Heber v. Puget Sound Power & Light Co.

• Decision Date: 22 July 1949
• Docket Number: 30647.
• Court: Washington Supreme Court
• Parties: HEBER v. PUGET SOUND POWER & LIGHT CO.

208 P.2d 886

34 Wn.2d 231

HEBER v. PUGET SOUND POWER & LIGHT CO.

No. 30647.

Supreme Court of Washington

July 22, 1949

Department 2

Rehearing Denied Oct. 31, 1949.

Action by Grace E. Heber, as administratrix of the estate of Harry Heber, deceased, against the Puget Sound Power & Light Company to recover damages for intestate's death as the result of defendant's alleged negligence in maintenance of an electric power line. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

SIMPSON J., dissenting.

SCHWELLENBACH J., dissenting in part.

Appeal from Superior Court, Kittitas County; J. A. Whitfield, judge.

Gordon H. Sweany, George O. Moseley, W. R McKelvy, Seattle, E. K. Brown, Ellensburg, for appellant.

Cashatt & Turner, Spokane, Gene F. Peterson, Ellensburg, for respondent.

ROBINSON Justice.

This action was brought by Grace E. Heber, in her capacity as administratrix of the estate of Harry Heber, deceased, against the Puget Sound Power & Light Company to recover damages for the death of her husband as the result of alleged negligence on the part of the defendant in the manner in which it maintained a part of its electrical distribution system in the city of Ellensburg, Washington. The case was tried Before a jury and resulted in a verdict in favor of the plaintiff. This appeal is from the judgment entered on the verdict.

There is evidence in the record which, if believed by the jury, was sufficient to establish the following facts: The Puget Sound Power & Light Company, as a part of its distribution system of electrical energy in the city of Ellensburg, Washington, maintained a power line along a public street in the city, which ran in an easterly and westerly direction to an alley and thence northerly along such alley. The decedent and his wife were the owners of the adjacent property upon which was located their dwelling house and a chicken house, the latter building being a wooden structure situated in close proximity to the electric line, both in the street and alley. The transmission line consisted of three wires on cross arms attached to poles. The wires were all on one side of the poles and about eighteen inches apart. The two outside wires were weatherproofed, but the middle wire was not covered. The line carried approximately 69,000 volts. The wires had been in use for many years, and some months Before the date of the death of the decedent, they had been transferred to another set of poles. This transfer was made without turning off the current, and thus no substantial inspection was made of their general condition. The wires had considerable sag. There was evidence to the effect that, if wires have too much sag, they tend to sway with the wind. When contact or near contact is made between wires, an arc is formed, and the wires may melt or become pitted and their strength consequently impaired. On three occasions, not long prior to the happening of the accident in question, one of the wires broke and fell to the ground. The appellant did not provide a ground-detecting device as required by statute. Some time during the night of March 12, 1947, or in the early morning of March 13, the uncovered wire broke and fell to the ground. At about 2:30 a. m., a flash was observed by a person who was then about five blocks away.

Mrs. Heber arose early and observed that the electric line was broken, and efforts were made to notify appellant, but without success. Shortly Before 7:00 a. m., fire was observed in close proximity to the chicken house. Mr. Heber threw two buckets of water upon the fire, but it was not extinguished. He then picked up a 2"' X 4"' timber, about six feet long, and attempted to move the broken wire which had come in contact with a wire fence. The wire was emitting sparks and was in active motion. The movements of Mr. Heber were observed by the members of his family. While Mr. Heber was attempting to move the end of the wire with the 2 X 4, he either came in contact with it or in such close proximity to it that an arc was formed causing his death. None of the eye witnesses was able to tell just what happened the moment Before the accident occurred. There was evidence with reference to other relevant facts, but we deem the foregoing a sufficient statement for the purposes of this opinion.

The acts of alleged negligence, which we deem material and which have support in the evidence, are: (1) that the wires were old, badly worn, and of insufficient strength; (2) that, when they were moved to the place where they were strung at the time of the accident, they were not properly inspected and were allowed to sag to such an extent that prevailing winds might cause them to come together and the current arc from one wire to another; and (3) that the appellant did not provide a ground-detecting device in its distributing system, as required by Rem.Rev.Stat. § 5435.

