Opinion
Page __
__ Cal.App.2d __262 P.2d 66DUNNv.PACIFIC GAS & ELECTRIC CO.No. 15489.California Court of Appeals, First District, First DivisionOct. 23, 1953Hearing Granted Dec. 17, 1953.
[262 P.2d 67] Wm. B. Mead, Oakland (Cyril Viadro, San Francisco, of counsel), for appellant.
Robert H. Gerdes, San Francisco, Carlson, Collins, Gordon & Bold, John Ormasa, Richmond, for respondent.
BRAY, Justice.
Plaintiff appeals from a judgment of nonsuit against her.
Questions Presented.
The determination of whether there was any evidence which would have supported a judgment in plaintiff's favor involves: (a) What duty does the owner of high tension wires owe workmen on premises underneath its wires, where such owner has knowledge of impaired clearance? (b) Was such duty fulfilled here as a matter of law or should its determination have been left to the jury? (c) As to contributory negligence, did the evidence as a matter of law dispel the presumption of due care?
Facts.
Austin Dunn, husband of Dolores Dunn, was employed by the East Bay Regional Park District as a bulldozer operator. Upon his death in the accident hereafter described, Dolores as special administratrix of his estate brought this action for damages for his death.
During the week of June 20, 1949, the district commenced to fill and leval a portion of its Tilden Park property preliminary to the construction of a golf driving range and parking area. Traversing a portion of the area being filled were uninsulated high tension (12,000 volts) wires of defendant. Dirt and rocks were dumped over the entire area by employees and trucks of a contractor. Dunn's job was to spread this dirt and rocks with his bulldozer. When Collins, the district's golf course superintendent, was busy elsewhere, Dunn would tell the truck drivers where to dump. By Wednesday morning the level of the ground under the wires had been raised approximately 6 feet, leaving the distance between the wires and the top of the filled ground about 12 feet 6 inches. Thursday morning, defendant's foreman with some of its workmen went to the area to install a transformer. The foreman saw loaded trucks proceeding under the wires. He talked to Collins, calling attention to the fact that the clearance above the road was not 25 feet and that the wires carried high voltage. Thereupon Collins started stopping the truck drivers, telling them the wires were hot and to stay out from under them. Among the truck drivers he warned was one Hickman. He also warned Dunn. He returned to the foreman and asked what the latter was going to do. The foreman stated that his company would have to put in a higher pole. That afternoon defendant's assistant supervisor of electrical estimates and records, Rucker, having received a report of the hazardous condition, visited the area. He saw trucks passing under the wires. He saw Dunn, warned him of the proximity of the wires, that they carried 12,000 volts, that there should be no dumping there, and that trucks and his bulldozer should not go under the wires. Dunn told him he had already been warned by another of defendant's men. Rucker then contacted the chief aide to the district's manager, Flood, who returned to the area with him.
[262 P.2d 68] He told Flood he would have an estimator there the next day to see about raising the pole. He told Flood it was a dangerous situation and trucks should not go under the wires. Flood then called Dunn over and instructed him not to permit any more dumping within 10 feet of the line. Both Flood and Dunn told Rucker that no more dumping would be permitted in the impaired clearance area and not closer than 10 feet from the wires. He was told that the fill had been finished in the impaired clearance area. Returning to his office, Rucker asked that an estimator be sent to meet with Flood the next morning.
Friday morning Collins told Dunn to stay out from under the wires, not to dump or push anything in there. He also warned the truck drivers to stay out. On Wednesday he had also told Dunn not to dump or push anything in that area as it was finished.
Shortly before 1 p. m. Friday, Adams, an employee of the district, drove Dunn in his garbage truck from the club house to the intersection of the road leading into the parking area with the golf course drive. Dunn got off the truck and started towards the parking area. When last seen by Adams, Dunn was approximately 700 or 800 feet from and walking in the general direction of the wires. Adams continued on to the driving range shack. He saw Hickman's dump truck coming into the area. He went into the shack, talked to the carpenter in there for a couple of minutes and then he and the carpenter walked outside. The saw Dunn and Hickman lying on the ground. Dunn's head was practically in front of the left front wheel of Hickman's dump truck. His legs were extending towards the rear of the truck. Hickman was lying face down, underneath the running board, his head towards the rear of the truck. His feet were parallel to the truck. Dunn moved his arms, hitting the wheel of the truck and there was a big flash. Hickman was moving on the ground and every time he touched the running board with his back and shoulders there was a flash. As Hickman moved around he touched Dunn's body. Both men were electrocuted. The bed of the truck was elevated touching the wire.
