Talkington v. Washington Water Power Co.

• Decision Date: 18 May 1917
• Docket Number: 13793.
• Court: Washington Supreme Court
• Parties: TALKINGTON v. WASHINGTON WATER POWER CO.

165 P. 87

96 Wash. 386

TALKINGTON v. WASHINGTON WATER POWER CO.

No. 13793.

Supreme Court of Washington

May 18, 1917

Department 2. Appeal from Superior Court, Lincoln County; Joseph Sessions, Judge.

Action by J. A. Talkington, guardian ad litem for Willard Talkington, a minor, against the Washington Water Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See also, 160 P. 754.

Post Russell, Carey & Higgins, of Spokane, for appellant.

Merritt Lantry & Merritt, of Spokane, for respondent.

PARKER J.

The plaintiff seeks recovery of damages for personal injuries for his ward, Willard Talkington, a minor ten years old, claimed as the result of the negligence of the defendant power company in maintaining the highly charged uninsulated wires of its electric power line at a place where children would be likely to come in contact therewith, and where Willard Talkington did come in contact therewith and received serious injury. Trial in the superior court for Lincoln county resulted in verdict and judgment in favor of the plaintiff, awarding damages against the defendant in the sum of $5,500, from which it has appealed to this court.

At the time in question appellant maintained in the town of Harrington an electric power line carrying about 2,300 volts. This line was supported on poles in the usual manner, except where it passed over the comb of the roof of a grain warehouse belonging to a milling company some 34 feet above the ground in a northeasterly and southwesterly direction, the comb of the roof running east and west. The line passed over the comb near the center of the building. It descended somewhat from the poles to a point 15 inches above the comb of the roof, where it was attached to a bracket as upon the poles, the warehouse and bracket thus serving the purpose of a pole. The warehouse with its lean-to was about 60 feet wide and some 200 feet long. The lean-to ran the entire length of the south side of the building, and was some 12 feet wide. The roof on the main portion of the building had a slope of 32 degrees, while the roof of the lean-to had a slope of only 16 degrees. The eaves of the lean-to at the southwest corner were only 8 feet above the ground, while at the southeast corner they were about the height of an ordinary box car above the ground. This was because of the contour of the ground along the south side of the building. A spur track of the Great Northern Railway ran along parallel to and near the east end of the building, so that when a box car was standing on this track opposite the end of the lean-to its top was nearly level with the lower part of the roof and only 32 inches therefrom. Because of this one could easily step from the roof of the car onto the roof of the lean-to. Boys of the town had been in some degree in the habit of playing on the roof of the lean-to and also on the roof of the main building on that side for some time previous to the time Willard Talkington received his injuries and previous to the time when appellant attached its line to the comb of the building. It is not very plain as to how frequently boys played upon the roof of the building, but in any event it occurred several times during the period two or three years previous to the accident here involved, according to the testimony of several witnesses. The boys would gain access to the roof by climbing onto freight cars standing at the end of the lean-to and easily stepping therefrom onto the roof, it being a common occurrence for box cars to stand there. The boys would also sometimes gain access to the roof by leaning a plank from the ground up onto the eaves of the lean-to at the southwest corner, where the eaves were only 8 feet from the ground. There is no direct evidence in the record showing that appellant or any of its agents had any actual knowledge of the fact that boys played upon the roof, though plainly appellant was charged with knowledge of the surrounding physical facts relative to the accessibility of the roof. There is some evidence that boys had been directed to keep away from the warehouse by the milling company's agents. Yet a number of the boys who played upon the roof seemed to have never been so ordered to keep away. While the warehouse was not the property of appellant, it apparently was maintaining its wires upon the roof by consent of the owner. One of the things the boys did in playing upon the roof was to take off their shoes while on the comparatively flat lean-to roof and climb up the steeper portion of the roof to the comb. This apparently could be done with comparative ease by a boy using both his hands and feet. Yet there would be somewhat of a spirit of competition between them as to who could walk up the steeper roof without using his hands. We are not advised as to how often this occurred, but apparently about as often as boys went upon the roof to play. At the time Willard Talkington was injured several boys, including himself, climbed upon the roof over a box car standing at the end of the lean-to. Some had climbed up the steeper part of the roof to the comb, including Willard Talkington. He reached the comb near appellant's power line wires, and evidently while standing he took hold of one or possibly two of the wires to steady himself, when he received a severe shock, grievously burning both his hands, falling unconscious, and rolling down the roof, where he was caught by another boy on the roof of the lean-to. There is some testimony indicating that Willard Talkington was warned to keep away from the wires, but there is room for argument that this warning was given him at the very instant he did so. He himself testified upon the trial that he thought they were telephone wires. What his belief was in this respect must be viewed, of course, in the light of his being only ten years old.

It is contended by counsel for appellant that in the light of these facts it should be absolved from negligence, and that Willard Talkington should be held guilty of contributory negligence and that the trial court erred in declining to so rule as a matter of law upon appellant's motions, which were timely made in that behalf. The question of appellant's negligence and Willard Talkington's contributory negligence are so intimately related that it is necessary to consider them together. It may be that appellant would be held free from negligence as a matter of law, viewed as affecting its liability to mature persons, and yet its negligence be such as would call for the leaving of that question to the jury for decision as affecting its...