Buckeye Irrigation Company v. Askren

• Decision Date: 17 June 1935
• Docket Number: Civil 3475
• Parties: BUCKEYE IRRIGATION COMPANY, a Corporation, Appellant, v. SAMUEL C. ASKREN, Administrator of the Estate of CARL ASKREN, Deceased, Appellee
• Court: Arizona Supreme Court

46 P.2d 1068

45 Ariz. 566

BUCKEYE IRRIGATION COMPANY, a Corporation, Appellant, v. SAMUEL C. ASKREN, Administrator of the Estate of CARL ASKREN, Deceased, Appellee

Civil No. 3475

Supreme Court of Arizona

June 17, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps and J. C. Niles, Judges. Order granting new trial affirmed.

Messrs Kibbey, Bennett, Gust, Smith & Rosenfeld, for Appellant.

Mr Dale McMasters and Mr. James E. Nelson, for Appellee.

OPINION

ROSS, J.

This is an action by the personal representative of the estate of Carl Askren for damages on account of his death, alleged to have been caused by and through the negligence of the defendant, Buckeye Irrigation Company. Under an agreement of the parties, a jury was waived and the case was tried before the court, two Judges, Honorable M. T. PHELPS and Honorable J. C. NILES, sitting. The issues upon the trial were decided in favor of the defendant, and thereafter plaintiff made a motion for a new trial. From an order granting this motion the defendant has appealed.

The grounds of the motion for a new trial were, in effect and substance, that the court's decision was not justified by the evidence and was contrary to law. If the evidence makes out a cause of action for damages as alleged in the complaint, the order granting a new trial must be sustained. The presumption is in favor of the correctness of the order granting the new trial. Young Mines Co., Ltd., v. Citizens' State Bank, 37 Ariz. 521, 296 pac. 247. We shall examine the evidence and determine therefrom if the order was in fact justified.

The evidence construed in its most favorable light, as it should be on an appeal from an order granting a motion for a new trial, reasonably supports the following facts: The defendant is a quasi-public corporation, organized under the laws of the state for the purpose of furnishing irrigation water to the Buckeye farming community. In 1919 it was engaged in enlarging, constructing, or extending its canal system, and after such development was completed, it had left over from twenty-two to twenty-five metal cans of black blasting powder, which it stored in what is referred to in the evidence as a "dugout," located about one-half mile from its diversion dam on the Gila River. This dugout or powder house was some three or four hundred feet from the highway and about the same distance from some buildings belonging to defendant, in front of which was a wire fence and also the public highway. Near the buildings there was a gate on Which was painted a sign, "Private Property Keep Off." The buildings were occupied as a dwelling by an employee of defendant and his family consisting of children from one or two to twelve years of age. This employee was a caretaker of the buildings, also of the powder house, and, although there is no positive evidence to that effect, we think of the diversion dam and the grounds on which these improvements were located. The powder house was excavated into the wall of a ravine, roofed over with boards, brush, and earth. The entrance way to this powder house consisted of a frame door constructed so that it could be locked. When the powder was first placed therein (1919), the door was locked, but some time thereafter, probably in 1930 or before, the door was or became unlocked and thereafter stood ajar so that persons could enter the powder house, or could reach the powder in the cans without entering. In the meantime the dirt walls had caved in covering up the cans, which later eroded exposing the powder. This powder house was located in an isolated spot, could not be seen from the public highway, and was surrounded by a growth of brush and weeds. There was no road or trail leading to or from it. It was on a point of land formed at the junction of the Gila and Agua Fria Rivers. A third side was inclosed by the fence in front of the house mentioned above.

On or about the 8th day of February, 1931, the decedent, who was then thirteen years of age, and his brother Leslie, who was about nine years of age, went to this powder house on defendant's premises and took therefrom two cans of black powder, whose bottoms had rusted away, carried them for something like a half mile onto the desert, and there took from the cans some of the powder and put it into their pockets. From this point they went farther onto the desert, where they stopped, and with the powder, as Leslie explained in his testimony, "made snakes on the ground." The decedent struck a match for the purpose of igniting the make-believe snake. When he did so, it flared up and ignited the powder in his pockets and as a result he was so badly burned that he died within some four hours.

