Downs v. Sulphur Springs Valley Elec. Co-op., Inc.

• Decision Date: 15 May 1956
• Docket Number: No. 5945,5945
• Citation: 80 Ariz. 286,297 P.2d 339
• Parties: Edward M. DOWNS, Appellant and Cross-Appellee, v. SULPHUR SPRINGS VALLEY ELECTRIC COOPERATIVE, Inc., a corporation, Appellee and Cross-Appellant.
• Court: Arizona Supreme Court

Page 339

297 P.2d 339

80 Ariz. 286

Edward M. DOWNS, Appellant and Cross-Appellee, v. SULPHUR SPRINGS VALLEY ELECTRIC COOPERATIVE, Inc., a corporation, Appellee and Cross-Appellant.

No. 5945.

Supreme Court of Arizona.

May 15, 1956.

Conner & Jones, and James M. Murphy, Tucson, Gentry & Gentry and James F. McNulty, Jr., Bisbee, for appellee and cross-appellant.

Daniel E. Moore, Bisbee, for appellant and cross-appellee.

WINDES, Justice.

Wrongful death action wherein plaintiff Edward M. Downs brought suit against defendant Sulphur Springs Valley Electric Cooperative, Inc., a corporation, to recover damages for the death of plaintiff's eleven-year-old son, Edward Holt Downs. After trial before a jury resulting in verdict and judgment in the sum of $7,500, plaintiff appeals and defendant cross-appeals.

Defendant is a cooperative furnishing electrical power to its members and maintains a power plant yard at McNeal, Arizona. The premises was enclosed by a four-foot-high metal link fence with an open gateway and located thereon was a building containing a generating plant; a substation consisting of transformer which was enclosed within an eight-foot fence; and outside this enclosure an automatic circuit breaker connected with the substation. The automatic circuit breaker which was not fenced consisted of a sixty-foot-high framework beneath which were three tanks of oil installed in a separate steel framework and suspended off the ground. Atop this latter framework and some distance above the oil tanks was an orangecolored glass cap used as a gauge to determine the amount of oil in the tanks. Electrical power was transmitted through the oil breaker to the transformer. The lowest point on the automatic circuit breaker at which electrical energy could be contacted was twelve feet from the ground. The breaker was capable of handling 69,000 volts but was receiving only 44,000 volts at the time of the accident which resulted in the child's death.

Plaintiff was an employee of defendant and with the exception of a two-year period had been so employed since 1942 and was employed in November, 1952, as a diesel operator. Plaintiff had two children of school age and occasionally, when plaintiff's wife was not at home, it was the practice for these children to come to the plant and wait for their father to go off duty.

On the afternoon of November 4, 1952, plaintiff was on duty at the generating plant and his wife was working on an election board. When school was out, the children came to the plant. Plaintiff was working inside the building. On two occasions he looked out and observed the children, together with children of persons who lived near the premises, playing in the area near the substation and automatic circuit breaker. He could hear them playing in the yard. He did not warn them away from the equipment.

A little after 5:00 o'clock p. m. after plaintiff had checked the meters, the alarm sounded indicating a short circuit. Plaintiff ran outside to find his son lying on the ground unconscious, his clothes burning. The boy was immediately taken to the hospital in Douglas where he died the following day.

According to the children playing with decedent, they had been playing among wire spools and other equipment on the premises. Three of the children including decedent started to climb upon the automatic circuit breaker 'to find out what was in the glass jars up there'. There was a sudden flash, 'like a rainbow' and decedent fell to the ground. The flash burned the face of one of the other children who felt a shock and jumped to the ground.

Plaintiff testified that he had instructed his son about the dangers of electricity and on occasion had the boy working with him installing an electrified fence and working on electrically operated water pumps. The boy had been warned by his father not to go in or around the substation.

Defendant's cross-appeal is based upon the contention that the sole cause of the death of the child was the act of plaintiff in introducing or exposing the child to a dangerous instrumentality. The correct answer is dependent upon whether under the evidence the jury could legally find that the defendant was negligent and, if so, whether the jury was authorized to find that such negligence was a proximate cause of the death. Whether the defendant was negligent calls for an application of the law measuring the extent of liability of one who maintains on his premises an artificial condition or instrumentality inherently dangerous to small children who might be tempted to intermeddle or tamper therewith. Such a situation is said to create an attractive nuisance.

The decisions in various jurisdictions cannot be entirely harmonized. There is no occasion, however, for confusion or much disagreement if the problem is approached and tested by the ordinary rules of law applicable to negligence. Negligence is simply determined by whether under the conditions then and there existing one should realize there is or should be anticipated an unreasonable risk of harm to one in the position of the injured person. When determining whether liability should be imposed under the so-called attractive nuisance doctrine, we should inquire what is the extent of the probability of resulting injury and the practicability of protection to obviate the same. If one maintains on his premises an artificial, dangerous instrumentality under such conditions that he as a reasonable person should anticipate the access of children who would not realize the dangers involved and should anticipate that there is an unreasonable risk that the instrumentality would tempt or entice the child to trespass by tampering, playing or intermeddling therewith and that there is an unreasonable risk of harm resulting from such trespass, he is negligent, unless to provide protection against the harm would involve serious interference with the owner's use of his premises or would entail unduly burdensome costs. A good illustration of the circumstances under which an inherently dangerous condition may be legally maintained without protective devices to obviate injury or death to children is found in the case of Salladay v. Old Dominion Copper Min. Co., 12 Ariz. 124, 100 P. 441.

There was evidence from which the jury could find that the defendant knew or should have known that small children who did not realize the danger might play in and around the circuit breaker which was capable of being climbed to a point of danger. There was evidence from which the jury could say that a reasonably prudent person should have realized that such children would be enticed to climb and play upon the same; that if they did, there was an unreasonable risk of injury to them and that such risk could have been obviated without interference with the use necessarily being made of the premises or without unduly burdensome difficulties or expense. The jury could further find that the decedent climbed to the place of his injury by reason of having been attracted to the circuit breaker and that he did not appreciate the dangers involved. It follows, therefore, that the jury were legally justified in finding that the defendant was negligent.

With evidence from which the jury could find the defendant negligent and assuming that the evidence likewise establishes that the plaintiff in bringing the child to the premises which resulted in his being exposed to the hazard was also negligent and the concurrence of the two acts of negligence were the proximate cause of the death of decedent, the question of contributory negligence would have to be submitted to the jury. Under such conditions, Article XVIII, § 5, Arizona constitution, deprives the court of the power to say as a matter of law there was contributory negligence. Campbell v. English, 56 Ariz. 549, 110 P.2d 219. The court correctly submitted this question to the jury.

The complaint alleged wilful and wanton negligence and asked for punitive damages. Prior to answering, defendant moved to strike this portion of the complaint which motion was denied. At the beginning of the trial the motion was renewed and denied. When the evidence was in, the motion was again renewed and was granted, and the jury was instructed that no punitive damages could be recovered. Plaintiff says that he has been illegally prejudiced for the reason that under the law and the evidence he is entitled to have the jury pass upon this question and for the...