108 P. 151 | Cal. Ct. App. | 1910
There is no serious controversy as to the facts herein, which may be stated as follows: The appellants own all the wires, poles and electrical appliances used for distributing electricity in the town of Lodi, San Joaquin county, Cary Brothers being the managers of the plant. The electricity which they distribute is purchased by them from the American River Electric Company. This company has no control nor supervision over the wires or electrical appliances belonging to appellants. Appellants strung the wire in controversy a year before the electrocution of plaintiff's minor child, caused by coming in contact with said wire. This wire was given two wraps around a pole, carried across a sidewalk over an office building, and attached to an iron pipe of a water-tank. It was an ordinary galvanized wire, uninsulated, and having the appearance, as some of the witnesses stated, of being used as a guy wire and not as one charged with electricity. Said wire was used as a "third leg" or ground wire of the system and it thus saved the expense of another wire. From the date of its erection until the death of said child no attention seems to have been paid to this wire. At a time when the current was shut off an employee of Henderson Brothers, thinking that said wire was a guy wire, cut it in order to change the iron stand-pipe to which it was attached. The wire was cut between 1 and 2 o'clock of Friday, August 2d, and remained in that condition until Sunday evening between 6 and 7 o'clock of August 4th. At this time the deceased, who was nearly eleven years old, was walking north on Sacramento street with his mother, he being on the sidewalk and she being in the street. When he saw the wire he called to his mother, saying, "This is the electric wire"; he then grasped hold of it and this resulted in his immediate death.
Appellants were not notified that the wire was to be cut or any change was to be made in it, nor did they have any knowledge that it had been cut until after the death of the said child, Millard M. Tackett. The wire did not fall by *661 reason of any structural infirmity or defective fastening. The entire length of the wires owned by appellants in the town of Lodi was about fifteen miles, which could be inspected in one day, and the scene of the catastrophe was only a short distance from the office of the company. It appears also that other persons saw the wire and attempted to take hold of it, believing from its appearance that it was not charged, the testimony showing that even electrical experts, seeing a wire wrapped as this, would conclude that it was simply a guy wire.
Many questions of law are discussed by appellants, and various reasons are assigned for a reversal of the judgment, but the vital propositions involved are: 1. Were appellants chargeable with negligence? and 2. Was the deceased guilty of contributory negligence in taking hold of the said detached wire?
As to the first, upon special issues submitted, the jury found that the "defendants Cary Brothers, by the exercise of reasonable care and inspection, could have discovered the condition of the fallen wire between about 1 o'clock Friday afternoon and about 6:30 o'clock the following Sunday afternoon," and also that "The wire which was placed in position by the defendants Cary Brothers, at the time it was placed in position, and up to the time when it was cut loose from the iron pipe on the tank was dangerous to any person passing underneath."
In reference to this latter finding it may be observed that the menace from the wire in position lay in the fact, as has already been indicated, that its appearance and adjustment were such as to lead to the belief that it was not charged with electricity. This finding, however, need not be considered at length, since the general verdict as to negligence follows from the answer to the aforesaid special issue as to the ability of appellants to ascertain the condition of the wire after it was cut and before the accident.
We think it was unquestionably the duty of appellants to make frequent inspection of the system, and upon reason and authority it must be held that their ignorance of the condition of said wire amounts to actionable negligence with the burden imposed of responding in damages for any injury occasioned thereby. That they omitted a plain and imperious duty in *662 the premises appears from the testimony of the manager that "So far as I knew, the wire as I strung it across there remained in the same condition it was put up until the day somebody cut one end. I paid no further particular attention to that wire that I know of after it had been put up. I told Mr. Bauer under certain conditions that wire was dangerous. . . . I cannot tell how long it had been prior to the occurrence that I had given the wire any attention." It is apparent, of course, that no attention was paid to it during the interval to which we have referred, as otherwise it would not have been allowed to remain hanging loose. The contention of appellants in this connection is that they are relieved of responsibility because they had no actual knowledge of the condition of the wire. But in view of the character of the agency with which they were dealing and the solicitude of the law for human life, the failure to exercise diligent and proper care to obtain information is equivalent to actual knowledge of the situation, as far as their civil liability is concerned.