Required Clearance.
The actual clearance at the place of the accident, prior to the making of the fill, was 18 feet 6 inches. There is considerable controversy as to what rule of the Public Utilities Commission applied. In 1948 the district had granted defendant an easement for these lines. General Order 95, Rule 37, dated 1941, provides that the basic minimum elearance above ground along thoroughfares in rural districts or across other areas capable of being traversed by vehicles or agricultural equipment is 25 feet. Rule 54.4-A(2)(a) provides that in rural districts the minimum clearance may be reduced to 22 feet above ground 'for conductors crossing or overhanging traversable portions of public or private roads or driveways.' Another rule, 54.4-A(2)(b), provides that in rural areas the clearance may be reduced to 18 feet 'for lines across areas capable of being traversed by agricultural equipment and along roads where no part of the line overhangs any traversable portion of a public or private roadway.' For at least 6 years prior to the accident and thus prior to the grant of the easement, there was and is a road which passed under that portion of the lines which was less than 22 feet above the ground before the fill was made.
While the accident happened near the road which the power lines crossed, there is no evidence that it happened on the road area nor does the evidence disclose how near to it. Therefore, the rule applicable would be 54.4-A(2)(b), as the area was in a rural district and capable of being traversed by agricultural equipment. Plaintiff contends that rule 54.4-A(2)(a) (the 22 foot rule) applies, construing that rule to mean that if the lines cross a roadway in a rural district that minimum must be provided for the entire district. But reading 54.4-A(2)(a) and 54.4-A(2)(b), it is obvious that the 22 foot requirement applies only to the lines crossing or overhanging traversable portions of public or private roads. The mere fact that the lines cross such roads does not require a clearance [262 P.2d 69] greater than 18 feet at any point other than at such roads. Prior to the making of the fill there was such clearance.
(a) Defendant's Duty.
Thursday defendant knew of the condition and realized the danger from the impaired clearance. Defendant contends that as there was no contractual relationship between it and the district or the latter's employees, Dunn was, in effect, a trespasser as against it, and the only duty owed him was for the defendant to refrain from wilful or wanton injury. In support of this theory it cites Hall v. Southern California Edison Co., Ltd., 137 Cal.App. 449, 30 P.2d 1013; Leslie v. City of Monterey, 139 Cal.App. 715, 34 P.2d 837; Hayden v. Paramount Productions, Inc., 33 Cal.App.2d 287, 91 P.2d 231; Rojas v. Southern California Edison Co., 105 Cal.App.2d 258, 233 P.2d 141; Strother v. Pacific Gas & Electric Co., 94 Cal.App.2d 525, 211 P.2d 624, all of which under the facts of the particular case seem to support the principle stated. In the Hall case, 137 Cal.App. 449, 30 P.2d 1013, the plaintiff ascended one of the defendant's poles which turned out to be defective, cut the wires which held it, causing the pole to fall, injuring him. As stated in the opinion, there was no express or implied invitation by the defendant for the plaintiff either to climb the pole or cut the wires. While the decision that the defendant owed the plaintiff no duty of ordinary care is based partly upon the fact that there was no contractural relationship between the defendant and the plaintiff or the plaintiff's employer, still it is also based upon the absence of any express or implied invitation to climb the pole. Nor was there any knowledge on the part of the defendant that the plaintiff was about to do so. The Leslie case, 139 Cal.App. 715, 34 P.2d 837, was one where employees of a contractor engaged by the city of Monterey to erect a backstop at the city's ball grounds were injured when a pole they were erecting struck the defendant's power lines. The lines were along the street outside the ball park, before the city as a party of the operation moved its fence underneath them. There was no evidence that the defendant knew of the work being done or of the change in location of the fence. The court applied the above rule to those circumstances. In the Hayden case, 33 Cal.App.2d 287, 91 P.2d 231, the defendant Department of Water and Power of the City of Los Angeles had a right of way for power lines over the Paramount property. Paramount let a contract for the construction of a building on the property. In raising steel for the new building the boom of the crane came in contact with the power lines, injuring the plaintiff, an employee of the steel subcontractor. The opinion states, 33 Cal.App.2d at page 291, 91 P.2d at page 235: 'It is at once apparent from the foregoing facts that the proximate cause of plaintiff's injuries was not any negligence on the part of the defendants but was primarily and proximately attributable to the negligence' of the steel contractor's employees. While there was some sagging of the wires, there still was a clearance of over 45 feet above the ground. The court stated that the department could not reasonably be expected to anticipate that anyone would project a boom to more than 45 feet above the ground and contact the wires, the position of which and their danger the court found to be known to the crane operator. While the court mentioned that neither the plaintiff nor the crane operator was employed by the department, it did not apply the lack of contractual relationship rule; rather it based its decision on (1) the fact that there