Shade v. Bay Counties Power Co.

McFARLAND, J. This action was brought jointly by the parents and widow of John Chester Shade, deceased, to recover damages for the death of said deceased, alleged to have been caused by the negligence of the defendant. The plaintiffs are the only heirs of the deceased. The jury returned a verdict for plaintiff, fixing the damages at eight thousand dollars, for which amount judgment was rendered. From the judgment and from an order denying defendant’s motion for a new trial the defendant appeals. Defendant makes a number of contentions for a reversal, but under our view of the case only one of these contentions need be specially considered,—namely, that the facts show as a matter of law that the deceased was guilty of contributory negligence, which was the proximate cause of his death, and therefore defendant’s motion for a new trial should have been granted, etc. We think that this contention must be sustained. With respect to the principle of contributory negligénce, it is well established “that where the facts are clear and undisputed, and where no other inference than that of negligence can be drawn from them, the court is not required to submit the question to the jury, but may itself make the inference.” (Studer v. Southern Pacific Co., 121 Cal. 400, [66 Am. St. Rep. 39, 53 Pac. 942].) In Thompson on Negligence (vol. 1, sec. 1249) the rule, supported by ample authority, is stated to be that “the traveler cannot recover if he could have avoided the accident by the exercise of reasonable care on his part.” (See, also, Flemming v. Western Pacific R. R. Co., 49 Cal. 253.) In the ease at bar the facts were these: At the time of the occurrences out of which this litigation arose the defendant *12 was the owner of an electric-power system and carried electricity by means of poles and wires along and over the side of the American Cañón public road in Solano County. On the morning of July 4, 1904, the deceased, Chester Shade, and seven other persons were traveling in a three-seated two-horse wagon along said road, and when approaching a certain bridge they saw that a few yards on the other side of the bridge one of the electric wires of defendant’s system had become detached from a pole and was hanging down over the side of the road a few feet from the ground. The wagon was stopped on or about the middle of the bridge, which was about forty-one feet long, so that when the wagon was stopped it and its occupants were about thirty feet away from the hanging wire. The deceased and one of the parties, named Hodges, got out of the wagon and went a short distance towards the hanging wire. The deceased then returned to the wagon and took from it a small rope or cord, about a quarter of an inch thick and about four feet long, and started with it towards the wire. Another party, Forbes Brown, said to him, “Don’t touch the wire, Chester, whatever you do,” and the deceased replied, “There is no danger of my doing that; I would not think of doing that.” The deceased and Hodges then went near to the wire, which had attached to it an instrument in the form of an insulator. It does not appear to what extent this insulator was intended to be a protection to appellant’s employees even when the wires were in proper position on the poles. It appears that it was not a protection against a large voltage, which sometimes passed' through the wires. It appears to have been fastened to the wire on one side only, so that it was more dangerous to touch it at some points than at others. Moreover, it had been broken by the fall, and pieces of it were lying on the ground near the pole. The deceased approached the hanging wire quite closely, for he threw the end of the short cord over the insulator and fastened it there by a knot. He then reached toward Hodges for a flagpole which the latter had, and to which he intended to tie the cord, when he received a charge of electricity, which caused his death a day or two afterwards. The deceased was not a backwoodsman who had never heard of electrical plants and the danger which lurks in live wires— if, indeed, such a person could be found in California. He had been born and had always lived in the city of Vallejo, where, *13 as in nearly every American city, electricity is used, was a business man, twenty-eight years old, and of good intelligence. He knew the danger of live wires, but was not an expert ■electrician. He had not been placed by the negligence of the appellant in a position of peril from which he must by some means extricate himself, so that he might have been excused if he had not used the best judgment in trying to avoid danger. He was in no danger whatever. It appears probable from the evidence that he and his party could have driven past without any risk, as the distance from the hanging wire to the edge of the road was, at the narrowest point, nine feet and nine inches. However, it was not necessary for them to drive past; they could have turned back, and, if they could not have reached their original destination by some other road, they could have had their picnic at some other place; and if they had suffered any serious wrong by the obstruction they could have recovered damages. They were not even tempted by any business interests to incur the danger of trying to remove the wire, nor were they impelled by any sense of duty to do so. They were traveling merely for the purpose of pleasure. Exactly how near the deceased went to the wire does not appear from the testimony of the witnesses who were present at the time. One of them testified that he could not have been closer to the wire than fourteen inches. It appears quite probable from the testimony of the expert electricians that the deceased did not receive the shock which killed him through the cord which he held in his hand; but that some part of his person or clothing came in contact with the wire, or was so close to the wire that the electricity “sparked” or “jumped” from the wire to his person. While standing so near the wire and being employed in trying to adjust the cord and pole he might readily have inadvertently moved nearer to the wire. At all events, it is clear that he unnecessarily, heedlessly, and recklessly placed himself in a most dangerous position, which resulted in his receiving the deadly shock. “No other inference than that of negligence can be drawn from” Ms conduct. It was careless and negligent in the extreme sense, and is fitly characterized by the old phrase “foolhardy.”, Our opinion is that he was guilty, as a matter of law, of contributory negligence, and that therefore the nonsuit should have been granted, . and the verdict was unwarranted. *14 The judgment and order appealed from are reversed. Lorigan, J., and Henshaw, J., concurred. Hearing in Bank denied. Beatty, C. J., dissented from the order denying a hearing in Bank, and filed the following opinion on the 19th of October, 1907:—