Clark v. Longview Public Service Co.

• Decision Date: 15 April 1927
• Docket Number: 20222.
• Citation: 255 P. 380,143 Wash. 319
• Parties: CLARK v. LONGVIEW PUBLIC SERVICE CO.
• Court: Washington Supreme Court

255 P. 380

143 Wash. 319

CLARK v. LONGVIEW PUBLIC SERVICE CO.

No. 20222.

Supreme Court of Washington

April 15, 1927

Department 1.

Appeal from Superior Court, Cowlitz County; Kirby, Judge.

Action by Mabel Clark against the Longview Public Service Company. From the judgment, defendant appeals. Affirmed.

Bates & Peterson and Hayden, Langhorne & Metzger all of Tacoma, for appellant.

E. H Kohlhase, of Kelso, and G. F. Vandeveer, of Seattle, for respondent.

MACKINTOSH C.J.

Near the city of Longview the appellant constructed and maintained, on the property of a diking and drainage district, an electrical transformer and other appliances for reducing and stepping down the high-voltage used by it for power in the operation of the district's pumps. The transformer consisted of a great number of wires highly charged with electricity. The pumphouse and transformer abut upon a highly-traveled public road, and the high-tension wires were brought down vertically from the transmission line near the pumphouse and were weather-proofed and had the appearance of an ordinary insulated wire. On May 3, 1925, the respondent, who was a girl then nearly 18 years of age accompanied by her parents, went to the diking district's property near the pumphouse for the purpose of fishing in the adjoining waters of the canal. Many fish were killed by passing through the pumps, so that the canal became a favorite fishing resort and many persons of all ages gathered there for that purpose; and in going and coming they passed within a few feet of the transformer, and the principal fishing was conducted within a hundred feet of it. The respondent, having arrived at the pumphouse, proceeded along the concrete walk leading to its entrance and passed around its south side and to the north side of the dike, where she seated herself on a rock and watched her parents fishing. After a brief interval she decided to enter the inclosure surrounding the transformer, to look into the windows to see the pumps operating, and also for the purpose of finding a lavatory. An areaway, 3 or 4 feet wide and 2 1/2 feet deep, was between her and the windows of the pumphouse, and in order to get a closer view of the interior it appears that she must have taken hold of a truss-rod, leaned forward in such a way that her hair blew against one of the high-voltage wires, and that this caused a short circuit which resulted in a current of 6,700 volts passing into her skull, resulting in permanent injuries, being a second-degree burn on the right hand and a third-degree burn in the right frontal portion of the skull, so that the bone was charred and afterwards a portion of it was removed by a physician, causing the brain tissue to protrude through the opening. As a result she is in a highly nervous and distressing condition. To recover damages for these injuries, this action was brought.

The testimony shows that the wires and transformer were attempted to be guarded by a woven wire fence, forming an inclosure 20 feet in width east and west, and 40 feet in length. There were no posts on either the north or south side except the corner posts, and this 20 feet of wire span was not very taut; and under it on the north side was a hole, estimated to be from 2 1/2 to 4 feet in depth, which permitted persons to pass under the wire and to enter the inclosure. A hole of nearly the same dimensions existed on the south, and on neither of these sides were there any warning signs indicating that there was any danger present. On the west side there was a sign which gave warning that the situation was dangerous. It was through one of these openings that the respondent entered the inclosure and came in the proximity of the transformer.

It is first emphatically urged that there was no evidence to justify any recovery against the appellant upon the theory that this was an action based upon the attractive nuisance doctrine. While it is true that the complaint made allegations which would bring the cause of action within that doctrine, yet the case was tried and the jury instructed upon the general theory of negligence; and, these instructions having been unobjected to by the appellant and in fact being as favorable as could have been asked for on the general theory of negligence, the fact--if it may be assumed to be a fact--that the situation presented is not one which comes within the theory of the attractive nuisance cases, is not a ground for granting the appellant's motions for nonsuit for a directed verdict, or for judgment notwithstanding the verdict. The great number of authorities cited to the point that a person of the age of this respondent cannot receive the benefit of the attractive nuisance theory need not be reviewed; for it is only material to consider whether there was sufficient evidence to go to the jury on the question of the appellant's negligence, and, if there was, whether the respondent...