was no evidence that the department knew of the work being done and (2) that the sole proximate cause of the accident was the negligence of the crane operator. Moreover, the court appeared to apply the duty of reasonable care on the part of the department, for it said, 33 Cal.App.2d at page 293, 91 P.2d at page 236: 'The standard of ordinary and reasonable care was attained by the city so far is its conduct is here concerned, for this means such care as a reasonably careful and prudent person, having in view the dangers to be avoided, and the likelihood of injury therefrom would exercise, under the circumstances, in order to prevent injury. * * * Reasonable care, not insurance against every possible accident, is the measure of liability.' In the Rojas case, 105 Cal.App.2d [262 P.2d 70] 258, 233 P.2d 141, the decision was based principally upon the finding that there was no evidence from which the power company 'might reasonably have anticipated that plaintiff would place a metal shaker over 33 feet in length in contact with the transmission wire.' 105 Cal.App.2d at page 260, 233 P.2d at page 143. Again, the defendant's wires had been in the same condition as to clearance for over 26 years, and complied with the requirement of the Public Utilities Commission. In the Strother case, 94 Cal.App.2d 525, 211 P.2d 624, the court held that the defendant owed no duty to display signs or warn of the danger of wires and poles erected over and on private property 26 feet above the ground which it had obtained a prescriptive right to maintain merely because of the presence of an airfield about 40 feet distant therefrom.
Analyzing all of the above cases, it appears that lack of contractual relationship between a person injured by a power line or his employer and the owner of the power line is not the sole criterion in determining the measure of duty required of that owner. Even if, as contended by defendant, deceased in our case as to it was a trespasser, there is nothing inconsistent between the rule of the above cases and that of Fernandez v. Consolidated Fisheries, Inc., 98 Cal.App.2d 91, 96, 219 P.2d 73, 77: 'Thus, while there are many cases holding that a land owner is only required to refrain from inflicting wanton or wilful injuries on a trespasser or licensee, see many cases collected 19 Cal.Jur. p. 616, § 52, fn. 13, there are many cases also holding that after 'a trespasser is seen in a position of danger, due care must be exercised to avoid injuring him, and it is negligence not to do so.'' While the Fernandez case dealt with a situation of active rather than passive negligence, we can see no reason why the duty applied there should not apply to either type of negligence, namely, the 'duty to exercise that degree of care a reasonably prudent man would have exercised under the circumstances.' 98 Cal.App.2d at page 99, 219 P.2d at page 78.
Under the circumstances of our case employees of the district were not trespassers in the area over which defendant had an easement. It knew that the district had the right to use the surface of the ground, and of course it knew on Thursday not only that the district was actually using the area under its wires but had impaired the clearance to an extent which violated the rules of the Public Utilities Commission. Thus, its duty was to use reasonable care to avoid injuring the district's employees. 'Even if at the outset of the installation of the equipment the company may have been entirely free from fault, yet, if, under changing circumstances, a hazardous condition arose, non-action or the failure to remedy such condition would constitute culpable negligence.' Lozano v. Pacific Gas & Electric Co., 70 Cal.App.2d 415, 422, 161 P.2d 74, 78.
(b) As a Matter of Law Did Defendant Fulfill Its Duty?
Primarily, of course, the question of whether defendant used reasonable care towards deceased and the other employees of the district is a matter for the jury to determine. But if there is no evidence upon which a finding of lack of such care could be based, then, as a matter of law, defendant performed that duty. In determining this question we should bear in mind that the standard of care is 'the care that a person of ordinary prudence would exercise under the circumstances. Among the circumstances are the well known dangerous character of electricity and the inherent risk of injury to persons or property if it escapes. Hence, the care used must be commensurate with and proportionate to that danger.' Polk v. City of Los Angeles, 26 Cal.2d 519, 525, 159 P.2d 931, 934. (Emphasis added.)
We cannot say as a matter of law, in view of the highly dangerous electrical load carried by the wires and the evidence of activity in the area which defendant saw, that a delay in raising the clearance space from Thursday morning until after Friday afternoon and the occurring of the accident constituted care commensurate with and proportionate to the danger that existed. Nor can we say, as a matter of law, that the warnings given by defendant to the district people and the assurance given [262 P.2d 71] defendant that there would be no more dumping in that area justified defendant in that delay. In Lozano v. Pacific Gas & Electric Co., supra, 70 Cal.App.2d 415, 161 P.2d 74, the court said that it was the imperative duty of a power company to use due diligence to discover and repair defects and dangerous conditions in their electrical instrumentalities and that failure so to do constitutes negligence. Whether defendant used due diligence in waiting over 24 hours to meet the dangerous situation disclosed here is a question of fact which should have been left to the jury to determine.
