and thus come in contact with the high tension wires.

The franchise of defendant, in the form of a city ordinance, was pleaded, by which it is provided that the power company shall at all times have its wires and electrical conductors thoroughly insulated and that they shall be maintained to the satisfaction of the mayor and aldermen, and it was alleged that the high tension wires, including the feed wire into the transformer which plaintiff's son grasped, were not insulated but were coated with a dark weather-proofing material. Another ordinance was pleaded which prohibits the placing or leaving of hooks or prongs in any pole within eight feet of the surface of the ground. It was alleged that the supports for the meter box constituted "hooks or prongs" within the meaning of the ordinance, and that these, in conjunction with the pipes to the fuel tank of Starland Dairies and the drain pipe from the roof of the Starland building amounted to a ladder arrangement by which young children could climb to the dangerous, high voltage wires.

Plaintiff asserted that the use of uninsulated high voltage wires, covered with a black or dark weather-proofing material, and the placing of the meter box brackets on the pole at a point just above the height of the fuel pipes, making it possible for the pole to be climbed by their use, constituted a mantrap and that in the context of the other facts alleged, failure to warn plaintiff of his danger constituted wilful and wanton negligence.

The petition was brought in three counts. The first count, alleging that plaintiff was a licensee, was based upon allegations of the existence of a mantrap and of wilful and wanton negligence. The second, not alleging plaintiff's status, sought recovery based upon defendant's alleged failure to exercise ordinary care. The third count alleged that plaintiff and defendant had equal rights of access in the area of the pole, that he was an invitee and that defendant had failed to exercise ordinary care for his safety.

To the sustaining of a general demurrer to all counts of the petition plaintiff appeals.

EBERHARDT, Judge.

1. Plaintiff's status. It is contended by the defendant that the allegations of the petition show plaintiff to have been a trespasser. We agree.

In determining the status of a person, that is to say, whether he was an invitee, a licensee or a trespasser, neither his age nor his capacity, mental or physical, is a factor for consideration. Savannah, Fla. c. R. Co. v. Beavers, 113 Ga. 398 ( 39 S.E. 82); Atlanta West Point R. Co. v. West, 121 Ga. 641, 646 ( 49 S.E. 711); Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752, 753 ( 92 S.E.2d 720). Consequently, the determination here must be without reference to the fact that plaintiff was a boy fifteen years of age with the mentality of a normal child of eight or nine years.

There are no allegations of invitation to the plaintiff by the defendant, or of the extending to him of permission to climb its power pole. On demurrer, the petition must be construed in the light of these omissions as well as of the averments. Houston v. Pollard, 217 Ga. 184 ( 121 S.E.2d 629); Strother v. Kennedy, 218 Ga. 180, 186 ( 127 S.E.2d 19); Henderson v. Baird, 100 Ga. App. 627, 633 ( 112 S.E.2d 221). It must be assumed that there was neither invitation nor permission extended.

A trespasser is one who, though peaceably, wrongfully enters upon the property of another. In the context here it is one who wrongfully goes upon or climbs the pole of the defendant; or, to state it differently, one who, without authority or permission from the owner, does so. Permission or consent to climb the pole can not be implied, even if the owner may have knowledge that it was customary for children to play in the area where it was located. Rowland v. Byrd, 57 Ga. App. 390 ( 195 S.E. 458). Nor would it matter that the children may have been licensees as to the ground where they played, for extension of permission (express or implied) by the owner of the ground to play upon it could not include an extension of permission by the owner of the pole to climb it. Cf. Piggly Wiggly Macon, Inc. v. Kelsey, 83 Ga. App. 526 ( 64 S.E.2d 201), and Smith v. Jewell Cotton Mill Co., 29 Ga. App. 461 (2) ( 116 S.E. 17), where it was held that "[T]he invitee may not wander at will, without further invitation, to out-of-the-way or dangerous places on the premises, or use parts thereof for purposes wholly disconnected from and in no way pertaining to the business in hand or the objects of the invitation. . ." It could not be assumed that a permission to play upon the land area in the vicinity of the pole would extend to the climbing of the pole to highly dangerous wires some twenty feet above, even if the land and the pole were under common ownership, and much less so when it appears, as here, that the land and the pole were under separate ownership.

