Sweeten v. Pacific Power & Light Co. , 88 Wash. 679 ( 1915 )

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, Washington, 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 £,300 volts being suspended upon poles approximately twenty-seven feet above ground. In the alley was a cotton wood 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 unenclosed 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 thirty days before the accident, reported it to the defendant’s manager, urging that the condition be remedied as it was very dangerous for the children. A promise was given but nothing was done.

Between four and five 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 five-twenty and five-thirty, 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 bum 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 wii’e 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 was no evidence that appellant was negligent.

First: The cause of an accident, like any other fact, may be proven by circumstantial evidence. Here a sufficient cause of the accident was shown, coupled with circumstances strongly indicating that it was the real cause. The accident was sufficiently accounted for as resulting from contact with the uninsulated wire. It was not incumbent upon respondent to negative every other possible cause. Proof of the exposed condition of the wire, its contact with the tree, the custom of the children to climb the tree at this period of the year, and the finding of the boy at the foot of the tree bearing upon his body fresh electrical bums, made a prima facie case which could only be overcome by proof that the death of the child resulted from some other cause. The respondent was not required to prove the cause of the accident beyond a reasonable doubt, but only by a preponderance of the evidence. It is true, as we have often held, a verdict may not rest upon pure speculation, but the correlative is also true that a verdict resting upon competent evidence may not be set aside upon pure speculation. Dumas v. Walville Lumber Co., 64 Wash. 381, 116 Pac. 1091; Sroufe v. Moran Bros. Co., 28 Wash. 381, 68 Pac. 896, 92 Am. St. 847, 58 L. R. A. 313; Abrams v. Seattle & Montana R. Co., 27 Wash. 507, 68 Pac. 78.

Second: ' The claim that there was a fatal lack of proof, in that there was no evidence as to the probable value of the services of the child had he lived to his majority, is without merit. In such a case it is within the province of the jury, knowing the age, health and capacity of the child and the situation of the parent, to form an estimate of the pecuniary loss to the parent, present or prospective, resulting from the death of the child, and thereon award substantial damages. Atrops v. Costello, 8 Wash. 149, 35 Pac. 620; Atkeson v. Jackson Estate, 72 Wash. 233, 130 Pac. 102. In the nature of the case, direct evidence of specific pecuniary loss would be impracticable, not to say impossible. To hold that, without such direct evidence, no recovery beyond nominal damages could be had, would render nugatory the statute permitting a recovery for wrongful death, Rem. & Bal. Code, § 184 (P. C. 81 § 17), as applied to the loss of a child of tender years. Ihl v. Forty-Second St. etc. R. Co., 47 N. Y. 317, 7 Am. Rep. 450.

Third: The appellant’s negligence was established beyond a reasonable doubt. It permitted a highly charged wire, passing through a tree in a public alley where it knew children were wont to play, to become uninsulated and so remain for weeks and, as the evidence shows, possibly for years. It was not only charged with knowledge of the fact that the insulation was worn, since the undisputed evidence shows that any sort of inspection would develop that fact, but it also had actual notice of that fact and had been warned of the incident danger. It took no steps to remedy the situation. It is idle to argue that it was the duty of the city to remove the tree, that the sole negligence was that of the city in allowing the tree to grow up around the wire, and that the appellant was not negligent because it was prohibited by statute, Rem. & Bal. Code, § 2659, subd. 2 (P. C. 135 § 811), and by an ordinance of the city from cutting. girdling or otherwise injuring shade trees. The argument overlooks the plain fact that the burn on the tree was in itself a violation of both statute and ordinance. Moreover, neither statute nor ordinance would have prevented the appellant from securing from the city permission to trim or even cut down the tree if necessary. Above all, this argument strangely overlooks the fact that it was the duty of the appellant to see that its wires were kept insulated in any event. The ordinance under which alone it had the right to erect and maintain the power line in this public alley provides :'

“The said wires shall be insulated and carefully connected and fastened so as not to come in contact with any object through which a ‘ground’ could be formed.” Ordinance No. 424.

Considering the dangerous character of the agency involved, the appellant, in view of all the circumstances shown in evidence, was guilty of gross negligence. Temple v. McComb City Elec. Light & Power Co., 89 Miss. 1, 42 South. 874, 119 Am. St. 698.

The judgment is affirmed.

Morris, C. J., Mount, Chadwick, and Fullerton, JJ., concur.