Nor can we say as a matter of law that the sole proximate cause of Dunn's death was the negligence of Hickman in moving his truck with the body elevated under the wires. The presumption of due care applies to his acts. There is no evidence of the circumstances which brought him beneath the wires. It may have been due to momentary forgetfulness, to a sudden elevating of the body due to mechanical faults or many other causes which likewise would require the determination by the jury whether they were sole proximate causes or causes jointly with the negligence of defendant if defendant was negligent.
In Mosley v. Arden Farms Co., 26 Cal.2d 213, at page 216, 157 P.2d 372, at page 374, 158 A.L.R. 872, the court stated: 'It is well settled that one test for determining the issue of negligence is whether a person of ordinary prudence should have foreseen or anticipated that someone might be injured by his action or nonaction.' Having in mind that although the fill immediately under the wires had been completed, there was still more fill to be made in the nearby area, which required the use of trucks, and also "the qualities and habits of human beings * * *" Mosley v. Arden Farms Co., supra, 26 Cal.2d at page 217, 157 P.2d at page 374, it was for the jury to determine whether a person of ordinary prudence, knowing what defendant knew, would have foreseen or anticipated that, in spite of the warnings given, the district's workmen might still drive trucks under the wires. 'Where two independent actors are involved, whether the act of the person later in time breaks the chain of causation and makes the act of the earlier person a remote cause, or whether both acts concurred in causing the injury, so that both are proximate causes, are normally questions for the trier of the fact where the act of the second person is reasonably forseeable. It is a rare case where the court may hold, as a matter of law, that the intervening act breaks the chain of causation because whether it was reasonably forseeable is a question of fact and not of law. The second act will break the chain of causation only where, under no rational interpretation of the evidence, could the later act of negligence have been reasonably foreseen.' Jones v. City of South San Francisco, 96 Cal.App.2d 427, 435, 216 P.2d 25, 29.
Benard v. Vorlander, 87 Cal.App.2d 436, 197 P.2d 42, cited by defendant, is not in point. There although the power company installed the wires, it did not maintain or have control over them. Moreover, the court expressly stated that there was nothing in the evidence to show that the company knew or should have known of the proximity of the workmen to the lines. Again, Sweatman v. Los Angeles Gas & Electric Corp., 101 Cal.App. 318, 281 P. 677, is not in point. There the wires were strung along the street, about 7 feet from and at the height of the fifth floor of the building in which the deceased was working. While moving a steel rod in and out of the windows of that floor, deceased caused it to come in contact with the wires. The case holds that the company could not have reasonably anticipated that anyone would make contact with its wires by means of a metal bar extended from a fifth story window of a building and that the law does not require one who 'maintains even so dangerous an instrumentality as a highly charged electric wire to anticipate, at his peril, every possible fortuitous circumstance under which some person might make a contact with such wire * * *.' 101 Cal.App. at page 322, 281 P. at page 678.
In Jackson v. Utica Light & Power Co., 64 Cal.App.2d 885, 149 P.2d 748, the defendant maintained poles and high tension wires over an area that the division of highways chose for a relocation of a highway.
