Order and judgment affirmed.
Robert & Price, Phoenix, for appellant.
Jennings, Strouss, Salmon & Trask, J. A. Riggins, Jr. and Rex H. Moore, Phoenix, for appellee.
Phelps, Justice. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concur.
[73 Ariz. 123] This is an appeal from an order granting appellee's motion for judgment notwithstanding the verdict and from the judgment entered thereon.
The facts are that Robert Jennings Lee, the minor son of appellant Alvira Lee, was injured by coming in contact with a highvoltage electric wire alleged to have been owned and maintained by appellee.
Two causes of action were instituted against the Salt River Valley Water Users: one on behalf of the mother, Alvira Lee, [73 Ariz. 124] for medical and hospital expenses incurred by her on behalf of her minor son, and the other by Robert Jennings Lee by his guardian ad litem, Alvira Lee, for injuries sustained by him. Thereafter these causes of action were consolidated for trial and such other proceedings as might arise thereon.
The complaint alleges in substance that appellee at all times mentioned therein, maintained a pole line in the vicinity of 16th Street and East Indian School Road carrying 26,000 volts of electricity; that this line was connected with a pump house approximately 10 feet above the ground; that children were accustomed to congregate and play around the pump house and use the large water trough (wier) as a swimming pool; that the pole line was maintained in a careless, negligent and reckless manner and with no provisions to safeguard and prevent children from climbing upon the pump house owned by defendant, or to advise them of the danger thereof, all of which was known to appellee.
It further alleges than on the 2nd day of July, 1949, the minor son whom we shall hereafter refer to as Robert, age 11, while playing with other children in the vicinity of the pump house not knowing the danger thereof and not knowing that the pole line was a high-power line or dangerous, climbed from the ground to the top of the pump house, seized the wire on the said pole maintained by the Water Users, receiving a severe electric shock to such an extent that he was knocked from the pump house to the ground, thereby suffering great injuries, described in particular in the complaint; that large expenses were incurred in medical and hospital care, and prayed for judgment on behalf of the mother for the expenses incurred and for judgment on behalf of Robert for the injuries he sustained.
Appellee interposed the defense, first, that the complaint failed to state a cause upon which relief could be granted; secondly, it admitted it maintained the pole line but denied that it carried 26,000 volts of electricity. It denied ownership of the pump house and denied that it was guilty of negligence in any manner; third, alleged that any damage suffered by plaintiffs was due to the sole negligence of Robert; and fourth, if damages were suffered by plaintiffs, it was due to the contributory negligence of both the mother and Robert.
These issues were submitted to a jury and a verdict was returned in favor of the mother for the sum of $ 410 and in favor of Robert for $ 5,000. Upon motion of plaintiffs, judgment was entered thereon. The trial court thereafter granted appellee's motion for judgment notwithstanding the verdict, vacated the former judgment in favor of appellants, and entered judgment in favor of appellee.
Appellants have assigned as error that the trial court erred in arriving at the following conclusions:
[73 Ariz. 125] (a) That there was no evidence in the record upon which the jury could find the appellee owned, operated or maintained the ...