Edward M. DOWNS, Appellant and Cross-Appellee,
SULPHUR SPRINGS VALLEY ELECTRIC COOPERATIVE, Inc., a corporation, Appellee and Cross-Appellant.
[80 Ariz. 289] Conner & Jones, and James M. Murphy, Tucson, Gentry & Gentry and James F. McNulty, Jr., Bisbee, for appellee and cross-appellant.
Daniel E. Moore, Bisbee, for appellant and cross-appellee.
Wrongful death action wherein plaintiff Edward M. Downs brought suit against defendant Sulphur Springs Valley Electric Cooperative, Inc., a corporation, to recover damages for the death of plaintiff's eleven-year-old son, Edward Holt Downs. After trial before a jury resulting in verdict and judgment in the sum of $7,500, plaintiff appeals and defendant cross-appeals.
Defendant is a cooperative furnishing electrical power to its members and maintains a power plant yard at McNeal, Arizona. The premises was enclosed by a four-foot-high metal link fence with an open gateway and located thereon was a building containing a generating plant; a substation consisting of transformer which was enclosed within an eight-foot fence; and outside this enclosure an automatic
circuit breaker connected with the substation. The automatic circuit breaker which was not fenced consisted of a sixty-foot-high framework beneath which were three tanks of oil installed in a separate steel framework and suspended off the ground. Atop this latter framework and some distance above the oil tanks was an orangecolored glass cap used as a gauge to determine the amount of oil in the tanks. Electrical power was transmitted through the oil breaker to the transformer. The lowest point on the automatic circuit breaker at which electrical energy could be contacted was twelve feet from the ground. The breaker was capable of handling 69,000 volts but was receiving only 44,000 volts at the time of the accident which resulted in the child's death.
Plaintiff was an employee of defendant and with the exception of a two-year period had been so employed since 1942 and was employed in November, 1952, as a diesel operator. Plaintiff had two children of school age and occasionally, when plaintiff's wife was not at home, it was the practice for these children to come to the plant and wait for their father to go off duty.
On the afternoon of November 4, 1952, plaintiff was on duty at the generating plant and his wife was working on an election board. When school was out, the children came to the plant. Plaintiff was working inside the building. On two occasions he looked out and observed the children, together with children of persons who lived near the premises, playing in the area near the substation and automatic circuit breaker. [80 Ariz. 290] He could hear them playing in the yard. He did not warn them away from the equipment.
A little after 5:00 o'clock p. m. after plaintiff had checked the meters, the alarm sounded indicating a short circuit. Plaintiff ran outside to find his son lying on the ground unconscious, his clothes burning. The boy was immediately taken to the hospital in Douglas where he died the following day.
According to the children playing with decedent, they had been playing among wire spools and other equipment on the premises. Three of the children including decedent started to climb upon the automatic circuit breaker 'to find out what was in the glass jars up there'. There was a sudden flash, 'like a rainbow' and decedent fell to the ground. The flash burned the face of one of the other children who felt a shock and jumped to the ground.
Plaintiff testified that he had instructed his son about the dangers of electricity and on occasion had the boy working with him installing an electrified fence and working on electrically operated water pumps. The boy had been warned by his father not to go in or around the substation.
Defendant's cross-appeal is based upon the contention that the sole cause of the death of the child was the act of plaintiff in introducing or exposing the child to a dangerous instrumentality. The correct answer is dependent upon whether under the evidence the jury could legally find that the defendant was negligent and, if so, whether the jury was authorized to find that such negligence was a proximate cause of the death. Whether the defendant was negligent calls for an application of the law measuring the extent of liability of one who maintains on his premises an artificial condition or instrumentality inherently dangerous to small children who might be tempted to intermeddle or tamper therewith. Such a situation is said to create an attractive nuisance.
The decisions in various jurisdictions cannot be entirely harmonized. There is no occasion, however, for confusion or much disagreement if the problem is approached and tested by the ordinary rules of law applicable to negligence. Negligence is simply determined by whether under the conditions then and there existing one should realize there is or should be anticipated an unreasonable risk of harm to one in the position of the injured person. When determining whether liability should be imposed under the so-called attractive nuisance doctrine, we should inquire what is the extent of the probability of resulting injury and the practicability of protection to obviate the same. If one maintains on his premises an artificial, dangerous instrumentality under such conditions that he as a
reasonable person should anticipate the access of children who would not realize the dangers involved and should anticipate that there is an unreasonable risk that the instrumentality[80 Ariz. 291] would tempt or entice the child to trespass by tampering, playing or intermeddling therewith and that there is an unreasonable risk of harm resulting from such trespass, he is negligent, unless to provide protection against the harm would involve serious interference with the owner's use of his premises or would entail unduly burdensome costs. A good illustration of the circumstances under which an inherently dangerous condition may be legally ...