Opinion
Sac. No. 2468.
January 23, 1918.
APPEAL from a judgment of the Superior Court of Tulare County. J.A. Allen, Judge.
The facts are stated in the opinion of the court.
Farnsworth McClure, and Power McFadzean, for Appellant.
Murry Knupp, Goodfellow, Eells, Moore Orrick, and Short Sutherland, for Respondents.
This is an appeal by the Mt. Whitney Power Electric Company from a judgment, after verdict against it and in favor of the respondents, plaintiffs, and defendant San Joaquin Light Power Corporation.
The appellant was operating a power line carrying an electrical current of thirty-three thousand volts and also a telephone line using one hundred volts. For some distance these lines were parallel. The high voltage electric line came in contact with the telephone line, the electricity passed along the telephone line and into a private line owned by the plaintiff Sickles, then to his house, causing it to catch fire and be destroyed. Plaintiffs claim that the appellant was negligent in maintaining its two lines so close together that they came in contact. The appellant claims that the plaintiff Sickles was guilty of contributory negligence in maintaining his private telephone wire so close to the appellant's telephone wire that they came into contact. The damages claimed are for the destruction of the house and its contents. The questions of negligence and of contributory negligence were submitted to the jury under proper instructions. The appellant contends that inasmuch as the power line and the telephone line owned by it were constructed four feet apart, as required by statute (Stats. 1911, p. 1037), that it was not guilty of negligence in the construction thereof, and that as they were maintained at the same distance apart there was no negligence in the maintenance thereof. This assumption is erroneous, for the reason that while it is true that a violation of a statute is negligence per se, it does not follow that one who has complied with the statute is, therefore, not guilty of negligence. The most familiar illustration of this rule is the matter of the violation of speed laws. It is held that, although one is driving at a speed less than the statutory limit, it does not follow that he is not guilty of negligence. The question is whether under all the circumstances the speed at which the person is traveling is negligence, and that is a question for the jury. ( Cook v. Miller, 175 Cal. 497, [ 166 P. 316].) There was evidence justifying the finding of the jury that there was negligence, both on the theory that the said statute was violated in the construction and maintenance of said lines nearer than four feet, and also in permitting the wires to be maintained sufficiently close together so that they came in contact. The question whether the injury was caused by an act of God, or was contributed to by the negligence of the plaintiff, was submitted to the jury, and the decision thereon was adverse to the defendant and is conclusive here. The subject of contributory negligence was amply covered by the instructions given. It was not error, therefore, to refuse appellant's instruction B on that subject. It is claimed by appellant that the defendant San Joaquin Light Power Company was equally responsible with the appellant, by reason of the fact that it moved the telephone line of the appellant from its location on the opposite side of the road to its position near and parallel to the power line of the appellant, but appellant had notice of its removal and consented thereto, and even if the jury erroneously decided in favor of the San Joaquin Light Power Company, or the court erred in refusing to grant its motion for nonsuit, appellant cannot complain of that fact, nor of instruction 18 favoring said defendant, for its liability was entirely independent. ( Fowden v. Pacific Coast Steamship Co., 149 Cal. 151, [ 86 P. 178]; Fearon v. Fodera, 169 Cal. 370, [Ann. Cas. 1916D, 312, 148 P. 200].) It is proper for a jury to find for one defendant and against the other defendant. (Code Civ. Proc., sec. 578; Fowden v. Pacific Coast Steamship Co., supra.)
It was not error for the court to instruct the jury that the measure of damages was the "value" of the property destroyed. (Civ. Code, sec. 3333; Sutherland on Damages, 4th ed., par. 105.)
For the foregoing reasons the judgment is affirmed.
Melvin, J., and Victor E. Shaw, J., pro tem., concurred.