Dunn v. Pacific Gas & Elec. Co.

• Decision Date: 20 July 1954
• Citation: 272 P.2d 745,43 Cal.2d 265
• Court: California Supreme Court
• Parties: DUNN v. PACIFIC GAS & ELEC. CO. S. F. 18975.

Page 745

272 P.2d 745

43 Cal.2d 265

DUNN v. PACIFIC GAS & ELEC. CO.

S. F. 18975.

Supreme Court of California, In Bank.

July 20, 1954.

Rehearing Denied Aug. 19, 1954.

William B. Mead, Oakland, and Cyril Viadro, San Francisco, for appellant.

Robert H. Geres, San Francisco, Carlson, Collins, Gordon & Bold, John Ormasa and Robert Collins, Richmond, for respondent.

SCHAUER, Justice.

In this wrongful death action, plaintiff administratrix appeals from an order and judgment of nonsuit. The decedent met his death by electrocution when the elevated bed of a dump truck came into contract with one of defendant's high tension wires. For the reasons hereinafter elucidated we have concluded that the issues involved should have gone to the jury, and, hence, that the judgment should be reversed.

Preliminarily, it is noted that plaintiff has filed two separate notices of appeal, one from the written 'Judgment of Non-suit' entered November 28, 1951, and the other from an order granting 'motions for a judgment of non-suit' which was not entered in the court's permanent minutes until April 15, 1952. Since such order was not entered until subsequent to the entry of the written judgment the order is wholly ineffective and the purported appeal therefrom will be dismissed.

When respect to the merits of the appeal, it is to be recalled that a nonsuit may be granted only when, disregarding conflicting evidence, giving to plaintiff's evidence all the value to which it is legally entitled and indulging in every legitimate inference which may be drawn from that evidence favorable to plaintiff's case, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff. (Raber v. Tumin (1951), 36 Cal.2d 654, 656, 226 P.2d 574; see also Sokolow v. City of Hope (1953), 41 Cal.2d 668, 670, 262 P.2d 841.)

From the evidence, viewed in the light most favorable to plaintiff, it appears that the decedent, Austin Dunn, was employed as a bulldozer operator by the East Bay Regional Park District. During the work week beginning Monday, June 20, 1949, the district commenced to fill and level a portion of its Tilden Park property in Contra Costa County as a preliminary in construction of a golf driving range and parking area. The fill material, consisting of dirt and rocks, was hauled to the area by employes and trucks of defendant Freethy, ¹ a contractor who was doing other construction work nearby and who needed a place to dump such materials. Since as stated by plaintiff, the district 'apparently needed what he had to dump, it had previously authorized him to do so.' Dunn's job was to spread the dirt and rocks with a bulldozer. The district's golf course superintendent Collins, was in charge of the construction, but when he was busy elsewhere Dunn would tell the truck drivers where to dump.

Defendant, pursuant to an easement granted to it by the park district, owned and maintained three uninsulated high tension (12,500 volts of electricity) wires, which extended in a north-south direction over a portion of the contemplated improvement. By Wednesday morning, June 22, the filling, leveling and grading of the area underneath the wires had been completed, with a resultant raising of the ground level and reducing of the clearance at that point by approximately 6 feet, leaving the distance between the wires and the ground at 12 feet 6 inches. Collins instructed the truck drivers not to dump anything more in that particular area and told Dunn not to push anything there. Thereafter 'all the work was being done to the west or to the east of the wires.' Up to this time defendant had neither notice nor knowledge that the clearance of its wires had been impaired. On Thursday morning, June 23, a crew of defendant's workmen went to the area to install a transformer. The foreman of the crew saw loaded trucks proceeding under the high voltage wires and that the reduced clearance caused by the fill created a dangerous situation. He spoke with Collins concerning the danger of the impaired clearance and the high voltage, and Collins immediately started stopping the truck drivers and telling them that the wires were hot and to stay out from under them. Hickman was one of the truck drivers he warned. Plaintiff's decedent, Dunn, was present and Collins warned him at the same time, as well as 'several' other times, 'every time I was around him' both on Thursday and Friday. Both Hickman and Dunn stated that they would avoid the wires. Upon inquiry from Collins, defendant's foreman stated his company would have to put in a higher pole.

