Kedziora v. Washington Water Power Co.

• Decision Date: 28 December 1937
• Docket Number: 26738.
• Citation: 193 Wash. 51,74 P.2d 898
• Parties: KEDZIORA et ux. v. WASHINGTON WATER POWER CO.
• Court: Washington Supreme Court

74 P.2d 898

193 Wash. 51

KEDZIORA et ux. v. WASHINGTON WATER POWER CO.

No. 26738.

Supreme Court of Washington

December 28, 1937

Department 2.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, Judge.

Action for wrongful death by Mike Kedziora and Lottie Kedziora husband and wife, against the Washington Water Power Company. From a judgment for defendant notwithstanding a verdict for plaintiffs, plaintiffs appeal.

Affirmed.

G. M Ferris and Wernette & Crowley, all of Spokane, for appellants.

Post Russell, Davis & Paine, of Spokane, for respondent.

BEALS Justice.

Mike and Lottie Kedziora brought this action for the purpose of recovering damages on account of the death of their minor son, John Kedziora, who was killed by an electric shock received from a power line owned and operated by defendant, the Washington Water Power Company.

John Kedziora, a lad eleven years of age, on the afternoon of March 19, 1934, was flying his kite in a tract of vacant land to the south of Thirty-seventh avenue, an unpaved road, in the suburbs of the city of Spokane. The district was rather sparsely settled. John and his friend, Teddy Carl, were flying the former's kite, to which was attached from one to two hundred feet of cotton string. In order to allow the kite more extended range after all their string had been placed in use, John had attached to the string a fine copper wire, two or three hundred feet in length. After the boys had been flying their kite for some time, they were joined by two little girls, about eight years of age, referred to in the testimony as the Peterson twins. In the course of the children's play, one of the girls broke the wire, and the kite came to the ground at some distance from the children, about 40 feet to the north and on the other side of a power line maintained by defendant along Thirty-seventh avenue. The kite line came to rest across the power wire, and when the children finished their play, the boys separated and John went in search of his kite. Shortly thereafter there was a flash and a loud noise, and, upon investigation, John's body was found 35 or 40 feet north of the power line, the kite resting on the ground about 20 feet from the body in the direction of the power line. Some of the line which had held the kite was lying, as a witness said, 'rather tangled,' beside the body. It is probable that the boy had started to pull in the kite line, and, the ground being wet, a circuit had been established, with the result that he had received a shock sufficiently severe to cause instant death. His body was badly burned, but there were no burns upon his hands.

Plaintiffs contended that the defendant had been negligent, in that it maintained its electric wires, carrying approximately 60,000 volts, on poles bearing no signs or danger signals giving warning of the fact that the wires were carrying a high voltage. It is also contended that children had for some time been accustomed to fly their kites in the vicinity of these power lines, and that the company had notice of this fact, and should have taken some steps to give warning of the serious injury which might result from contact with the wires. It appeared that the defendant maintained another high power line on Twenty-ninth avenue, a few blocks north of Thirty-seventh avenue, and that the poles carrying these wires were marked 'Danger--High Voltage.'

Defendant denied all negligence on its part, and pleaded that the lad's death was caused through his own carelessness and negligence, or through the fault and negligence of plaintiffs. The action was tried to a jury, and resulted in a verdict in plaintiffs' favor in the sum of $775. The defendant moved for judgment in its favor notwithstanding the verdict, and plaintiffs moved for a new trial. The court granted defendant's motion, and refused to grant plaintiffs a new trial. From a judgment entered in defendant's favor notwithstanding the verdict, plaintiffs have appealed.

Error is assigned upon the order of the court granting respondent's motion for judgment, and upon the entry of judgment in respondent's favor; also upon the denial of appellants' motion for a new trial.

