107 Cal. 120, 15254, Giraudi v. Electric Improvement Co., of San Jose

Docket Nº:15254
Citation:107 Cal. 120, 40 P. 108
Opinion Judge:TEMPLE, Judge
Party Name:GIOVANNI GIRAUDI, Respondent, v. THE ELECTRIC IMPROVEMENT COMPANY OF SAN JOSE, Appellant
Attorney:John E. Richards, and Richards & Welch, for Appellant. D. W. Herrington, and Charles Clark, for Respondent.
Judge Panel:JUDGES: In Bank. Temple, J. McFarland, J., Harrison, J., Garoutte, J., Henshaw, J., Beatty, C. J., and Van Fleet, J., concurred.
Case Date:April 06, 1895
Court:Supreme Court of California
 
FREE EXCERPT

Page 120

107 Cal. 120

40 P. 108

GIOVANNI GIRAUDI, Respondent,

v.

THE ELECTRIC IMPROVEMENT COMPANY OF SAN JOSE, Appellant

No. 15254

Supreme Court of California

April 6, 1895

Page 121

[Copyrighted Material Omitted] Page 122

Rehearing Denied. Beatty, C. J., Dissented from the Order Denying a Rehearing.

Appeal from a judgment of the Superior Court of Santa Clara County and from an order denying a new trial.

COUNSEL:

John E. Richards, and Richards & Welch, for Appellant.

Conceding, for the purpose of argument, that the defendant was guilty of negligence in the location of its wires, as claimed by the plaintiff, the uncontradicted evidence proves the plaintiff guilty of contributory negligence which immediately and proximately caused the injury, and which should defeat a recovery by the plaintiff. (Baltimore etc. R. R. Co. v. Whitacre, 35 Ohio St. 627. See, also, 4 Am. & Eng. Ency. of Law, 22, and cases cited to note 1, 74, and cases cited to note 2; 1 Shearman and Redfield on Negligence, 4th ed., secs. 56, 112, note 4; Beach on Contributory Negligence, 39, 40, and cases cited.) The court erred in overruling the objections of defendant to the questions asked the expert witness, with reference to what would be reasonable and prudent precautions and practice in the placing and maintaining of electric wires as these were placed and maintained, as these questions call upon the expert witness to find and state whether the defendant was negligent or not, and this finding and verdict is solely within the province of the jury. (Lawson on Expert Evidence, 507-15.) The court erred in its instruction that "What constitutes reasonable care must be judged by the circumstances of this case, of which you are to judge. If he is ignorant of the danger that might result from contact with these wires, a less degree of care was demanded of him than would have been required if he had been informed of such danger." (See Shearman and Redfield on Negligence, 4th ed., sec. 12; Beach on Contributory Negligence, 23, 24, and cases cited.)

D. W. Herrington, and Charles Clark, for Respondent.

The motion for a nonsuit was properly denied, as, under the facts shown the question of negligence was one for the jury. (Shearman and Redfield on Negligence, 1st ed., sec. 11.) Even if plaintiff knew the preposterous manner in which the defendant managed its business in locating the wires and leaving them without inspection, it does not follow that a nonsuit should have been granted. (Magee v. North P. Coast R. R. Co ., 78 Cal. 430; 12 Am. St. Rep. 69.) This is especially true in a case like the one at bar, where the danger is great, difficult of detection, and the agencies creating the danger are difficult to manage, and are concealed until their fatal effects disclose them. (Thompson on Law of Electricity, sec. 66.) The doctrine of knowledge as affecting caution or negligent acts of the plaintiff, as given by the court in this case, was proper. (Parrot v. Wells, 15 Wall. 524.)

JUDGES: In Bank. Temple, J. McFarland, J., Harrison, J., Garoutte, J., Henshaw, J., Beatty, C. J., and Van Fleet, J., concurred.

OPINION

TEMPLE, Judge

Page 123

[40 P. 109] This action is for damages for injuries received through an electric shock caused by the negligence of defendant.

Plaintiff was employed as dishwasher in a hotel and restaurant at San Jose, kept by one Lamolle. The house was lighted by incandescent lights furnished by defendant. The wires passed over the house from the southeast corner, where they descended from the Hensley house to the apex on the roof. At the southeast corner it was twelve feet above the roof. At the ridge of the roof the wires were eighteen inches high, and ran thence diagonally over the northern slope of the roof for sixty feet, at an average height of two feet, to a point on the north firewall, where they descended on the outside of the wall to the transformer. Those wires were part of a circuit of one thousand lights and carried one thousand volts...

To continue reading

FREE SIGN UP