That afternoon (Thursday) Rucker, a supervisor of defendant's pole and transmission line department, who had received a report of the dangerous condition, went to the area. He saw trucks passing under the wires. He spoke with Dunn, and 'cautioned him about the proximity of the wires and warned him that they were twelve thousand volts and that there should be no more dumping there,' and that neither trucks nor Dunn's bulldozer should go under the wires. Dunn said he had already been warned by another of defendant's men 'previously that day.' Rucker then located Tom Flood, chief aide to the district manager of the park district, who 'seemed to be very pleased that I had showed up, because he said that morning he had noticed the fill was getting close to the line and intended to call us, but he hadn't done so.' Rucker and Flood looked the area over together and Rucker told Flood 'there shouldn't be any more dumping within ten feet of the line, and he agreed that that would be the case, and called Mr. Dunn (decedent) over, and in my presence instructed him not to permit any more dumping within ten feet of the line. At that time I again cautioned Mr. Dunn as to the voltage of the line * * *.' Dunn and Flood both stated 'no more dumping would be permitted in the area where there was impaired clearance * * * and no closer than ten feet on either side of these wires.' Rucker also told Flood 'I would have an estimator out to see him the next morning about installing a pole at the edge of the fill.' Flood testified that he had realized, prior to the discussion with Rucker, that the wires were low, of high voltage, and a danger to life, and had 'cautioned the trucks to stay out from under it. * * * Mr. Dunn and I had discussed it, because we knew that the pole had to be put in there before the job was complete * * * (W)e discussed the fact that we wouldn't shouldn't put any more fill in there; the wire was too low.' On Wednesday Flood had told Dunn not to operate tractors under the wires and not to permit the trucks to go under them. Flood had intended to notify defendant of the dangerous condition but had not done so. He testified that he told Rucker that no trucks would go under the wires. Rucker returned to his office, reported the condition to his supervisor, and asked him to arrange to have an estimator meet Flood on Friday morning. Friday morning Collins again told both Dunn and the truck drivers to stay out from under the wires and not to dump or push anything in there.

About one o'clock Friday afternoon Adams, and employe of the district, drove Dunn in a trash truck from the park clubhouse toward the parking area. Dunn got off the truck on the road leading into that area, and when last seen by Adams, Dunn was sone 700 to 800 feet from the wires and walking in their general direction. As Adams continued on to the driving range shack he saw a dump truck coming into the area. Adams went into the shack and talked a couple of minutes with the carpenter. The two men then walked outside and saw both Dunn and Hickman lying on the ground near the dump truck, which was under the high tension wires. The bed of the truck was elevated and touched one of the wires. Dunn moved his arms, hitting a wheel of the truck, and 'there was a big flash.' Hickman, who was lying face down under and parallel to the truck's fender, was also moving, and there was a flash every time his back and shoulders touched the running board. As Hickman moved he touched Dunn, and both men were electrocuted. The same afternoon, 'shortly after' the accident, defendant's crew arrived and commenced installation of a pole to raise the wires. There were no other eyewitnesses to the occurrence.

In support of the nonsuit, defendant urges, first, that the evidence shows as a matter of law that it breached no duty of care owing to the decedent, Dunn, and therefore was guilty of no negligence toward him. It also contends that as a matter of law the evidence establishes both contributory negligence by Dunn, and that the sole proximate cause of Dunn's death was the intervening act of Hickman in raising the truck bed so that it touched one of the wires.

Plaintiff, contending that the case should have gone to the jury on each of these points, argues that under rules set forth in General Order 95 of the Public Utilities Commission defendant was required to maintain the wires at a minimum clearance of 22 feet, that such rules established a standard of care which defendant had violated by maintaining a clearance of only 18 feet 6 inches even before the filling work here involved, and that plaintiff was entitled to have a jury determine whether such violation constituted negligence towards the decedent, Dunn. Rule 37 of General Order 95 establishes a basic minimum clearance of 25 feet above the ground along thoroughfares in rural districts or across other areas capable of being traversed by vehicles or agricultural equipment. Subparagraph (a) of Rule 54.4-A(2) permits reduction of the clearance to 22 feet in rural districts, 'for conductors crossing or overhanging traversable portions of public or private roads or driveways.' Subparagraph (b) of the same rule states that in rural districts the clearance may be reduced to 18 feet 'for lines across areas capable of being traversed by agricultural equipment and along...