Mail v. M. R. Smith Lumber & Shingle Co., No. 33278

• Court: United States State Supreme Court of Washington
• Writing for the Court: FINLEY; HAMLEY
• Citation: 287 P.2d 877,47 Wn.2d 447
• 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.
• Docket Number: No. 33278
• Decision Date: 15 September 1955

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.

Page 448

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 [287 P.2d 878] 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.

Page 449

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...