Afton Electric Co. v. Harrison

• Decision Date: 18 February 1936
• Docket Number: 1918
• Citation: 49 Wyo. 367,54 P.2d 540
• Parties: AFTON ELECTRIC COMPANY v. HARRISON
• Court: Wyoming Supreme Court

54 P.2d 540

49 Wyo. 367

AFTON ELECTRIC COMPANY v. HARRISON

No. 1918

Supreme Court of Wyoming

February 18, 1936

ERROR TO the District Court, Lincoln County; REUEL WALTON, Judge.

Action by Gean Harrison, administratrix of the estate of Mack Harrison, deceased, against the Afton Electric Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

For the plaintiff in error the cause was submitted without oral argument upon the brief of W. A. Muir of Rock Springs.

As appears from the pleadings and the evidence, the action was tried and submitted upon the theory of "attractive nuisance." There is a clear distinction recognized by the authorities between an object which is attractive in itself, and invites a trespass, and an object which does not invite a trespass. We submit that there is nothing in the record establishing the fact that the pole in question was an attractive nuisance. On the contrary, the evidence establishes the fact that decedent was not attracted by the pole in question, either before or after the trespass. Nor is there anything in the record showing that the officers of defendant company knew or should have known, or had information from which they should have anticipated that decedent would come in contact with the electric wires. 36 A L. R. 294. Under the evidence, the doctrine of attractive nuisance cannot be invoked. Graves v. Washington Water Power Company, (Wash.) 87 P. 956; 11 L. R. A., (N. S.) 452, 456; Delaware L. & W. R. Co. v. Reich, 41 L. R A. 831; Grube v. Baltimore, 1918E, L. R. A. 1036; Mayfield Water Company v. Webb, (Ky.) 111 S.W. 712; 45 C. J. 760-762. In order that liability may be imposed under the attractive nuisance doctrine, it is necessary that the condition or applicance which caused the injury should have actually attracted the child into danger, and hence the doctrine is not applicable where the injured child went into the dangerous situation for some other reason. 45 C. J. 767; United Zinc Company v. Britt, 258 U.S. 268. The original case of Railroad Company v. Stout, 21 L.Ed 745, known as the "Turntable Case," is referred to and distinguished, also the well known case of U. P. Ry. Company v. McDonald, 38 L.Ed. 434. The following cases illustrate the rules found in Corpus Juris: Hayko v. Coal Company, (Colo.) 235 P. 373; Carr v. Company, (Ore.) 261 P. 899; Water Company v. Harold, (Ind.) 83 N.E. 993. The rule contended for by plaintiff in error seems to have been followed unanimously by the courts of this country. Giannini v. Campodonico, (Cal.) 169 P. 80; 9 R. C. L. 1209, 1213; Ramirez v. Cheyenne, 34 Wyoming 67; Howard v. Transmission Company, (Mo.) 49 A. L. R. 1034. The facts in the case at bar are much weaker than the facts disclosed in the foregoing authorities. The mere fact of an accident and resultant injury, does not, as a general rule, make out a prima facie case of negligence. State ex. rel. v. Trimble, 49 A. L. R. 1047. It is practically as easy for a boy to climb twenty or thirty feet above the ground as it is for him to climb fifteen feet. New York N.H. & H. R. Company v. Fruchter, 260 U.S. 141. The case of Simonton v. Electric Light & Power Company, 67 S.W. 530 illustrates the doctrine of an attractive nuisance quite fully, also the cases of Robertson v. Rockland Light & Power Company, 176 N.Y.S. 281; McFarland v. Martin, 90 Pa. S.Ct. 151. Supplementing annotations in 36 A. L. R. 135, 39 A. L. R. 488, 45 A. L. R. 987 and 53 A. L. R. 1350; Duron v. Iron Works, (Texas) 9 S.W.2d 1104, annotated 53 A. L. R. 1351; Whetherby v. Electric Company, (Vt.) 25 L. R. A. (N. S.) 1220; Reddy v. City, (S. D.) 220 N.W. 851; Salt River Valley Water Users' Association v. Compton, (Ariz.) 8 P.2d 249. This latter case is of particular interest, since it involved facts somewhat similar to the case at bar. The attraction in the Salt River case was a bird's nest, which the boy climbed the pole to remove. In the present case, as disclosed by the evidence, Mack Harrison climbed the pole of Afton Electric Company in playing the game of "Tarzan of the Apes," and for the purpose of discovering imaginary lions and natives. We submit that there is no evidence in this record indicating that the pole climbed by Mack Harrison, or anything in connection with its surroundings, was an "attractive nuisance," within the rules recognized and followed by the authorities, and it is respectfully submitted that the judgment of the lower court should be reversed.

The cause was submitted without oral argument on the brief of Ivan S. Jones of Kemmerer and Thatcher & Young of Ogden, Utah.

