Smith v. McGoldrick Lumber Co. , 124 Wash. 363 ( 1923 )

Holcomb, J.

— In an action for damages in the sum of $20,150, for the drowning of their eleven-year-old son, a verdict for $1,000 having been awarded by the jury, was set aside by the trial court on motion of the respondent for judgment n. o. v.

The basis of the cause of action of appellants was that respondents maintained a dangerous, attractive and alluring nuisance, consisting of a mill pond within the city of Spokane, which was covered by a carpet of logs, to and upon which children of immature years were attracted to play, and which constituted a great danger; that the pond and the logs were not fenced, protected or guarded, nor children prevented in any way from playing thereon; that the deceased boy was enticed and attracted to the pond and logs, against the will and consent of appellants.

The mill pond in question, as alleged by appellants, is “an estuary or bay formed by the waters of the Spokane river.” Respondent has its mill on the Spokane river, and has leased a portion of the pond in question from the Pioneer Educational Society for about sixteen years. A part of the pond is excepted from the lease, and is used by the Pioneer Educational Society for a dumping ground. On the side of the pond farthest from the river, the Oregon-Washington Railroad & Navigation Company and the Spokane International Railway Company have their right of way, the embankment of which merges into the bank of the pond. In high water the water rises to within two or three feet of the Oregon-Washington track. The pond is twelve hundred feet long and about four hundred feet wide. It is naturally, and not artificially, formed. It cannot be fenced along the right of way of the railway company, and therefore could not be fenced clear around so that boys could be kept off in that manner. The railroad right of way on the farther side from the pond is fenced. The sawmill and lumber yards near the pond are fenced. There are signs at various places near the log pond reading, “Danger. Keep off these logs. This means you.” It is necessary to float and store logs upon the pond. It is a necessary and component adjunct to the sawmill.

Appellants assert that they have found no case paralleling the present one in atrocity of negligence, and cite Haynes v. Seattle, 69 Wash. 419, 125 Pac. 147; Bjork v. Tacoma, 76 Wash. 225, 135 Pac. 1005, 48 L. R. A. (N. S.) 331; Jorgenson v. Crane, 86 Wash. 273, 150 Pac. 419, L. R. A. 1915F 983; Akin v. Bradley Engineering & Machinery Co., 48 Wash. 97, 92 Pac. 903, 14 L. R. A. (N. S.) 586; Heva v. Seattle School District No. 1, 110 Wash. 668, 188 Pac. 776, 9 A. L. R. 267, and City of Pekin v. McMahon, 27 L. R. A. (Ill.) 206, all to the general effect that children of tender years, being without judgment and likely to be drawn by childish curiosity to places of danger, are not to be classed with trespassers, and that negligence by defendant, creating an attractive nuisance, creates liability although the negligence was not willful or wanton, and that contributory negligence cannot be ascribed, as a matter of law, to children of immature years.

We can see no peculiarly atrocious negligence in this case. Eespondent was using its property as it had a right to use it. It had enclosed all that part of the premises occupied by it which were practicable to be enclosed, and had put up signs warning everyone to keep off the logs. Eespondent relied chiefly upon Barnhart v. Chicago, Milwaukee & St. Paul R. Co., 89 Wash. 304, 154 Pac. 441, L. R. A. 1916D 443, which appellants claim is not in point, because there there was no carpet of logs maintained upon the surface of the water.

But in that case the pond was artificially created; it was not a necessary adjunct to the railroad; a raft had been built by some one and was used upon the pond, and was being used by the two sons of the plaintiff in that case, who were, one six, and the other eight years old, in play. It was claimed there that the railroad company was negligent in failing to drain the pond after it artificially created it. This court denied liability for negligence and dismissed the action in that case. That case was no stronger than this. A number of cases are cited in that case as direct authority upon which it was rested, and there is no need to lengthen this opinion by repeating them. See, also, Thompson v. Illinois Central R. Co., 105 Miss. 636, 63 South. 185, 47 L. R. A. (N. S.) 1101, and editorial notes thereto.

This ease falls within the rule of the Barnhart case, supra, and must be affirmed.

Main, C. J., Bridges, Mackintosh, and Mitchell, JJ., concur.