The ground for the strict exaction of the law in reference to the obligation of appellants is well set forth in the opinion of the court in Mitchell v. Raleigh Electric Co.,
The supreme court of Montana stated the rule in slightly different phraseology as follows: "The owner or operator of an electric plant is bound to exercise a reasonable degree of care in erecting pole lines, selecting appliances, insulating the wires wherever people have a right to go and are liable to come in contact with them, and in maintaining a system of inspection by which any change which has occurred in the physical conditions surrounding the plant, poles, or lines of *664
wire, which would tend to create or increase the danger to persons lawfully in pursuit of their business or pleasure, may be reasonably discovered. It would hardly do to say that the defendant can only be required to exercise due diligence after it receives notice of any defect in its appliances or of any change in the physical conditions surrounding them, for this would be placing a premium upon negligent ignorance." (Bourke v. Butte Electric Power Co.,
In Mitchell v. Charleston L. P. Co.,
In Pennsylvania the rule as to gas companies is stated as follows: "While no absolute standard of duty in dealing with such agencies can be prescribed, it is safe to say, in general terms, that every reasonable precaution suggested by experience and the known dangers of the subject ought to be taken. This would require, in the case of a gas company, not only that its pipes and fittings should be of such material and workmanship, and laid in the ground with such skill and care, as to provide against the escape of gas therefrom when new, but that such system of inspection should be maintained as would insure reasonable promptness in the detection of leaks that might occur from deterioration of the material of the pipes, or from any other cause within the circumspection of men of ordinary skill in business."
Similarly, in District of Columbia v. Woodbury,
The same principle is affirmed in the courts of this state. In Giraudi v. Electric Imp. Co.,
In Davoust v. City of Alameda,
Many other cases are cited by respondent in line with the foregoing which emphasize the great care required of such companies for the protection of life and property, and our attention has been called to none holding that careless ignorance exonerates from liability. Of course, when the injury to the wire is done by another without the knowledge of the owner, the latter would be entitled to a reasonable time to repair the damage, but here we are satisfied that the failure of appellants for such an interval to ascertain the condition of the wire cannot be justified nor excused.
If the deceased had accidentally touched the wire, there could be no difference of opinion among reasonable persons as to the liability of appellants. The problem, however, is somewhat complicated by the fact that the act was voluntary on his part, and hence the claim is made of contributory negligence. This is rendered more plausible by the consideration that he was an unusually bright boy, but after all, the question is, Was his conduct under the circumstances indicative of the want of that care which is to be expected and which the law demands of a boy of his age, seeing what he saw and knowing what he knew?
In the solution of the question we cannot lay out of view the fact that he was a mere child, that he did not know of the dangerous character of the wire, and that there was nothing in its appearance to indicate that it was a live wire. *666
That a person of this boy's age is not held to the same degree of caution as is required of an adult will not be challenged by anyone, and it is abundantly supported by the cases. That he did not know the wire was dangerous is shown by his conduct in grasping it, res ipsa loquitur. It is not at all probable that the boy would have seized the wire if he had any knowledge or intimation of the hazard involved. His actions show that he was deceived by the appearance of the wire, and since appellants were responsible for that condition likely to mislead even experienced electricians, they cannot escape liability upon the ground that the deceased should not have been deceived. The question is at least open to frank and reasonable discussion and, as we view it, the conclusion that the lad was not chargeable with contributory negligence is not unreasonable. We therefore feel bound by the finding of the jury adverse to the contention of appellants.
As to this point we refer also to some of the decisions expressing views in line with the foregoing.
In Haynes v. Raleigh Gas Co.,
In Temple v. McComb City Electric Light Power Co.,
In the Giraudi case, supra, the rule is clearly stated by our supreme court as follows: "The mere fact that a dangerous agency is used raises no presumption that the public know enough of its nature to avoid the danger which may arise from its use; and the public — aside from the consumers using the commodity — owe no duty to those introducing it; but it is the duty of those making a profit from the use of a dangerous element, such as electricity, to use the utmost care to prevent injury to any class of people, and they must protect those possessing less than ordinary knowledge of the character of the commodity. . . . Where a person injured from contact with electric wires was ignorant of the danger that might result from the contact, a less degree of care is demanded of him than would have been required if he had been informed of the danger; and what constitutes reasonable care must be judged by the circumstances of the case of which the jury are the judges." (See, also, Griffin v. United Electric Light Co.,
Without multiplying authorities, we conclude that it would be harsh and brutal to hold that beyond reasonable controversy the deceased was guilty of contributory negligence, and that it was against the mandate of the law to submit the determination of this question to the judgment of the jury. To hold with appellants would be to indorse the doctrine that a snare may be laid for the unwary and that the guilty may take refuge behind the childish credulity of the innocent.