The decedent and his brother Leslie had been to the powder house three times before. The defendant's caretaker, one Damron, who had children near the age of the Askren children, had several times invited them, as also some children of the Meador family who lived in the neighborhood, to the premises. On one of these occasions Demron stood near or against the powder house while he did some target shooting with a twenty-two rifle, and these boys were present. At that time the door to the powder house was open. It seems that the grounds around or near, that is, within 150 or 200 yards of the powder house, were on occasion used by the neighborhood families for picnic purposes under permit from the defendant, and that on such occasions the picnickers were allowed to fish in the reservoir back of the dam and along the river.

Decedent's attention had been called to the powder by the Damron children and once before, according to Leslie Askren's testimony, he and his brother had taken powder from the powder house. At the times they took powder they reached the powder house by going along the river bed and up the ravine. On these trips they saw no one and were seen by no one. They took the powder to play with.

Decedent was a seventh grade pupil in the public schools. He did not like school, but was apt at machinery.

Whether the keeping of the powder by defendant on its premises, in a way or manner that permitted the children of the neighborhood access to it, with the knowledge that such children knew of its accessibility and were accustomed to visit the premises, was a violation of the duty it owed to such youth so as to make it liable in damages to one of them injured or killed thereby, is the question.

That the defendant exercised due precaution in the disposition of the left-over powder in 1919 is evident. It constructed an underground storage place for such powder and placed it therein under lock and key; it was located in an out-of-the-way place. If defendant's agents had not invited the neighboring families to come upon the grounds with their children to picnic, fish and play, probably the location of the powder would not have been discovered. Or, if the powder house had been kept in repair and locked, the powder could not have been obtained by trespassers or others. This powder was not something that was being used from day to day in the defendant's operations. Apparently defendant had not had occasion, from the time it was stored in 1919, to use any of it. The care defendant took originally to store the powder indicates it desired to preserve its property for future use, as also to prevent children and others from taking or destroying or tampering with it, but its subsequent failure to keep it under lock or to protect the containers from coming in contact with the damp earth and rusting away so that their contents could be extracted with the hand indicates defendant had grown indifferent as to what became of the powder or those who might meddle with it. Such indifference falling under the observation of children might also induce a belief on their part that they were doing no great wrong in taking the powder to play with. There was no business reason for its being exposed to anyone. In other words, defendant cannot defend on the ground that it was necessary to its business that the powder be left easy of access, as it was not being used. Its situation was not, for instance, like that of the operator of a cotton gin, who cannot gin cotton unless the engine, pulleys and conveyers are functioning.

"... The rule is that one having explosives in his possession, so far as their safekeeping is concerned, is under a duty to exercise the highest care to avoid them coming into the hands of children and causing harm to or through them, and it is conceded in the majority of jurisdictions, and conceded in all jurisdictions that apply the doctrine of attractive nuisance, that whether the children are or are not trespassers is immaterial, if there is a reasonable probability of their presence that would create a danger of the explosives falling into their hands." Lone Star Gas Co. v. Parsons, 159 Okl. 52, 14 P.2d 369, 374.

It is clear defendant was guilty of negligence in permitting the powder house to become out of repair and unlocked, in view of the fact that its location and condition were known to the children of the neighborhood.

Notwithstanding such negligence and carelessness, a person of maturity and discretion going upon defendant's premises and appropriating the powder left unprotected and receiving an injury therefrom could not recover damages, because such person would be a trespasser and a lawbreaker. The general rule is that a property owner owes no duty to trespassers except not wilfully or intentionally to inflict an injury upon them. Salladay v. Old Dominion etc. Min Co., 12 Ariz. 124, 100 P. 441; Salt River Valley Water Users' Assn. v. Compton, 39 Ariz. 491, 8 P.2d 249. This very just rule applied to persons of maturity and discretion is not the rule as to...