"A power company constructed over the land of another, with his consent, its transmission line. The wires were three in number, strung to poles at a height of 22 feet from the ground. The wires passed over a sweetgum tree, the top of which had been cut out to prevent contact of the wires with the tree. The wires were not insulated, and carried an electrical current of high voltage. The tree had sometimes been visited by children for the purpose of procuring the gum which exuded from cuts or abrasures on the tree, but the power company's officials had no knowledge of this. A thirteen-year-old boy, unusually well-grown for his age, though warned by his father some months previously of the dangerous character of the wires, climbed the tree in search of gum, came in contact with the wires, and was killed. Held, that in a suit for damages for the alleged wrongful death of the boy, the power company is not liable." Brown v. Panola Light c. Co., 137 Ga. 352 ( 73 S.E. 580). A similar case is Bridges v. Georgia Power Co., 39 Ga. App. 400 ( 147 S.E. 589), though it does not appear that the child had been previously warned of the danger, and the same result was reached. Another is Smith v. Georgia Power Co., 43 Ga. App. 210 ( 158 S.E. 371), where the facts are similar and the attractive nuisance or "turntable" doctrine was invoked, but the court held no liability to exist. In Mobley v. City of Monroe, 37 Ga. App. 364 ( 140 S.E. 516), a pole carrying high voltage wires was located near a water tower. An eleven year old boy climbed the tower and in descending his hand or arm came in contact with one of the wires, as a result of which he fell to the ground and died. Again the attractive nuisance doctrine was invoked, but the court held no liability to exist. In Scott v. State Mut. Life Ins. Co., 24 Ga. App. 232 ( 100 S.E. 639), a ten-year-old boy was out picking blackberries and returning along a well used pathway on land not owned by the defendant, stumbled and in falling reached out and caught one of defendant's sagging wires, receiving severe burns. Again the sustaining of a general demurrer was affirmed.

In Butler v. Brogdon, 110 Ga. App. 352 ( 138 S.E.2d 604), a six-year-old child went upon premises where a building operation was in progress and was burned by a raw, bare, uninsulated live wire alleged to have been left over the weekend in an inherently dangerous condition, and the sustaining of a general demurrer was affirmed.

In each of these cases the child was, expressly or by necessary implication, held to have been a trespasser (in any event no more than a bare licensee, where the rule is the same) to whom no duty was owed save that of not luring him into a mantrap or doing him wilful and wanton harm. Leach v. Inman, 63 Ga. App. 790 ( 12 S.E.2d 103).

Mantraps. Did the uninsulated wire, covered with a dark weather-proofing substance, leading from the high voltage transmission line into the transformer box constitute a "mantrap" within the meaning of this rule? We think not.

The doctrine of mantrap or pitfall is rested upon the theory that the owner is expecting a trespasser or a licensee and has prepared the premises to do him injury. Mosley v. Alabama Power Co., 246 Ala. 416 ( 21 So.2d 305). A typical example is the setting of a spring or trap gun to stop or prevent depredations by animals or humans, as in Wilder v. Gardner, 39 Ga. App. 608 ( 147 S.E. 911). In that situation the owner expects that a trespasser will come, and deliberately sets a trap designed to do injury. It may result from the knowledge on the part of the owner of the existence of a dangerous or hazardous condition coupled with a conscious indifference to the consequences, so that a deliberate intent to inflict injury is inferable ( Louisville Nashville R. Co. v. Young, 112 Ga. App. 608, 613 ( 145 S.E.2d 700)); or from a dangerous condition hidden with sufficient cover to obscure it or to render it unobservable to one who approaches it. Cf. Bohn v. Beasley, 51 Ga. App. 341 ( 180 S.E. 656), and see Fuller v. Louis Steyerman Sons, Inc., 46 Ga. App. 830 ( 169 S.E. 508). The hazard is latent or concealed. Central of Ga. R. Co. v. Lawley, 33 Ga. App. 375 (4) ( 126 S.E. 273).