The appellant timely moved the court for a judgment of nonsuit, for a directed verdict, and for judgment notwithstanding the verdict, or, in the alternative, for a new trial. It assigns as error the refusal of the court to grant its respective motions, the giving of certain instructions, and the exclusion of evidence. The further claim is made that the damages awarded were excessive.

In support of its claim of error in the refusal of the court to grant its several motions, the appellant contends that there was a failure of proof of negligence on its part, and that the decedent was guilty of contributory negligence as a matter of law.

The measure of care required by law of those engaged in the business of transmitting electricity, with reference to the construction and maintenance of their lines, is that of reasonable care, that is, such care as a reasonable man would use under the circumstances. The amount of care needed to satisfy this standard necessarily varies, but it must be commensurate with the danger involved. Where the wires installed and maintained by a carrier of electricity convey a strong and powerful current highly dangerous to persons coming near to or in contact with them, the law imposes upon such carrier the duty of exercising the utmost care and prudence, consistent with the practical operation of its plant, to prevent injuries, and this is especially true in populous places because the danger is great and the care exercised must be commensurate with it. These principles of law were recognized and applied in Scott v. Pacific Power & Light Co., 178 Wash. 647, 35 P.2d 749. A very concise statement of the applicable rules appears in 18 Am.Jur. 443, Electricity, § 48.

We find sufficient evidence in the record of actual and statutory negligence to justify the action of the court in submitting the case to the jury and in its denial of the motion for judgment notwithstanding the verdict on this branch of the case.

The appellant contends that the circumstances under which the decedent attempted to move the charged wire, testified to by members of his family, coupled with the existing physical facts, show conclusively, and as a matter of law, that he was guilty of contributory negligence and that such negligence was a proximate cause of his death. The trial judge was of the opinion that the question of contributory negligence was a factual one for the jury to determine. In our consideration of the question presented, we recognize that it is very hazardous for a person to attempt to handle a highly charged electric wire that has broken and fallen to the ground, and that such person is bound to appreciate and foresee that injury to him may occur if he does so. With this thought in mind, we have examined the cases cited by counsel for both parties.

The decisions of the courts in many of the cases seem to turn upon the existence or nonexistence of a combination of two elements: (1) a situation which might prompt a reasonable man to act in order to save endangered property from damage or destruction, and (2) the method or means used in handling the charged wire. If there is evidence that the property of a person is endangered by a fallen charged wire, and that, in making an effort to prevent danger to it or loss thereof, he adopts a method or means which a trier of fact might consider reasonable and proper under the circumstances, then the question of whether such person was negligent is one for the jury to determine. Bricker v. City of Troy, 315 Mo. 353, 287 S.W. 341; Leavenworth Coal Co. v. Ratchford, 5 Kan.App. 150, 48 P. 927; Temple Electric Light Co. v. Halliburton, Tex.Civ.App. 136 S.W. 584, Petition for rehearing denied, 104 Tex. 493, 140 S.W. 426.

In many of the cases where it has been decided that the injured person was guilty of contributory negligence as a matter of law, either one or a combination of the following factors was present: (1) there was nothing to prompt him to enter the zone of danger; (2) the handling of the live wire was by a bare hand, a handkerchief, a pair of metal pliers wrapped with a handkerchief, a napkin, a woolen cap, a gloved hand, and so forth; or (3) some part of the body was placed in such close proximity to the danger that injury was inevitable. Druse v. Pacific Power & Light Co., 86 Wash. 519, 150 P. 1182; Billington v. Eastern Wisconsin Ry. & Light Co., 137 Wis. 416, 119 N.W. 127; McNamee v. Western Union Telegraph Co., 140 A.D. 874, 125 N.Y.S. 622; Groteau v. Twin State Gas & Electric Co.,

79 N.H 515, 112 A. 397; Barnett v. Des Moines Electric Co., 8 Cir., 10 F.2d 111; Capital Gas & Electric Co. v. Davis' Adm'r, 138 Ky. 628, 128 S.W. 1062; Glander v. Milwaukee Electric Ry. & Light Co., 155 Wis. 381, 144 N.W. 972; Menden v. Wisconsin Electric Power Co., 240 Wis. 87, 2 N.W.2d 856; Williams v. Metropolitan Edison Co., 267 Pa. 158, 110 A. 92; City of...