Deffland v. Spokane Portland Cement Co.

• Court: Washington Supreme Court
• Writing for the Court: JEFFERS, Justice.
• Citation: Deffland v. Spokane Portland Cement Co., 176 P.2d 311, 26 Wn. 2d 891 (Wash. 1947)
• Decision Date: 06 January 1947
• Docket Number: 30006.
• Parties: DEFFLAND v. SPOKANE PORTLAND CEMENT CO.

176 P.2d 311

26 Wn.2d 891

DEFFLAND v. SPOKANE PORTLAND CEMENT CO.

No. 30006.

Supreme Court of Washington

January 6, 1947

Department 1

Rehearing Denied Feb. 21, 1947.

Action by R. L. Deffland, the father of Gerald Deffland, against the Spokane Portland Cement Company and another, for death of the minor allegedly caused by contact with electric wires wherein defendant Washington Water Power Company was dismissed at the close of plaintiff's case. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

Appeal from Superior Court, Spokane County; E. W Schwellenbach, judge.

Harvey Erickson and Frank R. Freeman, both of Spokane, for appellant.

Witherspoon Witherspoon & Kelley, of Spokane, for respondent.

JEFFERS Justice.

This action was instituted by R. L. Deffland, the father of Gerald Deffland, a minor aged thirteen years, in the superior court for Spokane county, against Spokane Portland Cement Company, a corporation, and Washington Water Power Company, a corporation, under and by virtue of the provisions of Rem.Rev.Stat. § 184, to recover for the alleged wrongful death of the minor, claimed to have been caused by Gerald Deffland coming in contact with high voltage electric wires located on the premises of defendant Portland Cement Company.

The trial court dismissed defendant Washington Water Power Company at the close of plaintiff's case. No appeal was taken from the judgment entered relative to the dismissal of the last named defendant.

Defendant Spokane Portland Cement Company, by its answer, denied all the material allegations of plaintiff's amended complaint, and alleged affirmatively contributory negligence on the part of Gerald Deffland.

The cause came on for hearing Before the court and jury on March 5, 1946. At the close of plaintiff's case, defendant challenged the sufficiency of plaintiff's evidence to sustain a verdict in favor of plaintiff, and moved the court for a nonsuit on three grounds: (1) that the evidence was not sufficient to establish negligence on the part of defendant; (2) that the facts show that Gerald Deffland was guilty of contributory negligence; and (3) that the attractive nuisance doctrine was not applicable.

On March 13, 1946, the trial court made and entered an order and judgment of dismissal, wherein the court sustained defendant's challenge to the sufficiency of plaintiff's evidence, granted defendant's motion, and entered judgment dismissing the action.

Plaintiff has appealed from the judgment entered, and assigns error on the refusal of the trial court to permit John Hannus, a companion of the deceased, to testify as to his knowledge of the danger involved in being in close proximity to the electric wires; on the refusal of the court to permit the case to go to the jury as to Spokane Portland Cement Comapny for its determination on the merits; and on the granting of a nonsuit and the directing of a verdict for that defendant.

In view of the questions presented in this case, a somewhat extended statement of the facts will be necessary, and in making this statement and the conclusion to be drawn therefrom, we are mindful of the rule that a challenge to the sufficiency of the evidence or a motion for nonsuit admits the truth of the plaintiff's evidence and all inferences which can reasonably be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant, or in the light most favorable to the plaintiff. Kedziora v. Washington Water Power Co., 193 Wash. 51, 74 P.2d 898.

Respondent for some years has been and was on August 31, 1945, maintaining and operating a cement plant near Millwood, in Spokane county, Washington. The buildings occupied by respondent cover a wide area, and there are several entrances to the buildings. The plant premises are not fenced, for the reasons, as stated by Mr. Neill, the plant superintendent, that there would have to be four or five gates over railroad tracks; that trains come into the plant at all hours of the day and night; that it would take over two miles of fence to enclose all the buildings. Some parts of the buildings are three stories high.

At different points on the premises there are signs posted reading 'No Admittance Without Pass from Office.' (Plaintiff's Ex. 10) There was some evidence that some of these signs had become dim from dust, but John Hannus, who was with Gerald Deffland on the day of the accident, testified that both he and the deceased saw the signs.