Our research has revealed few cases in which the situation considered was held to have been a mantrap. Other than those above cited, are Rollestone v. Cassirer Co., 3 Ga. App. 161 ( 59 S.E. 442), in which the customer of a bar, being in an intoxicated condition, leaned or pulled upon a top-heavy unbalanced bar counter, in a state of unstable equilibrium, causing it to fall onto and injure him. While it was asserted that this situation presented a "hidden peril" so imminent as to require warning to the customer, it is to be kept in mind that he was not a trespasser but a licensee, and that his presence was known to the proprietor before the occurrence.

Another situation is where the power company and the owner of a sawmill knowingly permitted children to play on a sawdust pile that was accumulating under a high voltage uninsulated electric line and took no steps to alleviate the dangerous condition or to prevent the continued play when the sawdust pile had built to a height just under the line. There were allegations of knowledge that the children had been and were customarily playing under the wire until it reached a height enabling one of them to reach up and take hold. From this, a conscious indifference and resulting intent to injure might have been inferred. And again, the children were not trespassers, but licensees whose presence was known. Clinton v. Gunn-Willis Lmbr. Co., 77 Ga. App. 643 ( 49 S.E.2d 143).

Others are: Central of Ga. R. Co. v. Ledbetter, 46 Ga. App. 500 ( 168 S.E. 81) involving an unlighted opening in a walkway from the dock to ships provided for people to get on or off the ship, but see Kinnebrew v. Ocean Steamship Co., 47 Ga. App. 704 ( 171 S.E. 385); and Spindel v. Gulf Oil Corp., 100 Ga. App. 323 ( 111 S.E.2d 160), where a rope was stretched across an entrance way in a shopping center at a height and in a manner to make it unobservable to a boy who rode into it on a bicycle. He was not a trespasser, and the court observed that it was not necessary to determine whether he was an invitee or a licensee, since reasonably his presence should have been anticipated. In Etheredge v. Central of Ga. R. Co., 122 Ga. 853 ( 50 S.E. 1003) there is indication that a ditch opened near a path, generally used and partially hidden from sight, might, as to those using the path, constitute a hidden peril. However, in that case since the child wandered from the path and at some distance away feel into the ditch it was held that it did not, under those facts, constitute a hidden peril giving rise to a cause of action. And see Cox v. Greenfield, 50 Ga. App. 699 ( 179 S.E. 178); Smith v. Seawright, 33 Ga. App. 336 ( 126 S.E. 301); Petree v. Davison-Paxon-Stokes Co., 30 Ga. App. 490 ( 118 S.E. 697).

