Hooton v. City of Burley

• Decision Date: 23 May 1950
• Docket Number: No. 7553,7553
• Citation: 70 Idaho 369,219 P.2d 651
• Parties: HOOTON et al. v. CITY OF BURLEY.
• Court: Idaho Supreme Court

Page 651

219 P.2d 651

70 Idaho 369

HOOTON et al. v. CITY OF BURLEY.

No. 7553.

Supreme Court of Idaho.

May 23, 1950.

As Corrected on Denial of Rehearing June 23, 1950.

O. R. Baum, Pocatello, S. T. Lowe and Norman Nielson, Burley, for appellant.

B. W. Davis and L. F. Racine, Jr., Pocatello, for respondents.

KEETON, Justice.

Rex Bates Hooton, 34 years of age, husband of Velma S. Hooton, and father of Allan S. Hooton, and other minors above mentioned, was electrocuted by coming in contact with an electric transmission line on December 14, 1947. His widow and minor children prosecute this action for damages claiming that the death of the husband and father was caused by the negligence of the defendant (appellant).

Appellant will be referred to as defendant and respondents will be referred to as plaintiffs.

The cause was tried before a jury and it returned a verdict in favor of the plaintiffs for the sum of $40,000. The defendant moved for judgment notwithstanding the verdict and for a new trial, both of which motions were by the court overruled and judgment entered on the verdict. The defendant has appealed from the judgment and from the order overruling the motion for a new trial.

The pertinent facts are: Defendant is a municipal corporation and in its capacity as such is engaged in the transmission and furnishing of electrical energy for commercial purposes. Within its corporate limits owned and operated by the city is a street lighting system which carries 2300 volts of electricity. This street lighting system is separate and distinct from the one furnishing electrical energy to residences and business houses. The poles and wires carrying the electric energy are placed along the alleys.

Deceased and a Mr. Aldrich were employed to remove some trees from the premises of a man named Carson, and it became necessary that the feeder wires to a street light be removed to prevent the trees from falling across them.

At the request of Carson, the city employees disconnected two lead wires from the pole on the west side of Normal Avenue, and coiled them up and hung the same in a small tree near the boundary line of an alley. The bottom of the wire coils was about two feet from the ground. At the time the wires were thus disconnected from the street lighting system, they were not energized.

At about 5:15 p. m. the automatic time clock turned the current into the street lighting system and energized the electric wires, and the wires that were coiled and hung near the alley began to flash and sparkle. At this time the employer Carson and the deceased and his partner Aldrich were approximately 125 to 150 feet from the energized wires. Noticing that the wires were flashing and emitting sparks, and making a crackling noise, and appeared to be on fire, deceased walked down the alley toward the wires, and after he had gone about 25 feet Aldrich called to him to leave the wires alone, that it was the city's duty to take care of them. The attention of Aldrich and Carson was then directed toward the arrival of an automobile and when they next looked, the deceased Hooton was near one of the coils of wire with his left hand raised or extended. No one saw the deceased touch the wires. Deceased fell back to the ground with one of the coils of wire across his body. This coil of wire was removed and an attempt to resuscitate him failed. The electric current in the street lighting system was then turned off. Thereafter, this suit was brought and damages awarded as above stated.

Negligence of the city was sufficiently proved and also admitted by the defendant and will not be discussed.

The defendant contends that the deceased was guilty of contributory negligence as a matter of law and such contributory negligence was the proximate cause of his death, for which reason judgment notwithstanding the verdict should have been entered. Defendant asserts that the deceased was present and saw the wires were energized at a time immediately preceding his coming in contact with them; that he saw and was told that the wires were on fire and that the city should be notified; at that time deceased was approximately 125 feet away from the energized wires; that notwithstanding these facts, he deliberately, knowingly and intentionally and not accidentally walked to and came in contact with the live wires; and if he had exercised reasonable care, he could have discovered the danger and avoided it; that even though it were proved and admitted that the city was negligent, nevertheless the plaintiff could not recover.

Defendant further contends that there is only one conclusion to be drawn from the evidence which establishes contributory negligence as a matter of law; that the deceased voluntarily placed himself in a position of peril, which he must have appreciated and comprehended; and that the evidence is such that reasonabel minds could not differ as to the conclusion to be drawn therefrom.

