Daggett v. Tiffany

• Decision Date: 09 April 1970
• Docket Number: No. 71--40750--III,71--40750--III
• Citation: 2 Wn.App. 309,467 P.2d 629
• Court: Washington Court of Appeals
• Parties: Rose DAGGETT, Respondent, v. Edwin TIFFANY and Margaret Tiffany, his wife; and Keith Tiffany and Juanita Tiffany, his wife, Appellants.

Page 309

2 Wn.App. 309

467 P.2d 629

Rose DAGGETT, Respondent, v. Edwin TIFFANY and Margaret Tiffany, his wife; and Keith Tiffany and Juanita Tiffany, his wife, Appellants.

No. 71--40750--III.

Court of Appeals of Washington, Division 3.

April 9, 1970.

Merrick, Burgess & Hofstedt, H. J. Merrick, Seattle, for Edwin tiffany.

Hughes, Jeffers & Jeffers, Joseph L. Hughes, Wenatchee, for Keith Tiffany.

Charles W. Cone, Wenatchee, for respondent.

GREEN, Judge.

Plaintiff, Rose Daggett, brought an action against defendants, Edwin and Margaret Tiffany, and Keith and Juanita Tiffany, for the wrongful death of her minor son, Tony. From a judgment in favor of plaintiff, defendants appeal.

Decedent, who was 5 years 10 months old at the time of his death, lived with his mother, the plaintiff, in a rental house in the community of Malaga near Wenatchee. Defendants, Edwin and Margaret Tiffany, owned property immediately across a county road from plaintiff's residence. This property consisted of approximately 23 acres, including about 10 acres of cherry orchard, two houses, a barn and other outbuildings. Defendants, Keith and Juanita Tiffany, rent one of the houses from his father, Edwin; it is separated from Edwin's house by a driveway and a yard.

On Saturday, August 5, 1967, Keith removed a motor from an old automobile. On the following day, he, with the aid of a chain hoist, placed the motor on Edwin's two-wheel orchard trailer. The trailer was made by Edwin from an old automobile frame. It was 15 feet in length with a 3-foot tongue, 25 to 30 years old, no sideboards; and the floor boards consisted of broken, worn rough lumber. Keith placed the four to five-hundred-pound motor in the center of the trailer in line with the axel so that the front of the motor faced one wheel and the back of the motor faced the other. Keith, using a tractor, towed and parked the trailer behind Edwin's barn. It could not be seen from Edwin's house, approximately 150 feet away. On parking the trailer, the weight of the motor caused the tongue to touch the ground and the rear to rise approximately 3 or 4 feet. Nothing was done to prevent the motor from rolling in either direction except the placing of a 4 4-inch wooden block under the exhaust manifold nearest the rear of the trailer. (Counsel attempted to impeach this testimony by reading from a pre-trial deposition, but the deposition was never introduced into evidence.)

The fatal injury occurred on Tuesday, August 8, 1967. The only visual evidence of how the accident occurred came from answers to interrogatories by Kelly R. Harrington, one of the children at the scene of the accident. These answers disclose that Kelly and other children were playing near the orchard trailer. Kelly was leaning against one side of the rear of the trailer with his elbows resting on it; Dennis Tiffany, about 3 years old, was sitting on the other side of the trailer approximately 2 or 3 feet from the rear; decedent was leaning against the centerrear of the trailer. While so standing, Kelly felt the trailer rock as if the tongue had come off the ground and suddenly the trailer rocked again and the rear end of the trailer came down hitting the ground rolling the engine off the trailer and onto decedent.

The record discloses the decedent, as well as the other children, had been warned to stay off the orchard trailer. The evidence establishes that the children often played in each other's yards; that after the motor was placed on the trailer, defendant, Keith Tiffany, specifically warned his children to stay off the trailer but did not warn the decedent.

The jury returned a verdict in favor of plaintiff for $15,857.34.

First, defendants, Keith and Juanita Tiffany, contend the trial court erred in failing to grant their motion for a directed verdict. It is their position that plaintiff failed to establish sufficient facts to justify submission of the case to the jury under the doctrine of attractive nuisance. Specifically, it is claimed the evidence did not establish the first element of that doctrine (1) the instrumentality or condition must be dangerous in itself, that is, it must be an agency which is likely to, or probably will, result in injury to those attracted by, and coming in contact with, it; * * *.

Holland v. Niemi, 55 Wash.2d 85, 345 P.2d 1106 (1959); Schock v. Ringling Bros. & Barnum & Bailey Combined Shows, 5 Wash.2d 599, 616, 105 P.2d 838 (1940). Defendants rely upon Holland v. Niemi, Supra, where it was contended that a boat in an unstable condition leaning against a wall constituted an attractive nuisance. The court there sustained a demurrer to plaintiff's complaint. Defendants argue that the trailer with the motor on it, in the instant case, is in the same category as the boat in the Holland case and is not 'dangerous in itself.' We disagree. The comparatively round shape of the motor is clearly demonstrated by the photographs in evidence. Likewise, it is clear the motor was lying crossways at or near the fulcrum of the trailer, where slight movement on the rear of the trailer could cause the motor to roll. The combination of the round shape of the motor and its location on the two-wheel trailer created an issue of fact for the jury as to whether this condition was 'dangerous in itself.' Cf. Copfer v. Golden, 135 Cal.App.2d 623, 288 P.2d 90 (1955); Selby v. Tolbert, 56 N.M. 718, 249 P.2d 498 (1952). In these respects, the instant condition differs from...