The following have been held not to be mantraps, pitfalls or hidden perils within this rule: A door opening into a dark, empty space below, Pries v. Atlanta Enterprises, Inc., 66 Ga. App. 464 ( 17 S.E.2d 902); iron pipes on stands 12 feet apart, 18 inches high, used as shifting rods for a railroad signal apparatus, wet and slippery from rain, Cook v. Southern R. Co., 53 Ga. App. 723 ( 187 S.E. 274); Mathis v. Central of Ga. R. Co., 46 Ga. App. 506 ( 168 S.E. 97); a porch severed from a destroyed house with heavy cement and tile surface, supported by a porous, cinder-like base which crumbled easily from slight weight or pressure, George v. Continental Wrecking Corp., 101 Ga. App. 538 ( 114 S.E.2d 383); an unlighted stairway which plaintiff did not see and stepped into near the entrance to an apartment, Mortgage Commission Servicing Corp. v. Brock, 60 Ga. App. 695 ( 4 S.E.2d 669); an unbraced and unsupported automobile tire and rim balanced in a trench near a drain rack at a service station, Bowers v. The Texas Co., 65 Ga. App. 874 ( 16 S.E.2d 765); the soil pan of a bulldozer suspended three feet from the ground falling on a child as he played under it, Brown v. Bone, 85 Ga. App. 22 ( 68 S.E.2d 190); a rotten plank on a wharf, giving way when stepped upon by one who sought to visit a passenger on a ship at 2 p. m., Kinnebrew v. Ocean Steamship Co., 47 Ga. App. 704, supra; easily dislodged crossties and logs piled adjacent to a public street, Atlantic Coast Line R. Co. v. O'Neal, 180 Ga. 153 ( 178 S.E. 451); a darkened stairway on which the banister did not run all the way to the floor, Leach v. Inman, 63 Ga. App. 790 ( 12 S.E.2d 103); a steel rail placed on ends of two short telephone poles, three and a half feet high and leaning at an angle of 30 degrees, Martin v. Seaboard Air Line R. Co., 101 Ga. App. 819 ( 115 S.E.2d 248), and 103 Ga. App. 281 ( 119 S.E.2d 56); a concealed ditch, Nechtman v. Wellington Plaza, Inc., 97 Ga. App. 40 ( 102 S.E.2d 57); step leading from hallway into lower room, Wardlaw v. Executive Committee of Southern Baptist Convention, 47 Ga. App. 595 ( 170 S.E. 830), reversed on other grounds, in Executive Committee v. Wardlaw, 180 Ga. 148 ( 178 S.E. 155); an unloaded clay-pigeon trap, Healey v. Webb, 60 Ga. App. 331 ( 3 S.E.2d 868); gasoline left unguarded and accessible to children having matches, Henderson v. Baird, 100 Ga. App. 627 ( 112 S.E.2d 221); gasoline vapors accumulating from the vent of an underground storage tank, Young v. Towles, 113 Ga. App. 471 ( 148 S.E.2d 455); an unguarded electric washing machine wringer left in operation, Ricks v. Boatwright, 95 Ga. App. 267 ( 97 S.E.2d 635); a mechanically operated iron gate bar, Cobb v. First Nat. Bank of Atlanta, 58 Ga. App. 160 ( 198 S.E. 111); an open cistern partially filled with water, Crawford v. Pollard, 55 Ga. App. 702 ( 191 S.E. 162); an open pond of water, Fickling v. City Council of Augusta, 110 Ga. App. 330 ( 138 S.E.2d 437); Crews v. Slappey, 110 Ga. App. 496 ( 138 S.E.2d 919); an open well, Frankum v. Farlinger, 35 Ga. App. 305 ( 132 S.E. 923); an uncovered and unguarded excavation, Savannah, Fla. c. R. Co. v. Beavers, 113 Ga. 398 ( 39 S.E. 82); an uninsulated live electric wire left over the weekend on premises where building operation was in progress, Butler v. Brogdon, 110 Ga. App. 352, supra; excavation on a lot where building operation was in progress, Baxley v. Williams Constr. Co., 98 Ga. App. 662 ( 106 S.E.2d 799); an open staircase well leading from outside into a basement, Todd v. Armour Co., 44 Ga. App. 609 ( 162 S.E. 394); a ventilation pit or air shaft at back of a lot, Greenfield v. Watson, 54 Ga. App. 9 ( 187 S.E. 183).

We find no mantrap situation in this case. It does not appear from the allegations that there was any preparation of the pole for the purpose of doing injury to an expected trespasser, or that the defendant acted with such conscious indifference concerning it as to infer an intent to injure.

Wilful and wanton negligence. Does the petition show wilful and wanton negligence on the part of this defendant? We think not. Illustrative of what an act of wilful and wanton negligence is may be found in Savannah, Fla. c. R. Co. v. Godkin, 104 Ga. 655 ( 30 S.E. 378), where a brakeman forcibly expelled a person from the train while it was in motion; and in Primus v. Macon R. c. Co., 126 Ga. 667 ( 55 S.E. 924), where an employee of the street railway pushed and shoved a child from a moving car. It was asserted in Cook v. Southern R. Co., 53 Ga. App. 723, 728 ( 187 S.E. 274) that the "[d]efendant being liable only for wilful and wanton injury, [to a licensee] we may consider that `wilfulness and wantonness import premeditation or knowledge and consciousness that injury will result from the act done.'" (Emphasis supplied).

