Sweeten v. Pacific Power & Light Co.

• Decision Date: 23 December 1915
• Court: Washington Supreme Court
• Parties: SWEETEN v. PACIFIC POWER & LIGHT CO.

153 P. 1054

88 Wash. 679

SWEETEN v. PACIFIC POWER & LIGHT CO.

Supreme Court of Washington

December 23, 1915

Department 1. Appeal from Superior Court, Yakima County; E. B. Preble Judge.

Action by Allan S. Sweeten against the Pacific Power & Light Company. From judgment for plaintiff, defendant appeals. Affirmed.

Englehart & Rigg, of North Yakima, and John A Laing, of Portland, Or., for appellant.

Snively & Bounds, of North Yakima, for respondent.

ELLIS J.

Action by the father to recover damages for the wrongful death of a minor child. There is no real conflict in the evidence. On and prior to May 15, 1914, the defendant was operating an electric lighting and power line in the city of North Yakima Wash., under a franchise granted by the city to its predecessor in interest authorizing the maintenance of poles and wires in the streets and alleys of the city. The defendant's power line ran through a public alley in the northern part of the city, a wire carrying about 2,300 volts being suspended upon poles approximately 27 feet above ground. In the alley was a cottonwood tree which, it seems to be conceded, did not reach the wires at the time the defendant's system was first installed, but during the intervening years had grown up so that the top of the body of the tree extended some distance above the wires. The alley was uninclosed, and was a usual playground for the children of the neighborhood, many of whom were accustomed in the springtime to climb the tree for cotton balls which at that season it bore. The tree had slats nailed to it, and the children could easily climb up and down. The initials of many children were carved upon the body of the tree near where the power wire passed. The insulation of the wire where it extended through the tree was worn off in at least two places where the wire came in contact with the tree when swayed by the wind. Where this contact occurred the tree was burned and charred to a depth of three or four inches and for several inches in length. This, as the city electrical inspector testified, would indicate that the wire must have come in contact with the tree for weeks, months, or possibly years. There was some evidence that in the nighttime when the wire came in contact with the tree there were flashes of electric light which had been noticed for a long time prior to the accident. One witness who lived near the tree noticing this, some 30 days before the accident, reported it to the defendant's manager, urging that the condition be remedied as it was very danagerous for the children. A promise was given, but nothing was done. Between 4 and 5 o'clock on the afternoon of May 15, 1914, George Alexander Sweeten, a boy of eight years, bright, healthy, and of much promise, the son of the plaintiff, left home to bring a horse feeding on the commons near the tree in question. Between 5:20 and 5:30 a man who lived a short distance from the tree heard a horse snort as if frightened, and on going to the alley found the dead body of the boy under the tree in question. The horse was tied near by in the alley. He carried the boy into his residence, and two doctors were called. An examination showed that the boy's neck was broken. There was an electrical burn upon the middle finger of the left hand and another and larger electrical burn upon the left leg between the ankle and the knee. The stocking on this leg was burned, and around the burn in the stocking was burned and seared flesh. It had rained on that day and the wind was blowing. The boy's stockings were damp. These conditions, as the evidence shows, were such as likely to cause the electric current to pass through the boy if he came in contact with the uninsulated wire with his hand, his leg being in contact with the tree. Both of the physicians testified that the burns were electrical burns. There was no evidence whatever that such burns were or could have been received except by coming in contact with the wire in question. At the close of the evidence the defendant moved for a directed verdict, which was refused. The jury returned a verdict in favor of the plaintiff for $2,593. The defendant moved for a new trial, but afterwards withdrew the motion. From the judgment on the verdict the defendant appeals.

The appellant contends that the evidence was insufficient to sustain the verdict in that: First, there was no evidence to prove the actual cause of the accident resulting in the child's death; second, there was no evidence of the value of the services of the child; third, there...