Johnson v. United States

• Decision Date: 11 August 1958
• Docket Number: Civ. No. 49,54.
• Citation: 163 F. Supp. 388
• Parties: Merle H. JOHNSON, Administrator of the Estate of Stanley Matt Johnson, Deceased, Plaintiff, v. UNITED STATES of America, Defendant. Merle H. JOHNSON, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Montana

163 F. Supp. 388

Merle H. JOHNSON, Administrator of the Estate of Stanley Matt Johnson, Deceased, Plaintiff, v. UNITED STATES of America, Defendant.

Merle H. JOHNSON, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. Nos. 49, 54.

United States District Court D. Montana. Billings Division.

May 1, 1958.

Supplemental Opinion August 11, 1958.

Longan & Jones, Neil S. Keefer, Billings, Mont., F. F. Haynes, Forsyth, Mont., Harry John Mehr, Glendive, Mont., for plaintiff.

Krest Cyr, U. S. Atty., Butte, Mont., Dale F. Galles, Waldo N. Spangelo, Asst. U. S. Attys., Billings, Mont., for defendant.

JAMESON, District Judge.

These cases were consolidated for trial before the court, without a jury. Both arise under the Federal Tort Claims Act, 28 U.S.C.A. § 1346, and seek recovery of damages for the death of Stanley Matt Johnson on July 4, 1955, as the result of electrocution from energy transmitted through the substation operated by the Bureau of Reclamation, United States Department of the Interior, at Forsyth, Montana. Civil No. 49 is prosecuted by the administrator of decedent's estate, under the Montana survival statute (Sec. 93-2824, R.C.M.1947); and Civil No. 54 is an action by decedent's father under the wrongful death statute (Sec. 93-2809, R.C.M.1947).

The Bureau of Reclamation operated what is known as an electrical substation, consisting of transformers and other equipment to step down the high voltage current for transmission purposes, and used to supply electric power to rural areas. It was an unattended station and located within the limits of the City of Forsyth, in a residential area, in which it was stipulated 23 minor children lived across the streets from the block in which the substation was located. Because of its importance to the determination of this case, the construction of the substation and surrounding fence will be described in some detail. The court has viewed the premises and has had the benefit of numerous photographs received as exhibits and considerable testimony.

The equipment consisted of the usual poles and cross arms, overhead wires and large porcelain insulators, including three high tension transformers located on the ground and, of particular interest here, three oil circuit breaker tanks elevated some three or four feet above the ground by means of a metal platform. The tanks themselves were approximately four feet in height and at the top of each were two bushings and caps through which electrical current was transmitted in the operation of the substation. It was testified the current which passed through each of the bushings was approximately 19,400 volts.

The fence surrounding the equipment on the date of the accident was constructed of steel-pipe posts set in concrete at regular intervals and a framework of pipe connecting these posts at their tops with horizontal bracing pipes about one-half the height of the fence at the corners and adjacent to the gates, covered from the outside with a seven foot woven-wire mesh fence, two-inch by two-inch diamond-shaped design. Above the fence proper three strands of barbed wire were stretched on projections extending approximately one foot above the woven wire fence and pipe frame work. These projections extended above the steel-pipe posts and slanted outward at approximately a forty-five degree angle, except at the four corners of the fence and at the two double-gates forming a part of the fence. At these points the projections extended vertically above the posts and the three strands of barbed wire, instead of forming an eave-like projection toward the outside, lay one directly above the other in the same plane as the posts and mesh fence.

The two double-gate entrances in the fence (of sufficient width to allow a truck to enter the enclosure) were of the same construction as the fence, consisting of gates of steel pipe framework and woven wire mesh with pipe cross-bars about mid-way. The gates swung either way from steel posts on each side and met in the center with clips which held a center locking bar extending into a socket in the ground and were secured by a padlock. The wire mesh and pipe framework extended to within several inches of the ground when the gates were closed. As before mentioned, the three strands of barbed wire extending the height of the gate to eight feet were vertical and not of the eave-like construction found on the remainder of the fence. "Danger High Voltage" signs were suspended from each gate.