Respondent obtains its electricity from Washington Water Power Company, which delivers the current to a pole described as being in front of the office building, and from there it is taken into the plant by respondent on its own poles, wires and other equipment.

We are here particularly concerned with that part of respondent's building described as the 'cupola' or 'disconnect room,' and especially with an opening leading into this disconnect room, together with the conditions surrounding such opening and the means by which the opening can be reached.

The cupola or disconnect room, together with the openings into such room from the outside, are shown on several of plaintiff's exhibits, namely, exhibits 1, 2, 3 and 9. Exhibits 1 and 9 show the opening in the part of the building to the right of the cupola through which the deceased and John Hannus went on the day of the accident, thus gaining admission to the roof of the building below such opening, over which roof they went to get up to the opening in the cupola. It is thirty-five feet from the edge of this roof to the ground, and about twenty feet from where the boys came out onto the roof up to the opening in the cupola. This roof has a one-quarter pitch, which according to the testimony means that it has a rise of six inches to the foot.

The openings into the cupola, of which there are three, are thirty-nine inches wide and sixty-eight inches high. In the center of the opening is an insulator thirty inches high, leaving from fourteen to twenty inches on each side between the insulator and the side of the opening. The wires come down to an insulator above each one of these openings, and another wire goes from the wires last mentioned to the insulator in each opening, and thence into the disconnect room. From the left side of the cupola a guard rail extends down to the edge of the roof below the openings. There is also a guard on the roof above each opening.

The Washington Water Power Company delivers sixty thousand volts of electricity to respondent.

The wires running from the poles to the disconnect room are not insulated. However, Mr. Steenbergen, called by appellant as an expert, testified that while it was possible, by means of an oil filled cable, to insulate a wire carrying sixty thousnad volts, it would not be possible to use this method where the wire is strung from poles, because of the weight.

The disconnect room is reached inside the plant by going up three flights of stairs. At the top of the stairs is a door which is always kept locked, and on this door is a sign which reads 'Danger, High Voltage, Keep Out.' When one enters this room by the way last above indicated, he still has to go up a ladder to get to the insulators hereinBefore referred to.

Apparently these various openings in the buildings had permitted pigeons to go into the building, where they nested and raised their young, referred to as 'squabs.'

There were about twenty men employed in the plant during the time it was operating, and when not operating there was a watchman who made the rounds of the plant.

There is no question but that it appears from the evidence that respondent had been bothered by boys coming to the plant after pigeons, prior to August 31, 1945. It also appears that on different occasions boys had been chased out of the plant, and some of them spanked when they became defiant.

Gerald Deffland was an average boy between thirteen and fourteen years of age at the time of this unfortunate accident. According to the testimony of his mother, he was a healthy, normal boy, and was in the seventh grade. He lived about a mile from the plant, and was quite friendly with John Hannus.

John Hannus was a normal, intelligent boy. While he did not admit that the boys sneaked into the plant when they went after pigeons, he did admit that they avoided the watchman, and it is undisputed that they went to the plant when the men were not working.

Walter King was called by appellant. This witness testified he had been a watchman at the plant; that he had seen pigeons around during the time he worked there, and had seen boys there.

'Q. What were the boys doing there? * * * A. Well, there was some of the boys fetched their bicycles down to the shop down there and would have them fixed, for one thing, principally, that I know of. * * *

'Q. What part of the plant did the boys go in, Mr. King? * * * A. They went through the kiln room down to the machine shop.

'Q. Did you see them in any other parts of the plant? A. No, I didn't pay any attention to them after they went in the machine shop. * * *

'Q. You may state what the boys did there, Mr. King.

'Mr. Kelley: Where, the kiln room or machine shop, if your Honor pleases?

'Mr. Erickson: (Q) In the plant.

'The Court: Any place in the plant.

'Mr. Kelley: At what time?

'Mr. Connelly: Three to four months Before he quit has been established.

'The Court: Yes.

'A. Well, there was boys tried to get in there to hunt for pigeons.

'Mr. Erickson: (Q) And when? A. When I was on duty as watchman.'

On cross-examination Mr. King stated that when the boys tried to get in to get pigeons he chased them out.

John Hannus was twelve years old on October 29, 1945, and was in the seventh grade. He had known Gerald...