"In addition the defendants would not be liable for anything but affirmative acts, amounting to wilfulness. Leach v. Inman, 63 Ga. App. 790 (2, 4), supra; Atlantic Coast Line R. Co. v. O'Neal, 180 Ga. 153, supra; 49 ALR 795; 156 ALR 1236; Atlantic Steel Co. v. Cleaton, 52 Ga. App. 502, 506 ( 183 S.E. 827)." Baxley v. Williams Constr. Co., 98 Ga. App. 662, 670, supra. Something more than mere negligence must appear. Pennsylvania Threshermen c. Cas. Ins. Co. v. Hill, 113 Ga. App. 283, 290 ( 148 S.E.2d 83).

The owner owes no duty to a licensee, and certainly none to a trespasser, to inspect the premises or to prepare a safe place for his reception. Cobb v. First Nat. Bank of Atlanta, 58 Ga. App. 160 (2 a, b), supra; Restatement, Torts, § 342; Prosser, Torts, (3rd Ed.) Ch. 11, § 60. Accord, Roberts v. Wicker, 213 Ga. 352, 355 ( 99 S.E.2d 84); McLaury v. McGregor, 110 Ga. App. 679 (2) ( 139 S.E.2d 444).

Defendant's franchise, and the city ordinance. Do the provisions in the franchise obtained August 18, 1905, from the City of Savannah to the defendant, requiring that it insulate its wires thoroughly and maintain them to the satisfaction of the mayor and aldermen impose a duty upon the defendant to this plaintiff, under the facts alleged? We think not.

It is alleged that the franchise was granted by a city ordinance, but it matters not whether the negligence relied upon was of the common law type or that which resulted from the violation of some law or ordinance; it must appear that the plaintiff was injured as the result of a violation of some duty owed to him. There is no distinction between the two kinds of negligence as affecting the plaintiff's right to recover. Tyson v. Shoemaker, 208 Ga. 28, 31 ( 65 S.E.2d 163). Unless it could be said that the power company should have anticipated that a trespasser would climb the pole and take hold of the wire, the ordinance requiring insulation was not for his benefit. Platt v. Southern Photo Material Co., 4 Ga. App. 159, 164 ( 60 S.E. 1068). It was for the protection of those who might become injured in a reasonably anticipated situation, as, for example perhaps, when the wires of another utility carried on the same poles might come in contact with the power line and do harm to an employee of the other utility when making line repairs, as in Atlanta Consolidated Street R. Co. v. Owings, 97 Ga. 663 ( 25 S.E. 377), Columbus R. Co. v. Dorsey, 119 Ga. 363 ( 46 S.E. 635), and Trammell v. Columbus R. Co., 9 Ga. App. 98 ( 70 S.E. 892); or for others who may be injured because of lack of insulation when the energized lines of the second utility break and fall to the ground, as in Eining v. Georgia R. c. Co., 133 Ga. 458 ( 66 S.E. 237); or similarly when one is injured while moving a house under the power line, as in Sedlmeyr v. City of Fitzgerald, 140 Ga. 614 ( 79 S.E. 469); or when metal pipes, rods and the like which are being handled below the line come in contact with the uninsulated line and become energized, as in Central of Ga. R. Co. v. Lawley, 33 Ga. App. 375 ( 126 S.E. 273), McCullough v. Georgia Power Co., 81 Ga. App. 293 ( 58 S.E.2d 505), Welch v. City of Camilla, 86 Ga. App. 609 ( 72 S.E.2d 83), Lamar Elec. Membership Corp. v. Carroll, 89 Ga. App. 440 ( 79 S.E.2d 832), Gilbert v. Ocmulgee Elec. Membership Corp., 93 Ga. App. 219 ( 91 S.E.2d 186), Planters Elec. Membership Corp. v. Burke, 98 Ga. App. 380 ( 105 S.E.2d 787), and Gilbert v. Ocmulgee Elec. Membership Corp., 100 Ga. App. 638 ( 112 S.E.2d 207); or when the uninsulated line breaks and falls to the ground where people may be expected to come in contact with it, as in Southern Bell Tel. Tel. Co. v. Davis, 12 Ga. App. 28 ( 76 S.E. 786), Southern Bell Tel. Tel. Co. v. Ellis, 16 Ga. App. 864 ( 87 S.E. 766), Savannah Lighting Co. v. Harrison, 20 Ga. App. 8 ( 92 S.E. 772), Darden v. Mayor c. of Washington, 35 Ga. App. 777 ( 134 S.E. 813); or when the highly charged uninsulated wires are permitted to sag near the street, as in Lloyd v. City Suburban R. Co., 110 Ga. 165 ( 35 S.E. 170), City Council of Augusta v. Tharpe, 113 Ga. 152 ( 38 S.E. 389), Midland Properties Co. v. Farmer, 100 Ga. App. 8 ( 110 S.E.2d 100), and Slappy v. Georgia Power Co., 109 Ga. App. 850 ( 137 S.E.2d 537), but see Read v. City Suburban R. Co., 115 Ga. 366 ( 41 S.E. 629), Higginbotham v. Rome r. Light Co., 23 Ga. App. 753 ( 99 S.E. 638), Rome R. Light Co. v. Robinson, 35 Ga. App. 521 ( 134 S.E. 132) and Georgia Power Co. v. Wood, 43 Ga. App. 542 ( 159 S.E. 729); or when construction work is being performed in proximity to the uninsulated high voltage lines, as in Rome R. Light Co. v. Jones, 33 Ga. App. 617 ( 127 S.E. 786), Rome R. Light Co. v. Jones, 37 Ga. App. 244 ( 139 S.E. 579), City of Albany v. James, 39 Ga. App. 379 ( 147 S.E. 396) and Altamaha Elec. Membership Corp. v. Irvin, 106 Ga. App. 491 ( 127 S.E.2d 326).

