Bjork v. City of Tacoma

• Decision Date: 29 October 1913
• Citation: 135 P. 1005,76 Wash. 225
• Parties: BJORK v. CITY OF TACOMA.
• Court: Washington Supreme Court

135 P. 1005

76 Wash. 225

BJORK v. CITY OF TACOMA.

Supreme Court of Washington

October 29, 1913

Department 2. Appeal from Superior Court, Pierce County; Ernest M. Card Judge.

Action by Abel Bjork against the City of Tacoma. From a judgment of nonsuit, plaintiff appeals. Reversed.

Teats Teats & Teats, of Tacoma, for appellant.

T. L Stiles and Frank M. Carnahan, both of Tacoma, for respondent.

ELLIS J.

In this action, the plaintiff seeks to recover damages on account of the death of his minor son, alleged to have been caused through the negligence of the defendant. It is admitted that the city of Tacoma was, at the time of the accident in question, and for years had been, the owner of and operating a water system for supplying water to its inhabitants and, as a part of its system, maintained a wooden flume carrying water from the sources of supply to its reservoir. This flume runs along the middle of an uninclosed right of way between Clement and Alder streets in the city. The flume was in the form of a box about 24 inches square, and the top, at the place of the accident, was level with or a little above the surface of the ground. Prior to 1908, before the city water pipes had been laid along Clement avenue, residents of that district were accustomed, with the city's permission and for pay, to obtain water from the flume through a hole 24 inches square cut in the top of the flume. The wooden cover over this hole was on hinges and furnished with a padlock, and the people so supplied with water were provided with keys and required by the city to keep the cover at all times locked. When the city water was piped to the various residences in this section, this use of the flume was abandoned and the cover of the opening was nailed down. At the time of the accident, the hinges had rusted off, there was no padlock, and the nails which had held the cover in place had rusted and were, as one witness testified, 'stubs of nails.' One witness, a boy of ten, testified that this cover had been off and the hole open continuously for two or three weeks. Other witnesses contradicted this, and the plaintiff and his wife testified that they had never seen it open at any time before the accident. The water running in the flume was about 18 inches in depth. The right of way was open so that any one who desired had access to it, and it had become, prior to the accident, a regular playground for the children of the neighborhood. The plaintiff lived with his family on the east side of Clement avenue in sight of the flume, and there was no fence or obstruction of any kind between his residence and the flume right of way which ran parallel with and contiguous to the avenue on the west.

On the morning of June 23, 1911, the deceased, a child a little under three years told, and another boy of about the same age, were playing along the flume. A witness who was working on the roof of a house about 300 feet from the scene of the accident saw the boys running along the flume, and, when they came to the spot where the witness supposed the cover to be, they 'took a jump,' as he said, and then ran back, repeating the performance. Finally he saw only one of the boys running toward the Bjork house, evidently seeking assistance, and Mrs. Bjork, the boy's mother, came out screaming and ran toward the hole. Several persons, attracted by her cries, ran to the place where the boy had fallen in, and one of them, surmising what had happened, ran down to another opening in the flume near the power house, where, with the assistance of one of the employés of the power plant, he lifted the cover from that opening and found the child lying face downward, drowned.

At the conclusion of the testimony on behalf of the plaintiff, the defendant moved for a nonsuit on the ground that the evidence failed to establish actionable negligence on the city's part. The motion was granted. From the judgment of nonsuit the plaintiff prosecutes this appeal.

Eliminating the questions of notice to the city and contributory negligence of the parents of the child, which, under the evidence, were clearly for the jury, there is but one question presented for our consideration: Was the opening in the flume, exposing a constantly flowing stream of water beneath, in an unfenced right of way contiguous for a long distance to a public street in the city and permitted to be used as a common playground by the children of the neighborhood, a thing of such location and character as to be attractive and alluring to small children so that danger therefrom should have been reasonably anticipated and guarded against by the city?

The city, in the maintenance and operation of its waterworks, was acting in a proprietary and not a governmental capacity. Its liability must therefore be the same as that of a private owner under the same circumstances.

That the child, a mere baby, was a technical trespasser, or at most a mere licensee, is an immaterial circumstance. A child attracted to premises open and unguarded in a populous neighborhood by things maintained thereon enticing to the childish curiosity and instincts is not a culpable trespasser in any sound sense. This is against the weight of authority when measured in mere numbers, which holds the child to the rule applied to the adult who, when injured while trespassing upon the premises of a defendant, can recover damages only when the injury was wanton or was due to recklessly careless conduct on the defendant's part. But, as said by a candid text-writer: 'This cruel and wicked doctrine, unworthy of a civilized jurisprudence, puts property above humanity leaves entirely out of view the tender years and infirmity of understanding of the child, indeed his inability to be a trespasser in sound legal theory, and visits upon him the consequences of his trespass just as though he were an adult, and exonerates the person or corporation upon whose property he is a trespasser from any measure of duty towards him which they would not owe under the same circumstances towards an adult.' 1 Thompson on Negligence (2d Ed.) § 1026. The same writer, after admitting the fact that in many jurisdictions the doctrine of trespass as a defense, even as applied to small children, must be regarded as established law, scathingly reprobating the doctrine as barbarous, says: 'Nevertheless, a few decisions of enlightened and humane courts are found, more or less tending to the conclusion that the owner of any machine or other...