City of Tacoma v. Bonnell

• Decision Date: 04 November 1911
• Citation: 118 P. 642,65 Wash. 505
• Parties: CITY OF TACOMA v. BONNELL.
• Court: Washington Supreme Court

118 P. 642

65 Wash. 505

CITY OF TACOMA v. BONNELL.

Supreme Court of Washington

November 4, 1911

Department 1. Appeal from Superior Court, Pierce County; Ernest M. Card Judge.

Action by the City of Tacoma against J. E. Bonnell. Judgment for defendant, and plaintiff appeals. Affirmed.

T. L Stiles, F. R. Baker, and F. M. Carnahan, for appellant.

James B. Murphy and Hudson, Holt & Harmon, for respondent.

MOUNT J.

Plaintiff brought this action to recover from the defendant the amount of a judgment which the plaintiff was compelled to pay in the case of Ohrstrom v. Tacoma, reported in 57 Wash. 121, 106 P 629. The complaint alleged that the plaintiff maintained in the city of Tacoma primary and secondary wires for the transmission of electricity for heating and lighting purposes; that the primary wire carried a current of 2,300 volts, dangerous to life, and the secondary wire carried a current of 220 volts, from which secondary wires electricity was supplied to its users; that the voltage on the primary wires was reduced by a transformer to 220 volts on the secondary wires; that these wires were secured to arms on posts, and the defendant negligently permitted some plank to fall on these wires, and thereby caused the wires of the primary and secondary currents to come in contact, and that, as the result thereof, about 1,100 volts of the heavy voltage of the primary current was passed to a certain secondary wire; that the city had no notice or knowledge of this condition, and that John Ohrstrom came in contact with the secondary wire thus charged, and was killed; that his widow and minor children brought an action against the city and recovered a judgment amounting to $12,039.60, which the city was required to pay. The complaint also alleged that notice of said action was given to the defendant, and he was required to defend the same, which he neglected to do. The defendant answered the complaint, and, after denying the principal allegations thereof, filed two separate affirmative defenses, as follows:

'(1) That in the action brought by Christina Ohrstrom and others against the city of Tacoma, which action is referred to in paragraphs 10, 11, 12, 15, 16, and 17 of plaintiff's complaint, no negligence on the part of this defendant was alleged, but the said plaintiffs state as the negligence of the city of Tacoma, defendant in said action, on which the said action was based and for which a recovery was sought, in the following language: 'The death of plaintiffs' decedent as aforesaid was caused by the negligence of the defendant municipal corporation in failing to install proper permanent ground wires, or other connection, or other proper appliances to protect the secondary circuit aforesaid from being overcharged by high potential current from the primary circuit or other causes, and to render said secondary circuit harmless to human life in the event that the said secondary circuit should become overcharged to such an extent as to become dangerous to human life, and to the further negligence of said defendant municipal corporation in permitting and allowing its said secondary circuit to become overcharged by a high potential electric current to such an extent as to be dangerous to human life, and to the further negligence of said defendant municipal corporation in failing to detect, after notice thereof, the dangerous gerous overcharge upon its said secondary circuit, and in failing to take proper and necessary steps to ascertain said dangerous condition of said secondary circuit and in failing to take proper steps and precaution to render said secondary circuit in its known dangerous and overcharged condition innocuous and harmless to human life by cutting off all current therefrom or by other proper means.'

'(2) That in its answer in said case the said city of Tacoma denied each and every allegation contained in that part of the complaint of the plaintiffs which is quoted in the foregoing paragraph hereof, and thereupon the plaintiffs in said action replied to the said answer, and issue was joined therein on all of the allegations of negligence contained in the said complaint and set forth in the quotation therefrom in the following paragraph.

'(3) That upon the trial of said action evidence was produced, offered, received, and placed before the jury that tried the same tending to prove each and every one of the grounds and allegations of negligence referred to in the quotation from the complaint set forth in the preceding paragraph hereof, except the allegation that the city of Tacoma, defendant in said action, negligently permitted its secondary circuit to become overcharged with electricity to such an extent as to become dangerous to human life, and thereupon, on the trial of the said cause, the judge who tried the same instructed the jury that the plaintiffs therein had produced no evidence tending to show negligence of the defendant therein in causing the secondary circuit to become so overcharged and instructed the jury that they could not find the said defendant negligent in that respect.

'(4) That the issues hereinbefore referred to as to whether said defendant the city of Tacoma was negligent in any or all of the other matters set forth in that part of the complaint in said action which is quoted in the foregoing paragraph were litigated and submitted to the jury for determination under instructions given by the court with reference to each and every one of the said matters, and thereupon the same were determined by the said jury, by a general verdict in favor of the plaintiffs in said action, and against the said city of Tacoma, for the sum of $27,000. That thereafter a judgment was rendered on the said verdict, after the remission of part thereof by the plaintiffs in said action, and the said defendant, city of Tacoma, appealed from the said judgment to the Supreme Court of the state of Washington, and upon the hearing of the said appeal, on its merits, it was adjudged by the said court that sufficient evidence had been introduced at the trial of the said cause before the jury to submit to it the question whether the said defendant city of Tacoma was negligent in the matters and things charged as negligence and set forth in that part of the complaint in the said action which has been heretofore quoted in this affirmative defense. That thereafter a final judgment was rendered by the superior court of the state of Washington in said action, in accordance with the order and direction of the Supreme Court for the sum of $12,000, and this is the judgment which is referred to in plaintiff's complaint in this action.

'And for a further answer to plaintiff's complaint, and as a second affirmative defense thereto, defendant alleges:

'(1) That prior to the death of John Ohrstrom this defendant had no knowledge or notice that the wires of the secondary system of the city of Tacoma, which supplied the electricity for lighting the Younglove Grocery Company, were in contact with the wires of the primary system supplying

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