Johnson v. United States, 16350.

• Decision Date: 29 September 1959
• Docket Number: No. 16350.,16350.
• Citation: 270 F.2d 488
• Parties: Merle H. JOHNSON, Administrator of the Estate of Stanley Matt Johnson, Appellant, v. UNITED STATES of America, Appellee. Merle H. JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

270 F.2d 488 (1959)

Merle H. JOHNSON, Administrator of the Estate of Stanley Matt Johnson, Appellant, v. UNITED STATES of America, Appellee.

Merle H. JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

No. 16350.

United States Court of Appeals Ninth Circuit.

July 31, 1959.

As Amended on Denial of Rehearing September 29, 1959.

Longan & Jones, Franklin S. Longan, Billings, Mont., F. F. Haynes, Forsyth, Mont., Harry John Mehr, Glendive, Mont., for appellants.

Krest Cyr, U. S. Atty., Butte, Mont., Waldo N. Spangelo, Asst. U. S. Atty., Billings, Mont., Michael J. O'Connell, Asst. U. S. Atty., Butte, Mont., Jack H. Bookey, Asst. U. S. Atty., Butte, Mont., John F. Blackwood, Asst. U. S. Atty., Billings, Mont., for appellee.

Before POPE, STEPHENS and HAMLIN, Circuit Judges.

HAMLIN, Circuit Judge.

On July 4, 1955, Stanley Matt Johnson, a minor of the age of four-and-a-half years, received severe burns from electrical energy transmitted through a substation operated by the Bureau of Reclamation, United States Department of the Interior, at Forsyth, Montana. Stanley lived approximately four hours before dying as a result of these severe injuries. Thereafter, two actions were brought under the Federal Tort Claims Act for the recovery of damages. One action (Civil No. 49) was prosecuted by Merle H. Johnson as Administrator of the Estate of Stanley Matt Johnson under the Montana Survival Statute (§ 93-2824, R.C.M.1947). The other action was brought by Merle H. Johnson, the father of the minor, under the wrongful death statute of Montana (§ 93-2809, R.C.M.1947). The cases were consolidated for trial and were tried before the United States District Court of Montana without a jury.

The Court rendered a judgment in favor of the defendants and this appeal followed. No question is raised as to the jurisdiction of the District Court or of this Court.

The substation where the tragedy occurred was located in the town of Forsyth in a residential area. The substation was enclosed on four sides by a seven-foot woven wire mesh fence which had two gates of the same material. Three strands of barbed wire were stretched on projections extending approximately one foot above the woven wire fence. These projections extended above the steel pipe posts and slanted outward at approximately a 45-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. Thus, at these points the three strands of barbed wire, about four inches apart, instead of forming an eave-like projection toward the outside, lay one directly above the other in the same plane as the posts and the mesh fence. A "Danger, High Voltage" sign was suspended from each gate.

Inside the fence were three high-tension transformers located on the ground and three oil circuit breaker tanks, elevated some three or four feet above the ground, by means of a metal platform. At the top of each tank were two bushings and caps, through which electrical current was transmitted in the operation of the substation. The topmost portion of each bushing was some eight or nine feet above ground. The amount of current passing through the bushings was approximately 19,400 volts.

From the evidence it appeared that the minor child had apparently climbed over one of the two gates in the fence, had thereafter climbed on a box and had come in contact with the circuit breaker tanks, thus putting him in direct contact with the high voltage electricity.

Plaintiff's complaint had alleged that Stanley had been attracted by "the color of and humming noises emitted from the dangerous equipment" and "discovering and being attracted by the ease by which said gate could be climbed in view of the size of the wire mesh allowing for easy hand and foot hold and the lack of an overhanging barrier across the top," had climbed over the gate, thereby gaining access to the electrical equipment within the substation. Plaintiff further contends that the defendant was negligent in failing to equip the gates with the same type of barrier with which the remaining enclosure was equipped, and in allowing the gate to remain so attractive to the decedent that he climbed over it.

The actions were brought by the plaintiff under the theory of the attractive nuisance doctrine. The accident occurred in Montana, and the law of that state governs this Tort Claims action. McGill v. United States, 3 Cir., 1953, 200 F.2d 873. The doctrine of attractive nuisance has long been recognized in Montana. Gates v. Northern Pacific R. 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.

The rule has been stated in various ways. In Gates, supra, the Court said:

"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 37 Mont. 103, 94 P. 755."

In Restatement, Torts, Section 339, it is said:

"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."

In Gilligan v. City of Butte, supra, 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. pg. 657 118 Mont. 350, 166 P.2d 808."

The same duty of the owner or occupier of property on which an attractive nuisance is maintained to exercise reasonable or ordinary care under the circumstances is set out in 65 C.J.S. Negligence § 29(8)b, at page 466.

The same general rule regarding the duty to exercise reasonable care under the circumstances has been stated to be applicable to companies handling or dispensing electrical power. Bourke v. Butte Electric & Power Co., 1905, 33 Mont. 267, 83 P. 470; and Mize v. Rocky Mt. Bell Telephone Co., 1909, 38 Mont. 521, 100 P. 971. In the latter case the Court quoted at page 975 from Block v. Milwaukee Street Rwy. Co., 89 Wis. 371, 61 N.W. 1101, 27 L.R.A. 365, as follows 100 P. 975:

"So far as reasonable knowledge, in the present state of the science and the practical use of electricity as a motive power for street railways, and reasonable foresight can go, it (the defendant) is bound to guard the public against the perils attendant upon this use of electricity; but it is liable only for what is known as reasonable care. The present state of the science, and the present practical knowledge of the most practical and effectual means and methods of guarding against such perils as are incident to its use, are a most important element in the question of what is reasonable care."

See also Murphy v. Central Kansas Electrical Cooperative Association, 1955, 178 Kan. 210, 284 P.2d 591.

Appellant alleges error in the following.

Over the objection of the plaintiff, defendant United States introduced the expert testimony of three electrical engineers concerning the custom and practice of electrical companies in providing safeguards for substations at various places. All of these witnesses testified that the matter of the construction of the fence and gates around the substation in question conformed to the custom of fencing comparable substations by other companies.

Such evidence is admissible and competent for consideration by the trier of fact on the issue of whether or not negligence has been proven. Dunagan v. Appalachian Power Co., 4 Cir., 1929, 33 F.2d 876, 68 A.L.R. 1393; Hellweg v. Chesapeake & Potomac Telephone Co., 1940, 71 App.D.C. 346, 110 F.2d 546. See also 2 Wigmore, On Evidence, (3rd Ed., 1940) Sec. 461, pg. 489. This evidence is not controlling on the question of whether the defendant exercised due care under the circumstances, and the District Court in its opinion has so stated.

The District Court further stated "customary practice is not ordinary care; it is but evidence of ordinary care. Northwest Airlines v. Glenn L. Martin Co., 224 F.2d 120, 50 A.L.R.2d 882, certiorari denied 350 U.S. 937, 76 S.Ct. 308, 100 L.Ed. 818." 163 F.Supp. 394 We see no objection to the admission of this testimony for the purposes stated.

Another specification of error was that "the Court erred in failing to hold that the addition (after the accident) of a barrier over the...