Kempf v. Spokane & I. E. R. Co.

• Decision Date: 16 November 1914
• Docket Number: 11911.
• Citation: 144 P. 77,82 Wash. 263
• Court: Washington Supreme Court
• Parties: KEMPF v. SPOKANE & I. E. R. CO.

144 P. 77

82 Wash. 263

KEMPF v. SPOKANE & I. E. R. CO.

No. 11911.

Supreme Court of Washington

November 16, 1914

Department 1. Appeal from Superior Court, Spokane County; Bruce Blake Judge.

Action by William Arnold Kempf, by Ludwig Kempf, his guardian ad litem, against the Spokane & Inland Empire Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss.

Graves Kizer & Graves, of Spokane, for appellant.

Robertson & Miller and F. W. Girand, all of Spokane, for respondent.

MAIN J.

This action was instituted for the purpose of recovering damages for personal injuries sustained through the alleged negligence of the defendant. The cause was tried to a jury and resulted in a verdict and judgment in favor of the plaintiff in the sum of $2,000. The defendant appeals.

The facts are in substance as follows: On April 12, 1911, and for some years prior thereto, the defendant owned and operated an electric railway. This railway line extends along and across certain streets of the city of Spokane. The location of the accident was at or near the intersection of Fifth avenue and Hogan street. Hogan street extends north and south, and Fifth avenue east and west. The railway line crosses Fifth avenue a little east of the intersection of that street with Hogan street. At the southwest corner of these two streets there is a vacant lot or tract of ground upon which boys, and sometimes men, of the neighborhood play ball. South of Fifth avenue at this point, and back a little distance from the street, is the railway company's transformer station. The streets at this point are not graded. South of the lot which is used as a ball ground there is a high rocky hill. Upon this hill spectators sit and watch the ball game in progress. The railway line crosses Fifth avenue in a cut approximately 35 feet deep and 45 feet from one edge of the cut at the top to the other. The cut had been blasted out of basaltic rock, and its sides were almost perpendicular. The trolley wire is 23 feet above the track at the bottom of the cut. Boys of the neighborhood were accustomed to play in this vicinity, and at times sat upon the edge of the cut and watched the cars pass through below. On April 11, 1911, William A. Kempf then a boy of six or seven years of age, together with other boys of about the same age or a little older, were playing near the intersection of the two streets named. In the vicinity of the transformer station they had picked up a number of short pieces of wire. Apparently not knowing exactly what they expected to do with the wire, they tied the various pieces together. A stone was then tied to one end of the wire. When the boys were near the edge of the cut and in Fifth avenue, one of the boys suggested that they play 'telephone.' One of the boys, Timothy Golithon by name, attempted to cast the rock with the wire tied thereto across to the opposite bank of the cut. This was then to be used as an imaginary telephone line. The Kempf boy, who was injured, at the time the stone was thrown had hold of the other end of the wire. The cast of the stone was not sufficiently strong to carry it to the opposite bank. It fell into the cut, bringing the wire to which it was tied across the trolley wire, and the Kempf boy thereby received the electric current and sustained a severe injury. The trolley wire at this point carried an electric current of 6,600 volts.

The plaintiff claims that the defendant was negligent in failing to have the trolley wire covered or protected at this point in a manner that would have made it impossible for the wire which was thrown by Golithon to have come in contact with the trolley. There was no evidence that prior to this time the boys playing in the vicinity had attempted to enter into any game which would involve the crossing of the cut in any manner. Upon the trial, at the conclusion of the plaintiff's evidence, the defendant challenged the sufficiency thereof and moved for a dismissal of the action. This motion was overruled, and was repeated and likewise overruled at the conclusion of all the evidence.

The question which is decisive of this case is whether the defendant was negligent in failing to guard or cover the trolley wire in some manner. The plaintiff claims that it was...