The principle of law involved in this case is stated in 20 R. C. L. 80, making one liable for the maintenance of an attractive nuisance where children are injured thereby. The doctrine is supported by the weight of authority. Mattson v. R. Company, 70 L. R. A. 503. Cahill v. Stone, 96 P. 84; Dahl v. D. Co., 52 L. R. A. (N. S.) 1173; Cooper v. Power Company, (Ore.) 244 P. 665; Ferrari v. New York C. R. Co., 60 A. L. R. 1452. Many of the cases involve injuries or death from electric current conducted by wires. Temple v. McComb, 11 L. R. A. (N. S.) 449; Burns v. Chicago, 248 Ill. 204; Heller v. New York, 17 A. L. R. 823; Stedwell v. Chicago, 17 A. L. R. 829; Beckwith v. Malden, (Mo.) 253 S.W. 17. The rule that ordinary persons must all know danger attends contact with electric wires was held not to apply to a boy fourteen years old. Morris v. Jefferson Electric Company, 123 A. 321; Znidersich v. Utilities Co., (Minn.) 193 N.W. 449. The element of attractiveness is present in any situation that encourages the inward urge of boys to climb. Robertson v. Company, 176 N.Y.S. 261; McKiddy v. Electric Company, (Iowa) 206 N.W. 815; Klingensmith v. Traction Company, 18 Ohio App. 290; Talkington v. Power Company, (Wash.) 165 P. 87; Mayer v. Menominee L. & T. Company, (Wisc.) 138 N.W. 1008; Hays v. Southern Power Company, (S. C.) 78 S.E. 956; Ferrari v. R. Co. 230 N.Y.S. 60; Thompson v. Tilton L. & F. Company, (N. H.) 68 A. 216. On the question of contributory negligence we cite Waterbury v. Water Company, 33 P.2d 1048; McKay v. Hedger, 34 P.2d 224. Findings of the trial court upon substantial evidence are as binding on the reviewing court as the verdict of a jury. Wolczek v. Public Service Company, 174 N.E. 577; Salt Lake Company v. Connell, (Wyo.) 34 P.2d 23; Phillips Petroleum Company v. Mattheson, (Okla.) 44 P.2d 56; Carillo v. Helms Bakeries, (Cal.) 44 P.2d 604; Ketchum v. Davis, (Wyo.) 13 P. 15; Farnum v. Power Company, (Mont.) 43 P.2d 640; McCormick v. Great Western Power Company, (Cal.) 8 P.2d 145. We also cite on the doctrine of an attractive nuisance the following: Fort Wayne Company v. Stark, 126 N.E. 460; Sullivan v. Power Company, 9 P.2d 1038; Scott v. Power & Light Company, (Wash.) 35 P.2d 749; Brown v. Southern Cal. Company, (Cal.) 7 P.2d 770. Compliance with the rules of the United States Bureau of Standards constitutes a standard of care and is not usually regarded as a defense to a charge of negligence. Anstead v. Gas Company, (Cal.) 265 P. 487; Brooks v. Consolidated Gas Company, (N. J.) 57 A. 396; Smith v. Company, 74 Pa. 647. The facts proven in this case were that children played in the vicinity of this pole with the permission of the owner of the premises; that this particular pole was built much like a swing; that at the base of each pole were cedar stumps full of knots; that wires were so placed around the pole and the stumps that a child could use the same for steps; that by this means a child could easily climb the stump and when standing thereon could reach the braces and walk right up the braces to the top of the pole; that the decedent and the Procter boy were playing on the day in question in the vicinity of this pole. A jury might therefore properly infer that decedent was lured by the attractiveness of this pole. 45 C. J. 767; Miller v. Gooding Highway District, 41 P.2d 625.

BLUME, Justice. KIMBALL, CH. J., and RINER, J., concur.

OPINION

BLUME, Justice.

In this case Gean Harrison, as administratrix of the estate of Mack Harrison, deceased, recovered judgment from the Afton Electric Corporation, on account of the death of the deceased, in the sum of $ 3,500, from which judgment the Electric Corporation has appealed by way of the proceeding in error.

The deceased was a boy just under ten years of age. On May 18th 1930, he was playing with one Carlos Proctor, a boy of about the same age, the game of Tarzan of the Apes. The deceased climbed an electric light pole, came in contact with uninsulated wires about fifteen feet from the ground, charged with a current of 2300 volts, and was electrocuted. The pole mentioned was about forty rods from the east side of Afton, a town of about 900 population, and stood upon the western brow of what is called Temple Bench. This bench is one of the foothills of the mountains west of Afton, rising by a steep incline of about fifty feet above the level of the town, the top of the foothill being somewhat level. The north part, where the pole stood, has an area of about 17 acres, and is about twice as long from north to south as from east to west. It is enclosed by a fence of three wires, except on the easterly side, where it is enclosed by a canal. It is hay and alfalfa land, though some of the testimony shows that the alfalfa field, nearest to the pole, did not quite reach the pole. Close to the pole, southwesterly, but mostly off the bench, grew some aspen trees, shrubbery and flowers, and children resorted there, frequently, for the purpose of picking flowers. There is considerable testimony, mostly denied by witnesses for the electric corporation, that children frequently, and for many years prior to 1930, went onto the bench to play. A number of witnesses...