Salt River Valley Water Users' Association v. Compton

• Decision Date: 16 February 1932
• Docket Number: Civil 3105
• Citation: 8 P.2d 249,39 Ariz. 491
• Parties: SALT RIVER VALLEY WATER USERS' ASSOCIATION, a Corporation, Appellant, v. JAMES COMPTON, By and Through JAMES W. COMPTON, His Guardian Ad Litem, Appellee
• Court: Arizona Supreme Court

8 P.2d 249

39 Ariz. 491

SALT RIVER VALLEY WATER USERS' ASSOCIATION, a Corporation, Appellant, v. JAMES COMPTON, By and Through JAMES W. COMPTON, His Guardian Ad Litem, Appellee

Civil No. 3105

Supreme Court of Arizona

February 16, 1932

APPEAL from a judgment of the Superior Court of the County of Maricopa. A. S. Gibbons, Judge. Judgment reversed and remanded, with instructions.

Messrs Kibbey, Bennett, Gust, Smith & Rosenfeld, for Appellant.

Messrs McNabb & DeCamp, for Appellee.

OPINION

LOCKWOOD, J.

James Compton, a minor, hereinafter called plaintiff, brought suit by and through James W. Compton, his guardian ad litem, against Salt River Valley Water Users' Association, a corporation, hereinafter called defendant, to recover damages alleged to have been incurred by plaintiff through receiving an electric shock from certain high-power transmission lines belonging to defendant. A general demurrer to the original complaint was argued and overruled, but shortly before the date set for trial an amended complaint was filed which, after the court had ruled on various motions, was reduced to substantially the same allegations as the original complaint. After the usual formal matters in regard to the character of plaintiff and defendant, the complaint continues as follows:

"That the defendant, in the distribution of electric power, maintains high voltage wires over the Salt River Valley to convey its electric power sold and furnished to subscribers and members; that on or about the 23rd day of May, 1930, and at all times mentioned in this complaint, the defendant maintained poles hereinafter described for the purpose of fastening high voltage and dangerous electric wires, said poles being constructed alongside and in the public highways of Maricopa County, Arizona, one of which was located at the northeast corner of the intersection of the Grand Canal and Lateral 15, said poles being made of iron or other metal, and consisting of two pieces running from the ground up some thirty feet high, being somewhat wider at the bottom than at the top, the said two metal pieces being connected with criss-cross iron running from the bottom to the top of said poles, constructed in a manner that they are very much like ladders so that said poles are easily climbed by children, and are loaded with high voltage of electricity and having latent danger unobserved by children of tender years. That said poles were without guards or warning signs. That at the top of the poles there are cross beams for the purpose of placing copper wires which carry electricity; that the said cross beams, in the manner in which they are fastened to the top of the poles make good places for birds to nest and to lay eggs and raise young, and that on said date, and prior thereto, birds were constantly building in the tops of the poles, which the defendant well knew or, by the exercise of ordinary care, could have known. That the said poles being erected on the public highway at a place where the plaintiff and other children were in the habit of playing were especially attractive to children of tender age to climb to explore for bird nests in accord with the sportive instincts or uncontrolled and undisciplined impulses of children. That the defendant knew or, by the exercise of ordinary care, could have known that birds would have built their nests in the top of said poles and that the poles being so constructed ladder-like were accessible and easily climbed. That the defendant could have anticipated, and it was the duty of the defendant to have anticipated, the propensity of children of tender years to climb said ladder poles for bird nests; that the defendant did know or, by the exercise of ordinary care, could have known that birds would and did build nests on cross beams and that children of tender years would climb such poles placed on said highways to explore the contents of such bird nests. That notwithstanding such knowledge, the defendant so placed poles, constructed as aforesaid, easily accessible, and easily climbed, and in addition thereto, where birds would nest in the tops, making the climbing of the poles especially attractive to the young and undisciplined mind, and notwithstanding such knowledge, the defendant placed on said poles, on the cross beams thereof, wires uninsulated and at times being loaded with heavily charged voltage of electricity, rendering the said wires positively dangerous to anyone who might come in contact with them, so that the poles, constructed in the manner aforesaid and loaded with dangerous electricity, were highly dangerous to children playing along said highway, as they are in the habit of doing, and which this plaintiff was in the habit of doing, which danger to children, by the exercise of ordinary care, could have become known to the defendant and was known to the defendant. That the defendant unlawfully and wilfully and negligently, constructed poles in the manner aforesaid and maintained them on the public highways of Maricopa County, Arizona, one being at the place aforementioned.