The duty of insulating is not absolute. If the company maintains its wires at a height such that it is not reasonable to anticipate that people will come in contact with them, it is not generally required. 29A CJS 1073, Electricity, § 42; 26 AmJur2d 332, Electricity, § 122. Cf. Croxton v. Duke Power Co., 181 F.2d 306; Morton's Admr. v. Kentucky-Tennessee Light Power Co., 282 Ky. 174 ( 138 S.W.2d 345); Buell v. Utica Gas c. Co., 259 N.Y. 443 ( 182 N.E. 77); Webb v. Louisiana Power c. Co. (La.App.) 199 S 451; Trimyer v. Norfolk Tallow Co., 192 Va. 776 ( 66 S.E.2d 441); Glasscock v. U.S., 207 F. Supp. 318.

The extent of liability would not differ whether it rested upon common-law negligence or upon a provision in an ordinance, as was pointed out in Tyson v. Shoemaker, 208 Ga. 28, supra, though the quantum of proof required would differ. 26 AmJur2d 335, Electricity, § 123. But a breach of duty, whether statutory or common law, owing to the plaintiff must first appear, and it does not appear under the allegations of this petition. Moreover, provisions of this type in an ordinance granting a power company the right to erect its lines along the public streets have been held to be directory and contractual only, which the city may afterwards waive by its conduct. South Georgia Power Co. v. Smith, 42 Ga. App. 100 (2) ( 155 S.E. 80); Callaway v. Central Ga. Power Co., 43 Ga. App. 820 (3) ( 160 S.E. 703). And since the provisions are contractual between the city and the power company a breach of them would give rise to a cause of action between them only, unless it appears that the plaintiff would have a right of action for his injury independently of the contract. Code § 105-106. Cf. Freeman v. Macon Gas Light c. Co., 126 Ga. 843, 847 ( 56 S.E. 61, 7 LRA (NS) 917).

Concerning the ordinance prohibiting the placing of hooks or prongs on poles at heights less than eight feet from the ground, we do not find any violation alleged. Braces for holding the meter box do not come within the prohibited category. These were not intended for the purpose of climbing; the diagram attached to the petition as an exhibit discloses that they were not so designed. The box rested on them and they turned up around it to prevent it from becoming displaced. It was to the placing of accessories designed for climbing use that the ordinance was directed. If the plaintiff used the braces for climbing, he made an unintended use of them. "Where an instrumentality is being put to a purpose or use not intended, the owner or person in control thereof is not liable for injuries occasioned thereby, unless he had actual knowledge that it was defective and unsuited for that purpose, and also knew or should have anticipated that it would be diverted to the foreign use." Culbreath v. Kutz Co., 37 Ga. App. 425 (1) ( 140 S.E. 419). Accord, Hornsby v. Haverty Furn. Co., 85 Ga. App. 425, 430-431 ( 69 S.E.2d 630); Augusta Amusements, Inc. v. Powell, 93 Ga. App. 752, 758 ( 92 S.E.2d 720).

