Helland v. Arland, 28526.

• Decision Date: 12 June 1942
• Docket Number: 28526.
• Citation: 126 P.2d 594,14 Wn.2d 32
• Parties: HELLAND v. ARLAND et al.
• Court: Washington Supreme Court

126 P.2d 594

14 Wn.2d 32

HELLAND v. ARLAND et al.

No. 28526.

Supreme Court of Washington, En Banc.

June 12, 1942

Action by Leland Helland against Rufus H. Arland and Mrs. Rufus H Arland, husband and wife, to recover damages for death of plaintiff's daughter, who died of injuries sustained when she was run over by milk truck owned by defendants. From a judgment for plaintiff, the defendants appeal.

Judgment affirmed.

Appeal from Superior Court, Grays Harbor County; J. M. Phillips judge.

Skeel McKelvy, Henke, Evenson, & Uhlmann and Frank Hunter, all of Seattle, for appellants.

Hogan & Adams, of Aberdeen, for respondent.

BLAKE Justice.

Plaintiff brought this action to recover damages on account of the death of his five-year-old daughter, who died of injuries sustained when she was run over by a milk truck belonging to defendants. The truck was being driven by one Brown, who, at the time, was in the employ of defendants and acting within the scope of his employment. The cause was tried to a jury, which returned a verdict in favor of plaintiff. From judgment on the verdict, defendants appeal.

The accident occurred on North Rogers street in Aberdeen. Brown was a relief driver, but had covered the route several times Before and knew that children of the neighborhood were in the habit of playing about and climbing on the truck when the driver stopped to make deliveries of milk. The body of the truck was specially built for delivering milk. Immediately back of the cab, the sides were open from the floor to the top of the body. There were panels extending from floor to top opposite the rear wheels. Behind these panels, the truck was open at sides and rear from floor to top. There was a window in the rear of the cab from which the driver could see clear through the truck.

On the day of the accident, Brown's wife was with him. Concerning the events immediately prior to, and at the time of, the accident, he testified that three children, Marlene, the daughter of respondent, and two others, age five and three, respectively, came up to the truck and asked for orange juice. After making his delivery of milk, he told the children to get out of the way, 'and they got off the truck, and got back out of the way.' He then got in the truck, marked up his book, and asked his wife if 'everything was clear on her side.' She said, 'Yes.' He looked 'out the rear glass' and then opened the door and looked. 'I looked to see if I could see anyone. I could see these kids behind the truck, but I didn't see this particular one.' Then he started up in low gear. When he had gone a few feet, he heard a scream. He stopped and, going behind the truck, found Marlene lying on the ground. She had either jumped or fallen from the left side of the truck and under the left rear wheel, which passed over her body.

The questions raised on the appeal go to the sufficiency of the evidence to sustain the verdict. Appellants take the position that the child was a trespasser or, at best, a licensee, to whom the driver of the truck owed the duty only of refraining from willful or wanton injury. The rule of law relied on is universally applied to licensees and trespassers. And, it may be that most courts apply the rule to cases of very small children. But some few courts, among which is ours, have repudiated the idea that a child as young as Marlene can be in any real sense a trespasser. In Bjork v. Tacoma, 76 Wash. 225, 135 P. 1005, 1007, 48 L.R.A.,N.S., 331, Judge Ellis said:

'* * * That the child, a mere baby, was a technical trespasser, or at most a mere licensee, is an immaterial circumstance. A child attracted to premises open and unguarded in a populous neighborhood by things maintained thereon enticing to the childish curiosity and instincts is not a culpable trespasser in any sound sense. This is against the weight of authority when measured in mere numbers, which holds the child to the rule applied to the adult who, when injured while trespassing upon the premises of a defendant, can recover damages only when the injury was wanton or was due to recklessly careless conduct on the defendant's part. But, as said by a candid taxt-writer:

"This cruel and wicked doctrine, unworthy of a civilzed jurisprudence, puts property above humanity, leaves entirely out of view the tender years and infirmity of understanding of the child, indeed his inability to be a trespasser in sound legal theory, and visits upon him the consequences of his trespass just as though he were an adult, and exonerates the person or corporation upon whose property he is a trespasser from any measure of duty towards him which they would not owe under the same circumstances towards an adult.' 1 Thompson on Negligence (2d Ed.) § 1026.

'The same writer, after admitting the fact that in many jurisdictions the doctrine of trespass as a defense, even as applied to small children, must be regarded as established law, scathingly reprobating the doctrine as barbarous, says:

"Nevertheless, a few decisions of enlightened and humane courts are found, more or less tending to the conclusion that the owner of any machine or other thing which, from its nature, is especially attractive to children, who are likely to play with it in obedience to their childish instincts, and yet which is especially dangerous to them, is under the duty of exercising reasonable care to the end of keeping it fastened, guarded, or protected so as to prevent them from injuring themselves while playing or coming in contact with it.' 1 Thompson on Negligence (2d Ed.) § 1031.

'The more humane rule, as expressed in another text, has met with our unqualified approval:

"The owner of land where children are allowed or accustomed to play, particularly if it is unfenced, must use ordinary care to keep it in a safe condition, for they, being without judgment and likely to be drawn by childish curiosity into places of danger, are not to be classed with trespassers, idlers, and mere licensees.' Shearman & Redfield on Negligence (6th Ed.) § 705.'

The Bjork case is not determinative of the question now presented because that decision is finally rested on the doctrine of attractive nuisance. But it is authority for the proposition that the driver of the truck owed a duty greater than merely to refrain from inflicting willful or wanton injury. We think 'the more humane rule,' with respect to children who are, and can be, merely technical trespassers, is that of reasonable care. 45 C.J. 701, § 78. Indianapolis, etc., R Co. v. Pitzer, 109 Ind. 179, 6 N.E. 310, 10 N.E. 70, 58 Am.Rep. 387; Meeks v. Southern Pac. R. Co., 56 Cal. 513, 38 Am.Rep. 67; Albert v. Munch, 141 La. 686, 75 So. 513, L.R.A.1918A, 240; Chesapeake & O. R. Co. v. Hawkins, 4 Cir., 174 F. 597, 26 L.R.A.,N.S., 309; Kentucky Central R. Co. v. Gastineau's Adm'r, 83 Ky. 119; Ziehm v. Vale, 98 Ohio St. 306, 120 N.E. 702, 1 A.L.R. 1381; Capano v. Melchinno, 297 Mass. 1, 7 N.E.2d 593. In the Gastineau case, the court observed: '* * * but if they are of such tender years as to be devoid of discretion, then justice and the dictates of humanity require the exercise of reasonable care to prevent their...