"That on or about the 23rd day of May, 1930, the plaintiff being a child of thirteen years and somewhat backward in growth and mentality, but with the usual propensity of children to climb and to seek bird nests which were built by birds on the top of the poles which had been negligently, unlawfully and wilfully constructed and erected by the defendant, which were especially attractive and accessible to children of tender years, and the plaintiff being so young as to not know the danger of high voltage wires that were at the top of said poles, did, in the exercise of his childish instincts and propensity, climb the pole erected on said highway at the northeast corner of the intersection of the Grand Canal and Lateral 15 for the purpose of exploring a nest that was built at or near the top of said pole, and while climbing said pole came in contact with the high voltage wires, and after being held and burned for some time, was knocked from the pole to the ground, falling from 25 to 30 feet. . . ."

The issues were tried to a jury, which returned a verdict in favor of plaintiff for the sum of $25,000, and after the usual motion for new trial was overruled, the case was brought before us in this appeal.

Plaintiff contends most strenuously in his brief "that we are basing this suit on common law negligence," while defendant insists with equal earnestness that the complaint can be sustained only on the theory that it sets up an action for maintaining what is called an "attractive nuisance." The two matters are so interwoven in argument that we think it best to discuss both theories of the case.

The law in regard to the proper handling of electric currents is of comparatively recent development, and is still to a great extent in its formative period. The decisions on the subject are in apparent hopeless contradiction, and cases can be found supporting almost any view as to the extent of the responsibility of those engaged in dealing with such currents. We think the best rule in regard to the care necessary in handling high-power transmission lines may be stated as follows:

"Those engaged in transmitting such a dangerous force as electricity, which gives no warning of its presence and is not apparent to the senses, are required to exercise a degree of care in constructing and maintaining the wires over which it is transmitted commensurate with the danger to be apprehended from contact with such wires or the escape of electricity therefrom; but they are not insurers against accidents or injuries." See Bunten v. Eastern Minnesota Power Co., 178 Minn. 604, 228 N.W. 332.

It is in the application of this rule to the facts of the particular case that the difficulty lies.

Actionable negligence may be of two kinds, either statutory or common law. Where a valid statute, enacted for the public safety, or governmental regulations made in pursuance thereof, provide that a certain thing must or must not be done, if a failure to comply with the regulations is the proximate cause of injury to another, such failure is actionable negligence per se. Schell v. Dubois, 94 Ohio St. 93, L.R.A. 1917A 710, 113 N.E. 664; Osborne v. McMasters, 40 Minn. 103, 12 Am. St. Rep. 698, 41 N.W. 543. So far as we know there is no statutory regulation forbidding defendant to maintain as a part of its high power electrical transmission system steel or iron poles or towers of the kind described in plaintiff's complaint as the one upon which he was when he came in contact with the wires carrying the electric current. It is true the Arizona corporation commission has adopted through its amended General Order No. 37 the National Electric Safety Code, published by the Federal Bureau of Standards, and that the pole in question does not comply with the standards set up therein. It was agreed, however, by plaintiff and defendant at the trial in the lower court that defendant is not one of the classes of corporations covered by said amended General Order No. 37, and that the order does not apply to it. There is, therefore, nothing in the record showing that the defendant is guilty of statutory negligence.

The second question is as to common-law negligence. This may be defined as follows:

"Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission." See Baltimore & P.R.R. Co. v. Jones, 95 U.S. 439, 24 L.Ed. 506, and Morenci Southern Ry. Co. v. Monsour, 21 Ariz. 148, 185 P. 938.

Tested by this definition, is there any common-law negligence alleged in plaintiff...