On July 4, 1955, Stanley Matt Johnson, a four and one-half year old child, apparently climbed over the fence at the east gate and thereafter the framework supporting the oil circuit breaker tanks and came in contact with approximately 19,400 volts of electricity, coursing through the bushings at the top of the tanks. He died about four hours later in the hospital.

It is alleged in plaintiff's complaint that the child was attracted by "the color of and humming noises emitted from the dangerous equipment" in the substation, and "discovering and being attracted by the ease with which said gate could be climbed in view of the size of the wire mesh allowing for easy hand and foothold and the lack of an overhanging barrier across the top", climbed over the gate and gained access to the transformers and other electrical equipment within the substation. Plaintiff contends that defendant was negligent in failing to equip the east gate with the same type of barrier with which the remaining enclosure was equipped and in allowing the east gate to remain so attractive to the decedent that he climbed over it.

The determining factor on the question of liability accordingly is the sufficiency of the fence at the gate as constructed on July 4, 1955, as a safeguard against the entry of young children and particularly the decedent.

The Supreme Court of Montana has recognized the attractive nuisance doctrine. Gates v. Northern Pacific Ry. Co., 1908, 37 Mont. 103, 94 P. 751; Martin v. Northern Pacific R. Co., 1915, 51 Mont. 31, 149 P. 89; Gilligan v. City of Butte, 1946, 118 Mont. 350, 166 P.2d 797; Nichols v. Consolidated Dairies of Lake County, 1951, 125 Mont. 460, 239 P.2d 740, 28 A.L.R.2d 1216.

In Gates v. Northern Pacific R. Co., supra, the basis of application of the attractive nuisance doctrine was an analysis of the "turntable case" of Sioux City & Pacific R. R. Co. v. Stout, 1874, 17 Wall. 657, 21 L.Ed. 745, the court quoting at length from the instructions approved by the United States Supreme Court in that case. The court continued: "It is my judgment that when the owner or occupier of grounds brings or artificially creates something thereon especially attractive to children, as shown by the nature of the thing itself and the fact that a child was, or children were, attracted to it, and leaves it so exposed that they are likely to come in contact with it, either as a plaything or an object of curiosity, and where their coming in contact with it or playing about it is obviously dangerous to them, the person so exposing the dangerous thing should reasonably anticipate the injury that is likely to happen to them from its being so exposed, and is bound to use ordinary care to guard it so as to prevent injury to them."

In Nichols v. Consolidated Dairies of Lake County, the court quoted with approval the foregoing excerpt from the Gates case, together with the concurring opinion outlining the conditions necessary for the application of the doctrine: "(1) That the injured child was too young and inexperienced to appreciate the danger, and was therefore incapable of contributory negligence. (2) That the injury was caused by an unguarded, dangerous machine, or other dangerous thing peculiarly attractive to children of the class to which the injured one belongs. (3) That the landowner impliedly invited children of that class to come upon his premises. This invitation may be implied from the fact that the landowner knew, or, in the exercise of ordinary care, ought to have known, that such children were in the habit of coming on his premises to play or to gratify their childish curiosity." 239 P.2d at page 741.

The court also quoted as a "statement of the facts necessary to satisfy the requirements for application of the attractive nuisance doctrine" Sec. 339, Restatement of the Law of Torts, Vol. II, page 920: "* * * `A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein'."

It will be noted that in Gates v. Northern Pacific Ry. Co., supra 37 Mont. 103, 94 P. 755, it was held that the owner "is bound to use ordinary care to guard (the property) so as to prevent injury to (young children)". In Gilligan v. City of Butte, supra 118 Mont. 350, 166 P.2d 808, the court said: "* * * The test is whether the injury to plaintiff or to a class of which the plaintiff was one ought reasonably to have been anticipated. `It is not necessary, in order to impose this duty, that injury should be inevitable, that the danger thereof should be great, or even that the chances of injury should exceed the chances of absence of injury; but it is sufficient that injury is likely or reasonably probable.' 45 C.J. p. 657. When an instrumentality has a recognizable...