Mail v. M. R. Smith Lumber & Shingle Co.

• Citation: 287 P.2d 877,47 Wn.2d 447
• Decision Date: 15 September 1955
• Docket Number: No. 33278,33278
• Court: United States State Supreme Court of Washington
• Parties: Michael Duane MAIL, a minor, by Mildred Mail, his guardian ad litem, and Conrad Mail, and Mildred Mail, husband and wife, Appellants, v. M. R. SMITH LUMBER & SHINGLE COMPANY, a corporation, Respondent.

Page 447

47 Wn.2d 447

287 P.2d 877

Michael Duane MAIL, a minor, by Mildred Mail, his guardian ad litem, and Conrad Mail, and Mildred Mail husband and wife, Appellants, v. M. R. SMITH LUMBER & SHINGLE COMPANY, a corporation, Respondent.

No. 33278.

Supreme Court of Washington, Department 2.

Sept. 15, 1955.

W. J. Murphy, Aberdeen, O. M. Nelson, Montesano, for appellants.

Lester T. Parker, Aberdeen, for respondent.

FINLEY, Justice.

This is an action to recover damages for personal injuries sustained by a child three years of age while he was playing with pike poles on a walkway of defendant's millpond. The complaint is based on the doctrine of attractive nuisance. The trial court sustained a demurrer to the plaintiffs' amended complaint, and entered judgment dismissing the action.

The defendant lumber mill maintained on its premises an artificial open millpond. It was unguarded and without warning signs at the time the minor child was injured. On the bank of the pond, there was a deck from which a walkway extended to the opposite side of the pond. It was upon this walkway that the poles were lying at about the time the minor child was injured. The poles were used by mill employees for the purpose of moving, sorting, storing or handling logs. Each pole had a sharp point at one end. They are further described as being made of light weight metal and of bright color. It is alleged that children living in the neighborhood, including the minor plaintiff, were permitted to play around the millpond and the walkway, with the full knowledge and consent of the defendant. While he was playing on the walkway on the afternoon in question, the minor child was struck in his left eye by one of the pike poles in such a manner as to cause the loss thereof. It does not appear in plaintiffs' complaint just how the injury occurred.

This court has held that the maintenance of a millpond which is not protected or guarded is not an attractive nuisance. Smith v. McGoldrick Lumber Co., 124 Wash. 363, 214, P. 819. Therefore, if the plaintiff is to prevail, it must be on the theory that an ordinary pike pole such as the one in the present case constitutes an attractive nuisance. This is the only issue presented by this appeal.

The general rule is that a private landowner owes no duty to a trespasser, except to refrain from causing willful or wanton injury to him. However, concern for the welfare and safety of children has led to the development of the attractive nuisance doctrine. It is said to be a special exception to the above-mentioned general rule. Referring to the attractive nuisance doctrine, this court said in Barnhart v. Chicago, M. & St. P. R. Co., 89 Wash. 304, 306, 154 P. 441, 442, L.R.A.1916D, 443:

'An exception to this general rule is made by what is known as the doctrine of the turntable cases. According to this doctrine damages may be recovered from the owner for the death or injury of a child of tender years even though technically a trespasser, and who has been attracted to the place of the accident by a dangerous agency which is in the nature of an attractive nuisance. * * *'

The elements which must be present for the attractive nuisance doctrine to be applicable to a given case are set out in Schock v. Ringling Bros., etc., 5 Wash.2d 599, 616, 105 P.2d 838, 846. The first element is characterized as follows:

'* * * (1) the instrumentality or condition must be dangerous in itself, that is, it must be an agency which is likely...