The cases cited by appellants in opposition to these views do not reach the point. We notice specifically only two California decisions: Studer v. Southern Pacific Co.,
The danger there was obvious to any child of that age of ordinary intelligence, and it was held that the risk was so great and so manifest that the deceased had no right to assume it.
In the George case the question of contributory negligence was submitted to the jury, who found for the defendant, and the supreme court held it was proper to leave this question to the jury "free from any presumption as to plaintiff's incapacity."
In those cases the danger was open to the observation, and could be comprehended by children over ten years old of average intelligence. Here the danger was hidden and concealed, and by reason of the negligence of appellants would not be suspected even by adults, and therefore an altogether different situation is presented.
The court's instructions, as we view them, stated the law correctly. There seems to be no valid objection to instruction No. 3, charging that "The owners of property are liable for any acts of negligence upon the part of persons who may be managing such property for them, and if you believe from a preponderance of the evidence that the Cary Brothers were guilty of the negligence charged in the complaint, and that their negligence was the proximate cause of the death of Millard Tackett, and that at the time of the death of said Tackett the Cary Brothers were acting as managers of the electric system at Lodi for the defendants Blanch D. Cary and Maria Cary Sanborn, then your verdict should be not only against the Cary Brothers, but also against the said Blanch D. Cary and Maria Cary Sanborn." The instruction is hypothetical, does not assume any fact as proven, embodies a correct principle of law and is based upon the evidence. The only criticism that could be directed against it is that it does not specifically require that the acts of the managers, in order to bind the principal, must be within the scope of their employment, but that element is necessarily implied, and the jury were explicitly so directed in another instruction.
An instruction was also given that "the terms 'due care' and 'ordinary diligence' as used in the law of negligence are relative terms, and mean a degree of care commensurate *669 with the danger involved. . . . Wires charged with an electric current may be harmless, or they may be in the highest degree dangerous. The difference in this respect may not be apparent to ordinary observation, and the public, therefore, while presumed to know that danger may be present, are not bound to know its degree in any particular case. The company or persons, however, using such a dangerous agent are bound to know the extent of the danger, and to use the highest degree of care practicable to avoid injury to anyone who may be lawfully in proximity to its wires and liable to come accidentally in contact therewith. . . . Where one places or maintains a wire charged with a highly dangerous current or a wire likely to become charged with a highly dangerous current over a public street, the law requires that he must use the highest or utmost degree of care in the construction, maintenance and operation of said wire, and he must use the best materials and most approved methods of construction to prevent injury to anyone who may lawfully or accidentally come in contact therewith, and also use due care and circumspection over such wire to prevent it from sagging down within reach of pedestrians lawfully using a public street or sidewalk space adjacent thereto. Any failure to observe these requirements renders the person so failing liable for all damages that may thereby be caused to others who, without fault of their own, come in contact with such wire or wires." The objection to this instruction made by appellants is that "the jury were instructed that while the public may be presumed to know the danger, they are not bound to know its degree, and furthermore, that these appellants were compelled to exercise due care and circumspection to prevent the wire from sagging down, which was not a fact in the case because the wire did not sag down, and therefore these appellants had performed their duty. It sagged down by reason of having been cut without notice to these appellants, and it was an instruction not based upon the evidence, and, like the last instruction, permitted the jury to romance, guess and surmise."
The proposition, however, as to the degree of knowledge has been affirmed in many decisions, among them the case ofFitzgerald v. Edison Electric Illuminating Co.,
Many objections were made to the admissibility of evidence. We do not feel called upon to review them in detail. We think no prejudicial error was committed. Some of the questions were proper on behalf of the defendants other than appellants, and if the answers thereto should not have been considered as against the latter, it is sufficient to say that there was no request to so limit them, and there were other questions where an objection was overruled that were not answered at all.
We find no material conflict in the special findings of the jury, nor do we think they are opposed to the general verdict. The case seems to have been fairly tried, the verdict is a very moderate one, and we think the judgment and the order denying the motion for a new trial should be affirmed, and it is so ordered.
Chipman, P. J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 15, 1910. *671