HOLBROOK LIGHT AND POWER COMPANY, a Corporation, ARIZONA ELECTRIC POWER COMPANY, a Corporation, Appellants,
WILLIAM MADISON GORDON, a Minor, by WILLIAM E. GORDON, His Guardian Ad Litem, Appellee; ARIZONA ELECTRIC POWER COMPANY, a Corporation, Appellant,
WILLIAM E. GORDON and JEWEL GORDON, Husband and Wife, Appellees
APPEAL from judgments of the Superior Court of the County of Navajo. Levi S. Udall, Judge. Judgments affirmed.
Messrs. Wilson, Compton and Wilson, and Mr. Theodore G. McKesson, for Appellants.
Mr. Dodd L. Greer, for Appellees.
[61 Ariz. 257] ROSS, J.
William Madison Gordon, a minor, through his guardian ad litem recovered judgment in the Superior Court of Navajo County for damages for personal injuries sustained on January 15, 1940, at Holbrook, in said county, when he came in contact with a live wire on one of the transformers of the defendants, Arizona Electric Power Company and Holbrook Light and Power Company; and his parents in a separate action recovered judgment against the defendant Arizona Electric Power Company for expenses incurred by them by reason of said injuries. [61 Ariz. 258] At the time of injury William Madison Gordon was eight years and ten months of age; when the actions were tried he was over eleven years of age.
The power companies have appealed and by their assignments contend the evidence shows conclusively they are free from fault and are not liable for the injuries sustained by William Madison Gordon nor for the expenses incurred by reason of his injuries.
The actions were consolidated for trial and on appeal.
The generating plant of the Arizona Electric Power Company is located at Winslow, Navajo County, and hereafter we will refer to it as the Winslow Company. This company supplies the Holbrook Light and Power Company with electricity for use and distribution to customers at the town of Holbrook. By means of a transformer station at Holbrook, the electric current is reduced from a voltage of 23,000 to 2,300. The transformer station is approximately 26 by 27 feet and is enclosed by an industrial 2 inch mesh wire fence 7 feet high. The ends of the wire mesh were twisted together at the top to form sharp points extending 3 1/2 to 4 inches above the top railing to form the top of the fence. On each of the four sides of this enclosure were printed signs in these words: "Danger High Voltage." The Winslow Company owned about one-half acre of ground and this station is located thereon. On the east side of the station enclosure is a gate, of the same material and finish as the fence and forming a part thereof, and such gate was kept closed and padlocked. Inside this enclosure were three transformers set on concrete piers about 8 inches thick, 30 inches high and so erected on the piers as to occupy a space of about 9 feet. From
the ground to the nearest high voltage connection it was approximately 10 feet, 8 inches.
[61 Ariz. 259] The companies had a ladder which was kept in the enclosure for the use of their employees in reaching a platform located above and a little to the side of the transformers. This platform was 10 feet above the ground and about 11 feet long, and an employee standing on it could make adjustments of the transformers and the wires connected therewith.
Arthur J. Sullivan, a civil engineer in the employ of the Santa Fe Railroad Company, testified that at the time of the accident he was visiting with others at a place just north of the transformer station and that he and R. W. Johnson "ran over to the fence" where he saw "a small boy lying inside the enclosure"; that he assisted Johnson over the fence, who picked up Billy Gordon and handed him to a man who had got on top of the fence, who, in turn, handed the boy to him, Sullivan.
The transformer station was on or near the west side line of defendant's (Winslow Company's) one-half acre lot, the rest of which was open ground onto which children might and occasionally did enter without hindrance. There is some testimony to the effect that the unfenced portion was sometimes used by children as a playground and that children passed back and forth by and over it. But the fact is that on this occasion the Gordon boy and his companion Jared Heywood went directly to and entered the enclosure. The Gordon boy had been in the enclosure before, so he informed his companion Jared Heywood.
He was in the third grade of public school, could read, was of average intelligence, and had seen the warning signs "Danger High Voltage" posted on enclosure, but claimed he did not see them on the day of the accident. He testified at the trial that he and Jared Heywood, who was then about 10 years of age, on January 15, 1940, after school hours, were hunting [61 Ariz. 260] caves in the vicinity of the transformer station. (We understand the so-called caves were excavations that had theretofore been made by "some big boys.") Not finding any caves, they took the road that lead to the transformer station and when they got there, the Gordon boy testified, "We seen all those shiny things, hearing the buzzing sound and seen the ladder." He said the ladder "was leaning up against the fence"; that he "Stuck the toes of my boots in the fence and went down the ladder and pushed the ladder over on the scaffolding and went up the ladder to the scaffolding --... there was a piece of wood there and I stepped on it and I guess I stepped on the transformer -- that is the last I remember." He also testified that both he and Jared Heywood went down the ladder to get inside the enclosure.
Appellee has two versions of the position of the ladder at the time and just before the accident. In his deposition taken January 15, 1942, and before the trial, he was ...