Graves v. Washington Water Power Co.

• Decision Date: 13 December 1906
• Court: Washington Supreme Court
• Parties: GRAVES v. WASHINGTON WATER POWER CO.

87 P. 956

44 Wash. 675

GRAVES v. WASHINGTON WATER POWER CO.

Supreme Court of Washington

December 13, 1906

Appeal from Superior Court, Spokane County; Miles Poindexter, Judge.

Action by Philip L. Graves, by Marie L. Graves, as guardian ad litem, against the Washington Water Power Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

H. M Stephens, for appellant.

O. C. Moore and F. T. Post, for respondent.

ROOT, J.

This appeal is from a judgment against appellant for personal injuries sustained by respondent, a boy of 15 years of age. The complaint sets forth that respondent was injured by reason of contact with the wires of appellant, which were charged with electricity; that the power house of appellant is immediately east of what is known as the 'Monroe Street Bridge,' which spans the Spokane river, and connects Monroe street on the north and south sides of said river; that said bridge is a public thoroughfare, and is the property of the city of Spokane; that the driveway, roadway and footpaths of said bridge are at the height of about 100 feet from the water in said river; that said bridge is supported by piers built by means of plates of steel at a slight angle, with strips to and from such plates, set at an angle, so that same can be used as a ladder, which alleged ladders are inviting and attractive to small boys to climb and play thereon; that some of said piers and alleged ladders are near the power house of appellant; that appellant's electric wires are in close proximity to one of said piers that by reason of the construction of said piers in said ladder-like form, in close proximity to said river, and that at certain seasons of the year pigeons are in the habit of nesting and rearing their young on the beams and around the top of said bridge, said bridge and the supports thereof were attractive to small boys, and that small boys frequented same for playing and climbing thereon, and had done so for a long time, and that appellant knew, or should have known, thereof. It is further alleged that on March 10 1905, respondent climbed one of said piers, and, when about 30 feet high, something touched his coat, and he involuntarily put out his hand, and took hold of a live wire, and received the shock and injury complained of, and that as respondent fell he came in contact with other wires; that his fingers and thumb had to be amputated. A demurrer was interposed to the complaint and overruled. Appellant answered, denying the material allegations of the complaint, except formal matters, and those covered by the following admissions: 'That respondent was at least 15 years old at time of accident; that appellant is a corporation, and engaged in manufacturing electricity, and furnishing and selling same; that its power house is on the south bank of the Spokane river, immediately east of the piers of the Monroe Street Bridge; that the top of said bridge is used as a public thoroughfare; that the roadway or top of said bridge is at a great height from the ground and water underneath same; that said bridge is held in position by a series of steel supports of great height; that the said supports, in some places, are held together by steel plates or slats of steel, which slats or plates are run from one support to another on an angle; that on and prior to March 10, 1905, poles and wires were maintained at the place complained of, and that some of the wires were constantly charged with electricity.' The defense of contributory negligence was pleaded, and it was alleged that appellant had used the best means of insulation known to science.

There is but little controversy between the parties as to the character of the bridge, and the location and use of the electric wires. It appeared from the evidence that pigeons were in the habit of nesting about the bridge, and that boys sometimes climbed the piers in order to catch the pigeons, or find their nests, and sometimes as a matter of sport, and in playing such games as 'follow the leader.' It appears that near the foot of the piers on the other side of the river there were good play grounds, but such was not the case on the side where respondent was injured, although boys were frequently about there. It was in evidence that boys were seen playing about the bridge at different times during the period of two or three years immediately prior to this accident. It does not appear that they were in the habit of climbing the pier near which the wires were, and from which respondent fell. The evidence does not show that appellant had actual knowledge of boys climbing these piers, nor that there was such an amount of climbing near the wires as would impute knowledge to it thereof. Respondent's witness McCormick, bridge foreman and inspector for the city, testified that the bridge was 138 feet above the water in the river; that the lattice work was sharp and hard on the feet and hands, and did not make a good ladder; that he had sometimes seen boys around the bridge, usually at the other end, and had driven them away; that he had never seen boys on any of the piers higher than 23 or 24 feet. This evidence did not seem to be disputed in any material part. Another of respondent's witnesses, one Rogers, a policemen of the city of Spokane, testified that his duties required him to be near this bridge; that he had seen boys playing about the bridge off and on for two or three years; that he had orders to chase them away, and did so. He had never seen them climb the piers, but had seen them on top of the bridge at each end; that he had orders to keep the boys away from there. One Gannon, a witness for the respondent, had seen boys climbing all over the bridge, but usually at places other than where this accident occurred. He worked for the city, and was in the habit of chasing the boys away. Respondent testified that he was playing 'hookey' from school; that he saw some pigeons flying about the bridge, and climbed one of the piers; that he felt something touch the back of his coat, and reaching around and without seeing the wires, involuntarily took hold of one, and was thrown to the ground by the shock, his hand being badly burned; that he could have seen the wire had he looked. He stated that he had never previous to that time been under or climbed about the bridge. It appears from the evidence that the electric wires do not run exactly straight or parallel with the bridge, but are nearer to this particular pier than to any other. Respondent was 30 or more feet from the ground when he fell. The plates or strips of steel were 12 to 15 inches long, 2 or 3 inches wide, one-fourth of an inch thick, with sharp corners or edges, and fastened upon the steel piers so as to form sharp angles, rather than being attached at right angles as is the case with the rungs of an ordinary ladder. The wire nearest to the pier was 15 1/2 inches distant therefrom, and was on the lowest arm of the electric pole, and was insulated and carried comparatively low voltage. The next wire above was 18 inches from the pier. From the complant and evidence we think it unquestionably appears that respondent took hold of a wire some distance above those two wires which was heavily charged with electricity, and some 30 inches from the bridge pier.

It is urged by appellant that the complaint does not state a cause of action, and that the evidence introduced is not sufficient to support any verdict or judgment in favor of respondent. It is contended that the respondent was a trespasser toward whom the appellant owed no duty other than to avoid willful injury; that its wires were being used for a legitimate purpose, in a place where they had authority to place them and that there is nothing in the circumstances alleged or proven sufficient to fix liability upon it for the injuries sustained by respondent. Respondent meets these contentions of appellant by the assertion of several propositions which we will consider seriatim. He urges first: 'The law imposes on persons manufacturing and dealing in or handling highly dangerous elements and substances, such as electricity and dynamite, the duty of exercising the highest degree of care to protect persons from danger in all places where the general public may rightfully go for purposes of business or pleasure.' Accepting this as a correct statement of the law, let us apply it to the facts of this case. Can we say that 'the general public may rightfully go for purposes of business or pleasure' up or down the side of a high and almost perpendicular pier of a public bridge across a river, climbing upon the diagonally attached slats of steel as did respondent? Was it...