Meyer v. General Elec. Co., 33107

• Decision Date: 25 February 1955
• Docket Number: No. 33107,33107
• Citation: 280 P.2d 257,46 Wn.2d 251
• Court: Washington Supreme Court
• Parties: Harry B. MEYER and Norma Nola Meyer, Respondents, v. GENERAL ELECTRIC COMPANY, a corporation, and Harold Petty, an Individual, Appellants.

Page 251

46 Wn.2d 251

280 P.2d 257

Harry B. MEYER and Norma Nola Meyer, Respondents, v. GENERAL ELECTRIC COMPANY, a corporation, and Harold Petty an Individual, Appellants.

No. 33107.

Supreme Court of Washington, Department 2.

Feb. 25, 1955.

Rehearing Denied April 4, 1955.

John D. MacGillivray, Willard W. Jones, Spokane, for appellants.

Ralph Booth McAbee, Kennewick, for respondents.

MALLERY, Justice.

We must decide whether a commercially operated ditch fifteen feet in average width with domestic water running in it from two to three and one-half feet deep, is an attractive nuisance along the unfenced portion of its course through the city of Richland.

At about noon, on August 28, 1953, plaintiffs' two-year-and-eight-months-old son left his home. He was unattended and on a tricycle. He traveled over two thousand feet to Thayer drive, a hard-surfaced thoroughfare parallel to and about two hundred feet distant from the ditch in question, which was unfenced and easily accessible to him. Shortly thereafter, the boy's drowned body was taken from the ditch near the city limits. There were no houses near the scene and no eyewitnesses to the tragedy.

From a judgment for damages for wrongful death in favor of the plaintiffs, the defendant appeals.

Because of the nature of the contract between the defendant and the Federal government, the law applicable is the same as if the ditch was on the defendant's private property.

The deceased infant's age eliminates any question of contributory negligence, and we are not concerned with the ordinary duty of care of an owner of property toward a known trespasser. The defendant is not liable unless the doctrine of attractive nuisance applies.

The respondents, in support of the judgment, contend that the ditch was an attractive nuisance and should have been fenced at the scene of the drowning, as it was where it passes through the more populous areas of the city.

This state adheres to the attractive nuisance doctrine. However, our question is: Under what circumstances will a watercourse constitute an attractive nuisance?

It is the weight of authority that a natural watercourse is not an attractive nuisance, and that an artificial one is not if it has natural characteristics. As was said in Somerfield v. Land & Power Co., 93 Kan. 762, 145 P. 893, 894:

'The canal, as well be observed, has the characteristics of a natural stream, and can no more be regarded as an attractive nuisance than would a river flowing through the city or a pond or lake therein.'

See, also, McCabe v. American Woolen Co., C.C., 124 F. 283.

The doctrine is applied to watercourses only when there is some circumstance constituting a trap or hidden danger which the immature mind would not appreciate or could not resist, as in Bjork v. City of Tacoma, 76 Wash. 225, 135 P. 1005, 1008, 48 L.R.A.,N.S., 331, upon which respondents rely. In that case, the city used a wooden flume, with a cross section two feet square, to carry its domestic water supply. At one time an opening had been cut in the top of the flume from which water had...