Opinion
Hearing Granted by Supreme Court Nov. 28, 1927.
COUNSEL
Frank E. Powers, of San Francisco, and Joseph M. Raines, of Fairfield, for appellant.
Clarence N. Riggins, of Napa, and Francis McInnis, of Fairfield, for respondent.
OPINION
FINCH, P. J.
The complaint alleges that William S. S. Young, being in possession under a contract of purchase of a certain vacant city lot, over and across which the defendant maintained two service wires for the purpose of furnishing light, heat, and power to the occupants of a house on another lot, erected a one-story frame building on his said lot, "and said house was so placed upon the said premises that when the same was erected the said electric wires rested upon its roof"; that during the course of construction of the building Young "called the attention of defendant’s officers and agents to the said wires upon his premises and requested them to remove the same, but the said defendant and its officers, agents, and employees carelessly and negligently failed and neglected to remove said wires, and carelessly and negligently maintained the same * * * upon his roof until the fire which burned said house as hereinafter alleged, and the defendant and its officers, agents, and employees well knew at all of said times that its wires were stretched over the premises of said Young and upon the roof of his house, and that their maintenance in said position was dangerous to his property and willfully, wantonly, carelessly, and negligently maintained the same thereat; * * * that by reason of said willful, wanton, careless and negligent acts on the part of said defendant, and its officers, agents, and employees, and on or about the 20th day of July, 1920, the electric current conveyed by said wires caused the said house of said Young to ignite and take fire at or about the place where said wires rested upon its roof, and that the said house, together with its contents, was burned and entirely destroyed by said fire," to his damage in the amount of the value thereof; and that the plaintiff has succeeded to Young’s claim against the defendant for such damages.
The answer denies all alleged acts of negligence and, as a separate defense, alleges:
"That, prior to the destruction of the aforesaid house by fire on or about July 20, 1920, said William S. S. Young negligently inclosed two of defendant’s live electric wires in a piece of rubber hose about 3 feet in length, about 3 ¼ inches in circumference, about 3/4 of an inch in diameter and about 1/8 of an inch thick, and negligently caused said two electric wires so inclosed in said rubber hose to come in contact with and to rest upon the roof of said house at points on said house, and that, if the fire which destroyed said house as aforesaid was in any way the result of the contact of said two electric wires so inclosed in said rubber hose with the roof of said house, then and in that event the said negligence of said William S. S. Young as in this paragraph alleged directly and proximately caused or contributed to the destruction of said house by said fire."
The jury returned a verdict in favor of the plaintiff, and the defendant has appealed from the judgment entered thereon.
It appears from the evidence without conflict that the service wires of the defendant, one a No. 10 wire and the other a No. 8, both being insulated and carrying 110 volts of electricity, rested upon the roof of the Young house, as alleged in the complaint, and that the fire started at or near the point of contact of the wires with the roof. On cross-examination of a witness for the plaintiff, the defendant proved that Young stated, five or six months before the fire, while the roof was being shingled, that he had notified the defendant to remove the wires. Similar proof was made by defendant on the cross-examination of the other witnesses. This hearsay evidence introduced by defendant, although it would have been error to admit it over objection, is sufficient to establish the fact that the defendant had notice of the position of the wires at the time stated. The plaintiff testified that, about six weeks before the fire, she heard Young notify William Aden, the defendant’s superintendent of construction, that "he wanted the wires taken off of the house because he was afraid of fire." Aden was a witness for the defendant at the trial, but he did not deny the plaintiff’s said testimony. Young died prior to the trial Several weeks before the fire Young inclosed the wires, at their point of contact with the roof, in a piece of ordinary garden hose about four feet in length. He "slit the hose and then inclosed the two wires in it."
C. R. Otterson, fire chief of the city of Napa for eighteen years, testified:
"The movement of those wires on the shingled roof, caused by the wind, if there was any, would wear the insulation out, and if it wore off the insulation and then the wires happened to swing together, it would create an are. The pair of wires marked Plaintiff’s Exhibit No. 5 (taken from the service wires in question) shows evidence of a short; they show that they have been making and breaking, making an are, causing the wires to burn. * * * Pitting on one of these wires indicates a short. A short created and shown by that pitting might have caused the fire. * * * A piece of garden hose about one-quarter of an inch in thickness is a good insulator if it is solid. If a short was created within the interior of the four-foot piece of rubber hose around the wires, the hose would be burned if the arc created by that short was heavy enough. * * * The placing of a hose around the wires would lessen the danger from fire."
Another witness testified:
"Both of the wires touched the roof, up here near the peak along the south side of the back gable; they were resting on the roof, so that they patted on the roof; they rested on the roof for several months prior to the fire. When I first saw the fire * * * the south end of the house, up towards the roof, was afire. The fire was directly under the wires, and the top of the house above the screen was all afire up to the top of the gable. There was no fire below the screen when I saw it. * * * The fire was above the screen, at the top of the roof, when I first saw it."