[262 P.2d 72] There was no evidence that this area had ever been used by vehicles, agricultural equipment or machinery. The division notified the company that its poles and wires in this area would have to be moved, as construction would start at an early date. The company did nothing. Later, the construction work was started, and the company employees noticed the deceased who was an employee of the construction company operating a power shovel along the new right of way in the general vicinity of the accident and along the line of the power pole. An action was brought for the death of the shovel operator, caused by the shovel coming in contact with a telephone wire strung upon the same poles as the high tension wires. One of these wires had fallen on the telephone wire due to the breaking of a pole not immediately adjacent to the scene of the accident. The court held that from the time the company received notice of the proposed construction 'it was * * * foreseeable that the poles and wires along the new right of way might be subjected to strains from vehicles and other equipment * * * [and] that, under the authorities cited above, the question of whether the negligence of the defendants was the proximate cause of the death of the deceased was a question of fact * * *' to be left to the determination of the jury, 64 Cal.App.2d at page 894, 149 P.2d at page 752. The authorities referred to stated, 64 Cal.App.2d at pages 891, 892, 149 P.2d at page 751: 'The doctrine of 'proximate cause' or 'causal relation necessary to the existence of liability' is one which has presented some difficulty in its application to cases grounded upon negligence in which an act of the plaintiff or another has intervened in such manner that the intervening act may be said to be immediate cause of the resulting injury. There are many authorities holding that the intervention of such act does not necessarily prevent the negligence of the defendant from being the proximate cause of the resulting injury. * * * While the question of whether the negligence of a defendant may be held to be the proximate cause of the injury despite such intervening act is a question of law for the determination of the court * * *, the foregoing authorities clearly indicate the question of whether the negligence of a defendant should be held to be the proximate cause of the injury is ordinarily a question of fact for the determination of the jury. * * * if the question of whether defendants' negligence is a 'substantial factor' is 'open to a reasonable difference of opinion', the question is one for the jury (sec. 434). And even in this state where the test seems to be based generally upon foreseeability, it has been said that a defendant may be liable even though 'it might not have foreseen the particular injury which did happen' * * * and that it is not necessary that defendant should have been able to anticipate the 'precise form of the consequential injury' * * *.'
(c) Contributory Negligence.
In Jackson v. Utica Light & Power Co., supra, 64 Cal.App.2d 885, 149 P.2d 748, it was held that where there were no eyewitnesses of the accident 'the question of whether deceased was chargeable with negligence in bringing the power shovel in contact with the telephone wire was a question of fact for the jury and that in the determination of this question, plaintiffs were entitled to the benefit of the presumption that the deceased had used due care for his own safety and had not been guilty of negligence.' 64 Cal.App.2d at page 895, 149 P.2d at page 753. Defendant contends that the evidence introduced by plaintiff destroyed the presumption of due care. See Levin v. Brown, 81 Cal.App.2d 913, 185 P.2d 329, and Rogers v. Interstate Transit Co., 212 Cal. 36, 297 P. 884, to the effect that where the plaintiff's evidence is wholly irreconcilable with the presumption the latter is dispelled. As stated in Graf v. Garcia, 117 Cal.App.2d 792, 796, 256 P.2d 995, 997: '* * * where the question concerns the conduct of a person who is dead the presumption of the exercise of due care is operative unless the testimony of the witnesses produced by the party who would benefit by the presumption is 'wholly irreconcilable' with the presumption or 'only one reasonable conclusion (may) be drawn from the facts established by the testimony of' [262 P.2d 73] such witnesses and '(t)hat conclusion was that the deceased in that action had been guilty of contributory negligence.'' Defendant's contention that the evidence is irreconcilable with the presumption is based on the fact that prior to the accident deceased well knew of the danger. For example, Collins testified that when he told Dunn to keep his bulldozer out from under the wires Dunn said, 'Well, you don't think I'm going to get up under them * * *. You don't think I want to die?' But proof of knowledge of the danger alone is not irreconcilable with the presumption. If it were, the presumption could never be applied in railroad crossing cases because everyone knows there is danger at a railroad crossing. It only becomes irreconcilable if the evidence shows that the deceased voluntarily disregarded the danger. 'Where a person is warned to keep away from a high voltage wire and not to touch it and is fully informed of the danger of so doing he is guilty of contributory negligence as a matter of law if he voluntarily contacts the wire.' Rojas v. Southern California Edison Co., supra, 105 Cal.App.2d 258, 259, 233 P.2d 141, 142. (Emphasis added.) There is no evidence that Dunn voluntarily came in contact with the charged truck. In view of the presumption and in the absence of evidence that he did, we may assume that he did not, or that in momentary forgetfulness of the danger he might have been attempting to save Hickman after the latter had placed himself in a position of danger. '* * * where the negligence of a defendant has imperiled human life, a person who takes such steps as are reasonably necessary to rescue or protect those imperiled is not contributorily negligent in voluntarily leaving a place of safety and incurring danger if he does not act with a recklessness which would not be warranted, under the circumstances, in the judgment of a prudent man. * * * '* * * in such cases it is for the jury to say whether the plaintiff has acted with prudence under the circumstances or has conducted himself in so reckless a manner as to defeat the right of recovery.'' Petersen v. Lang Transp. Co., 32 Cal.App.2d 462, 467, 90 P.2d 94, 97; see also McClure v. Southern Pacific Co., 41 Cal.App. 652, 183 P. 248.
As the evidence is not 'wholly irreconcilable' with the presumption, the question of contributory negligence is one of fact for the jury.
The judgment is reversed.
PETERS, P. J., and DOOLING, J., assigned, concur.