Nor can it be said that the presence of the pipes to the fuel oil tanks of Starland Dairies were "hooks or prongs" in violation of the ordinance. They were not attached to the pole, were not the property of the defendant, and were not placed by the defendant. Obviously these were not intended to be used as a "ladder" in climbing defendant's pole.

Knowledge or notice. There is no allegation of actual knowledge on the part of the defendant that plaintiff was climbing or would climb the pole. It is alleged that the defendant knew children had customarily played in the vicinity of the pole for a long period of time, and it is alleged that plaintiff's presence on the premises was known, or should have been known. On general demurrer this must be taken as no more than an allegation of constructive knowledge. Doyal v. Russell, 183 Ga. 518 ( 189 S.E. 32); Belch v. Sprayberry, 97 Ga. App. 47 (2) ( 101 S.E.2d 870). Since we conclude that plaintiff's status was that of a trespasser, it must appear that the defendant had actual knowledge of his presence on the pole if it is to be held for injury occasioned by anything less than a mantrap or wilful and wanton negligence. "In order to impute to a corporation notice or knowledge acquired by one of its officers or agents, the information must have been acquired while such officer or agent with reference to the subject-matter of his agency was `acting for it in connection with its business, and within the scope of his agency.'" Georgia Power Co. v. Kinard, 47 Ga. App. 483, 487 (4) ( 170 S.E. 688). That the defendant may have known that children customarily played in the vicinity of the pole is an allegation of neither notice nor knowledge that the pole would be climbed.

That the defendant knew of the uninsulated condition of its wire strung on the poles some 20 feet above the ground, or of the wire running from the transmission line into the transformer box just under the line, does not charge it with notice that a trespasser would enter a situation of danger by climbing the pole and taking hold of the line. If the uninsulated wire be regarded as a defect, "[t]here is a difference between notice of defect and knowledge of danger." Bray v. Cross, 98 Ga. App. 612, 618 (4) ( 106 S.E.2d 315).

Conclusion. The sustaining of a general demurrer to each of the counts in the petition was proper. Additional authorities supporting this conclusion are: Augusta R. Co. v. Andrews, 89 Ga. 653 ( 16 S.E. 203), holding that failure to allege that the plaintiff had permission from the owner of an electric system to climb its pole and come in contact with its wires rendered the petition subject to a general demurrer; aliter when permission to climb was alleged, Augusta R. Co. v. Andrews, 92 Ga. 706 ( 19 S.E. 713); and see Columbus R. Co. v. Dorsey, 119 Ga. 363 ( 46 S.E. 635).

"It appear[s] that the plaintiff placed himself in a position of peril by his own acts, and that the defendant company could not reasonably have foreseen that its alleged acts of negligence would concur with those of the plaintiff so as to injure him. . ." Hornsby v. Haverty Furn. Co., 85 Ga. App. 425 (1a), supra. "The duty to a trespasser does not flow from the relation; none exists, except a wrongful relation. It can arise only with the peril to the trespasser. Until the peril arises, and until the defendant knows of the peril to the trespasser, there can be no duty to warn the trespasser. To assume such a duty is to assume the prior duty to think for the plaintiff, and to anticipate that he may put himself in a position of peril." Central Ga. Power Co. v. Walker, 20 Ga. App. 645, 647 ( 93 S.E. 306). And see 26 Am Jur2d 298, Electricity, § 91.

What is held here in no way detracts from the rule that those who engage in the production and distribution of electricity must exercise a high degree of care, commensurate with the danger involved, to prevent injuries to others by the electricity.

Judgment affirmed. Bell, P. J., and Jordan, J., concur.