Much testimony to the same effect was given by other witnesses. The house was completed immediately before the fire, and it had not yet been occupied. There were no live wires about the building, except the two service wires mentioned. The only reasonable inference from the evidence is that the fire was caused by the current carried through those wires. There is no evidence tending in the slightest degree to show that the fire had its origin in any other cause.
Appellant contends that the court erred in overruling its general demurrer to the complaint. It is unnecessary to discuss separately the objections here urged against the complaint, because such objections are disposed of by what is said in respect to other contentions of the appellant. It may be stated further that the case was tried upon the theory that proper issues were raised by the pleadings.
The court properly denied defendant’s motion for a nonsuit. The evidence shows without contradiction that the defendant was grossly negligent in transmitting electricity through its service wires for five or six months, during all of which time it had actual notice that such wires were resting on the roof of Young’s house. Whether or not Young was negligent in placing his roof in contact with the insulated wires, under the assumption that the defendant would perform its duty of removing them within a reasonable time, and before the destruction of the insulation thereof by friction with the roof, was a question of fact for the determination of the jury; but the uncontroverted facts show that the defendant was guilty of negligence as a matter of law.
It does not appear by what right the defendant maintained its service wires over the Young lot prior to the erection of the building, and it may be presumed that it was not a trespasser; but it cannot be presumed, contrary to common experience, that the defendant had the right to maintain the wires in their then position to the exclusion of any building which the owner of the lot might see fit to erect thereon. Upon notice of the erection of the building in question, it became the duty of the defendant to so change the location of its wires as not to interfere therewith.
The remainder of the alleged errors relied on by appellant relate to the giving and refusing of instructions. In both the opening and the reply briefs of appellant it is repeatedly said:
"Charles Otterson, a witness for plaintiff, testified that the placing of a piece of rubber hose around the wires would lessen danger from fire. No evidence to the contrary was given; hence there was no evidence upon which to base a finding by the jury that the inclosing of defendant’s wires in a piece of garden hose contributed to any danger from fire."
The burden being on defendant to prove contributory negligence, the foregoing statement is correct. This eliminates from the ease the only contributory negligence alleged in the answer, and renders harmless any errors in the instructions relating to such alleged negligence.
Appellant contends, however, that the allegations of the complaint and the evidence introduced by the plaintiff show that Young was guilty of contributory negligence in placing the building in contact with the wires, and in not himself removing the wires, and that, since such negligence is so made to appear, the defendant may avail itself thereof as a defense without pleading it. If Young was negligent in so erecting the building, it does not appear that such negligence was the proximate cause of the fire. He had the right to erect the building upon his lot, and it was the defendant’s duty to remove the wires, over which it had complete control. Young’s negligence, if any, ceased when the roof was completed, five months or more before the fire. He certainly was not required, in the exercise of ordinary care, to remove the building in order to avoid the danger, or, as appellant contends, to cut the wires, thereby injuring the defendant’s property. Can it be said that by reason of Young’s original act of negligence, if such it was, he was forever barred from recovery of damages caused by the defendant’s continuous subsequent wrongful conduct and negligence? The presence of the wires on the roof constituted a situation which became dangerous only when a current of electricity was passed through them. The situation was created by the combined acts of Young and the defendant; but the danger was created solely by the defendant’s act of transmitting electricity through the wires. This it did continuously for a long period of time and with full knowledge of the situation. The only rational inference to be drawn from the evidence is that such negligence on the part of the defendant was the sole proximate cause of the fire.
Appellant sets out some 25 instructions, either given or refused, and contends that the action of the court in relation thereto constituted error. In several of them the court stated that contributory negligence is a defense only "as against any ordinary negligence of the defendant." This was error. Tucker v. United Railroads, 171 Cal. 702, 704, 154 P. 835. There being no proof, however, of contributory negligence, the error was not prejudicial.
The other instructions of which complaint is made are too numerous to be discussed in detail. It is deemed sufficient to say that they have been carefully examined, and that no prejudicial error has been discovered in any of them. None of such instructions have any bearing upon the issue as to whether the fire was caused by electricity carried through the wires, and therefore could not have influenced the implied finding of the jury that it was so caused. With that finding as a basis, it appears from the uncontradicted evidence, as a matter of law, that the fire was caused by the defendant’s negligence, and that no negligence of the plaintiff contributed thereto. From an examination of the whole cause it appears, not only that the errors complained of have not resulted in a miscarriage of justice, but that any other verdict than that returned by the jury would have been a miscarriage of justice.
The judgment is affirmed.
We concur: GLENN, Justice pro tem.; PLUMMER, J.