Abrams v. City of Seattle

• Decision Date: 15 October 1910
• Citation: 60 Wash. 356,111 P. 168
• Court: Washington Supreme Court
• Parties: ABRAMS et al. v. CITY OF SEATTLE.

111 P. 168

60 Wash. 356

ABRAMS et al. v. CITY OF SEATTLE.

Supreme Court of Washington

October 15, 1910

Department 2. Appeal from Superior Court, King County; J. T. Ronald Judge.

Action by Anna E. Abrams and another, by Anna E. Abrams, her guardian ad litem, against the City of Seattle. From a judgment for plaintiffs, defendant appeals. Affirmed.

Scott Calhoun and H. D. Hughes, for appellant.

McClure & McClure, H. W. Hogue, and Howard Waterman, for respondents.

CROW, J.

About 10 o'clock p. m. on March 12, 1908, W. L. Abrams, living in the city of Seattle, went into the kitchen of his residence, attempted to turn on an electric light, and received a shock which instantly killed him. The city of Seattle then owned and operated an electric power plant, from which, under contract, it was furnishing current to Abrams' house for illuminating purposes. This action was commenced against the city by Anna E. Abrams and Eleta L Abrams, by Anna E. Abrams, her guardian ad litem, widow and daughter of W. L. Abrams, to recover damages resulting from his death. From a judgment in their favor, the defendant has appealed.

The electric current was transmitted from the original source of energy to a substation, from which it was further transmitted to various localities throughout the city over what were called primary wires, each carrying about 2,200 volts. By means of an instrument known as a transformer the current from a primary wire was reduced to about 220 volts, and then transmitted over a secondary wire into residences for lighting purposes. The wire carrying 2,200 volts is called the 'primary,' and the wire which leaves the transformer and carries only 220 volts is called the 'secondary.' The former carried a current dangerous to human life, and the latter one that a man may receive into his body without injury. To prevent too heavy a current being carried into a residence, a properly constructed lighting system is provided with a ground, which is a device to divert any excessive current with which the secondary may become charged, and conduct it to the earth whence it returns to the source of supply at the central station and registers upon a switchboard panel. When a large amount of excess current is so conducted to the earth, the ground is a heavy one. When the amount is small, a light ground results. The ground device used by the city consisted of an iron rod about five feet and a half in length, driven full length into the earth. To this rod was securely riveted and soldered a No. 6 copper wire, which, running up one of the light poles, connected with the secondary wire. The various circuits extending from and returning to the station were numbered. The Abrams residence was on No. 2. When a ground occurred, it registered on the switchboard panel at the station by means of two lamps known as 'ground lamps,' which ordinarily burn but dimly. When the ground registered, one of these lamps would go out, while the other would burn with great brilliancy. The city had a 'two-phase' system, by which one set of ground lamps was used for two circuits. Circuit No. 2, conducting the current resulting in Mr. Abrams' death, was on the same phase with circuit No. 8. If one of these circuits registered a ground, the operator at the station would be unable to observe a subsequent ground coming over the other circuit on the same phase until the first ground had been corrected. About 10 o'clock on the evening of the accident a ground was registered from circuit No. 8, and continued for several hours. The effect of this condition was that a subsequent ground on circuit No. 2 would not register at the central station. A short time before his death Mr Abrams, from his window, had noticed some electric phenomena on the wires near his home, afterwards shown to have been caused by the 'primary' crossing and coming in contact with the 'secondary.' This contact was not continuous, but intermittent; a variable but heavy wind occasionally throwing the wires together. Evidence was introduced to show that the 'secondary' wire and the insulator to which it was attached had become separated from the cross-arm of the light pole; that the secondary had fallen across the primary where insulation had become defective from rain and other causes; that the 2,200 voltage from the primary was thus transmitted to the secondary; that this excess voltage did not reach the earth because the ground device was out of repair; that this condition of the wires and ground might have been caused by the plasting of a large stump near by; that the ground did not carry the excess current from the secondary; and that it was therefore carried into the dwelling house where it electrocuted Mr. Abrams. The appellant contended that it had exercised due diligence in the inspection of its wires and other appliances; that it had used such modern and proper devices as were ordinarily used and required; that the defective condition of the wires and ground was caused without its participation, knowledge, or consent by third parties; and that the death of Mr. Abrams resulted from an unavoidable accident, and not from its negligence.

Appellant first contends that the trial judge erred in giving the following instruction: 'I instruct you that if you find that the accident complained of was one which, in the ordinary course of business, would not have occurred except for failure or neglect on the part of the defendant, its agents or employés, to use that degree of care which the law requires, and which I will hereafter explain to you, and you further find that the negligent operation of the defendant's electrical apparatus is naturally accompanied with danger, and that knowledge of its condition is practically limited to the defendant or its servants, and evidence as to the same is unavailable except through it or them, and that the deceased was under no obligation to know and did not know, or have reason or opportunity to know of the danger that threatened him, then the mere happening of the accident under such circumstances creates the presumption that the defendant was negligent, and in that case the burden would be shifted to the defendant to show by a fair preponderance of the testimony that it was not guilty of such negligence.' In substance appellant's contention is that the trial judge erred in holding that the burden of proof which was shifted to it to show that it was not negligent should be sustained by it by 'a fair preponderance of the testimony.' We think no prejudicial error was committed in this regard. The doctrine of res ipsa loquitur should be applied to its fullest extent in this case. The appellant for its own profit was dealing in one of the most dangerous agencies known to modern science. Electricity is a silent power, which ordinarily can be neither seen nor heard. Yet it can be so controlled by those upon whom the duty of its control is imposed that it may safely be conducted into a private residence, where it becomes harmless and useful. The city had contracted to furnish the Abrams house with light. It was under an implied contract to do this in the safest manner possible. Its duty was to protect Abrams and his family by exercising the highest degree of care, skill, and diligence in its selection, construction, and maintenance of devices and appliances. Mr. Abrams was entitled to assume, when attempting to utilize the electric current in the customary manner, that he would not be subjected to personal injury or sudden death. When he did so attempt to use it and was electrocuted, a presumption of negligence on appellant's part immediately arose. The fact of his injury was itself sufficient to constitute a prima facie case of appellant's negligence. To say that his heirs or representatives cannot recover damages until they affirmatively prove some specific act of negligence by a fair preponderance of the evidence might result in a denial of their right of recovery, no difference how negligent the appellant may have been. Twenty-two hundred volts of electric current could not have passed through the body of Abrams without some negligence, mismanagement, or mishap which, under ordinary circumstances, could only have been known to, or be explained by, the party in charge of the system. The accident being shown, the burden devolved upon the appellant either to disclose a cause for which it was not responsible, or otherwise show that it (the appellant) was guilty of no negligence. How could appellant do this? Manifestly by affirmatively showing the true cause of the accident, or that its system was in as perfect condition and repair as it could be kept by exercising the highest degree or diligence, and that Abrams' death was the result of some accident beyond appellant's control. This burden devolved upon appellant, and, while it might perhaps have been better for the trial judge to have omitted from the instruction the words 'by a fair...