Appellants rely upon the well-established rule that a judgment notwithstanding the verdict of a jury involves no element of discretion, and may be granted only when there is neither evidence nor reasonable inferences from evidence sustaining the verdict. Brown v. Walla Walla, 76 Wash. 670, 136 P. 1166. Appellants also invoke the rule laid down in the case of Buttnick v. J. & M., Inc., 186 Wash. 658, 59 P.2d 750, 751, in which we said: 'A challenge to the sufficiency of the evidence or a motion for nonsuit admits the truth of plaintiff's evidence and all inferences that can reasonably be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant, or in the light most favorable to the plaintiff. Weinman v. Puget Sound Power & Light Co., 175 Wash. 73, 26 P.2d 395; Ball v. Pacific Coast R. Co.,

182 Wash. 221, 225, 46 P.2d 391.'

It appears that respondent demurred to appellants' complaint, and that the demurrer was argued Before the same judge who later presided over the trial, the court, after argument, entering its order overruling the demurrer. In passing upon the demurrer, the court stated that the same would have been sustained but for the allegation that children flew kites in the vicinity of the power lines with the knowledge of respondent.

On the day following the accident, a Spokane daily paper carried a warning to kite-fliers, in the form of a statement by respondent's safety engineer. The notice called attention to the self-evident truth that the use of wire in flying kites is extremely dangerous, and also stated that certain atmospheric conditions might cause even a string to transmit an electric charge. Kite-flying is a favorite springtime sport, and it appears that it was extensively indulged in in the neighborhood of respondent's lines. Appellants argue that respondent was negligent in not placing warnings upon its poles, and that it should have published notices in the newspapers, and sent notices to the schools, warning parents and children of the danger of making contact with the power wires. One of respondent's employees testified that when the poles were originally placed along Thirty-seventh avenue, a notice, 'Danger--High Voltage,' or words of similar import, was painted on the poles, but that the words had been largely obliterated when the poles were repainted.

Appellants cite the case of Clark v. Longview Public Service Co., 143 Wash. 319, 255 P. 380, in which a judgment in favor of an eighteen year old girl, based upon injuries which she received as the result of her hair blowing against some high voltage wires used in connection with a pump house and transformer, was affirmed. It was held that the defendant must have known that great numbers of persons, young and old, were in the habit of congregating near the pump house, and should have reasonably anticipated that young persons might enter the inclosure through holes in the wire fence and be injured by the high voltage wires within the inclosure. The court held that the question of whether or not the owner of the pump house was negligent constituted a question for the jury. There were signs on two sides of the inclosure, warning passersby of danger, but there was no warning sign on the side where the plaintiff entered.

Appellant also relies upon the case of Talkington v. Washington Water Power Co., 96 Wash. 386, 165 P. 87, and upon the case of Znidersich v. Minnesota Utilities Co., 155 Minn. 293, 193 N.W. 449, 450. In the case last cited, the Supreme Court of Minnesota upheld a recovery in favor of a boy who, for the purpose of recovering his kite, climbed a pole bearing a power wire, and was injured as a result of coming in contact with heavily charged and uninsulated wires. The court observed that there were no signs giving warning that the pole was dangerous, the court holding that the facts brought the case within the rule 'that one who keeps and maintains upon his premises dangerous instrumentalities or agencies likely to attract children of tender years in play, or permits such conditions to remain thereon with the knowledge that children are in the habit of resorting thereto for amusement and pastime, is liable to a child who is injured therefrom.'

It appeared that the poles carrying the power wires stood on a public highway adjoining an unfenced tract of land used by children as a playground, and that the poles were equipped with permanent contrivances serving the purpose of a ladder for climbing the same. As above noted, the court applied the attractive nuisance doctrine, and apparently based its decision largely upon that rule, which is inapplicable to the case at bar.

Appellants also argue that the exact cause of John's death was a question for the jury. Respondent contended in the court below that the wire which was attached to the kite string, when coming in contact with the power wire, made the circuit which caused John's death. Appellants argue that death did not necessarily result from contact of the kite wire with the power line, and that under the evidence the jury might have found that the kite string and not the wire carried the electric charge. It is, of course, impossible to determine from the evidence absolutely and beyond question exactly what the situation was at the moment the electric charge struck the boy. The evidence, as we view it, amounts to a practical demonstration that the boy had commenced to pull in his kite line, and that when the wire which had been attached to the kite string passed over the power line, the fatal charge took effect, possibly through...