Negligence, In maintaining wires, In use of highway. If a small boy, who is in the charge and care of his sister ten years of age, is left by his sister standing on an uneven grass plot about fifteen feet wide, which is a part of a public highway that has no sidewalk at that place and is at the side of the travelled road, while his sister and a companion of the same age turn their backs on him and go a few feet away to pick flowers, and the boy is struck and injured by a loose guy wire or wire cable swinging from a telegraph pole, in an action by the boy against the telegraph company maintaining the wire for his injuries so sustained, it can be found that the boy was in a place on the highway where he had a right to be and that his sister was in the exercise of as much care and prudence in the protection of her brother as reasonably might be expected on the part of a girl of her age.
If a telegraph company leaves a loose guy wire or wire cable fifteen or twenty feet long hanging from one of its telegraph poles over an uneven grass plot about fifteen feet wide that is part of a public highway without a sidewalk at the side of the travelled road, so that the end of the wire or cable can be swung as much as five feet by an ordinary wind, and it remains in this condition so long that children in the neighborhood get in the way of swinging on it from day to day, putting a foot in the end that is curled up, in an action against the company by a child who was injured by having the wire or wire cable swing against his eye, it can be found that the defendant was negligent in failing to discover the condition of the wire and allowing it to remain loose.
CROSBY, J.
The plaintiff, a minor, brings this action by his next friend, to recover for personal injuries alleged to have been received by reason of being struck in the eye by a guy wire hanging from a telegraph pole, owned and used by the defendant.
The place of the alleged accident was on Western Avenue, a public highway in Lynn, at a point near the northerly end of the Floating Bridge, so called. The bridge is a part of the highway and is about thirty feet wide. The highway is sixty-six feet wide where the bridge joins it and the shore of the pond. A projection of the side lines of the bridge would mark the travelled part of the highway; between the travelled road and the side lines of the highway is an uneven grass plot about fifteen feet wide. There is no sidewalk at this point.
The plaintiff was injured while on this grass plot. The telegraph pole, upon which the wire hung, was close to the rail about four feet from the end. We are of opinion that the plaintiff, when he was injured, was in a place upon the highway where he had a right to be.
While the report recites that the plaintiff was a minor, his age at the time of the accident does not appear. There was evidence, however, that he was in charge of his sister who was ten years old. In view of the evidence, we are of opinion that it could have been found that she exercised as much care and prudence in the protection of her brother as might reasonably be expected of a girl of her age.
There was evidence tending to show that, just before the accident, "there were a crowd of children swinging on the wire;" that children had been seen swinging on the wire before the day of the accident; that it was a cable wire with five or six strands, and that the end was curled up, "where they [the children] put their foot in and swung."
In view of the length of time during which it could have been found that the wire had been hanging from the pole, we are of opinion that the jury would have been warranted in finding that the defendant was negligent in failing to discover the wire and to secure it.
In accordance with the terms of the report, let the entry be
Judgment for the plaintiff in the sum of $100.