It is a general rule of law that when one knows of a danger brought about by the negligence of another, and understands and appreciates the risk therefrom and voluntarily exposes himself to such danger, he is precluded from recovering for resulting injuries.

Further, where one claiming damages for personal injuries contributes to the injury by want of ordinary care by placing himself in a dangerous position where he might be injured, and does not exercise ordinary care in preventing injury to himself after being placed in such position, then the mere fact that another was negligent would not relieve the one injured from the effects of his contributory negligence; and if the person injured could have avoided such consequences by the exercise of reasonable care and prudence, then no recovery can be had. Rippetoe v. Freely, 20 Idaho 619, 119 P. 465; Bryant v. Hill, 45 Idaho 662, 264 P. 869; Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155, 29 N.E. 464, 31 Am.St.Rep. 537.

The plaintiffs in this case may recover for decedent's death only if he, if living, could have recovered for his injuries.

However, an injured person's knowledge of the physical characteristics of the offending instrumentality or condition does not of itself constitute contributory negligence. It is the appreciation of, or the opportunity to appreciate the peril in an instrumentality or condition, rather than the knowledge of the physical characteristics that bars a plaintiff from recovery for negligence. 38 Am.Jur. 864, Sec. 188; Splinter v. City of Nampa, 70 Idaho ----, 215 P.2d 999, at page 1004.

The wires had been disconnected from one street light (voltage of which is not by the transcript shown) and there is nothing in the record to show that deceased knew that this street light was on a circuit that carried a current of 2300 volts.

The tree, or bush, to which the disconnected wires were attached, was itself a conductor of electricity; the ground was damp; the decedent's head and other parts of his body, as well as his hand, were burned by the electric current. Through exact medium the electric current first entered his body is impossible to say. The wires carrying the current were insulated. The deceased at the time of the injury wore a pair of canvas gloves. It was for the jury to consider and determine under all the facts whether a reasonably prudent person might justifiably believe that a properly insulated electric wire should not, or would not, jump the insulation and do damage to a person coming in contact with it.

Also, damp ground, or water, may, under some conditions, be a conductor of electricity. The short circuit in the case at bar may have entered the ground or contacted with one of the bushes, or the tree, and without any contact with the wire itself may have first electrically shocked the decedent.

Under these circumstances, would the decedent have reason to know or believe, or would a reasonably prudent person know or believe that contact with the insulated wire or other electrical conductor would cause sufficient current to enter his body to injure or kill him, and did he at the time of the injury act in a reasonably prudent manner?

It is unreasonable to suppose that a person would deliberately place himself in a position of danger if such danger were known or should have been known, and the generally accepted theory that one's natural instinct is to preserve and protect himself from injury whenever possible would preclude the idea that the defendant either knew, or should have known, or appreciated the danger to which he was exposed.

In an action for damages for a wrongful death, the presumption which arises in favor of the instincts of self-preservation and the known disposition of men to avoid injury or personal harm to themselves constitutes a prima facie inference that the person killed was at the time in the exercise of ordinary care and was himself free from contributory negligence, and the law presumes unless the contrary is shown, that such deceased person exercised the measure of care which it was his duty to exercise. Adams v. Bunker Hill & Sullivan Mining Co., 12 Idaho 637, 89 P. 624, 11 L.R.A.,N.S., 844; Geist v. Moore, 58 Idaho 149, 70 P.2d 403.

This presumption which arises in favor of self-preservation and the known disposition of men to avoid injury is rebuttable. Geist v. Moore, 58 Idaho 159, 70 P.2d 403.

Contributory negligence is a matter of defense, and the burden of proving such is on the party pleading such defense. Sec. 5-816, I.C.; Knauf v. Dover Lbr. Co. 20 Idaho 773, 120 P. 157; Burns v. Getty, 53 Idaho 347, 24 P.2d 31; Madron v. McCoy, 63 Idaho 703, 126 P.2d 566.

Negligence, or contributory negligence, and the proximate cause of the death or injury, are questions of fact and unless the proof is such that reasonable minds could not differ, the question of negligence or contributory negligence is one for the jury. Eaton v. City of Weiser, 12 Idaho 544, 86 P. 541, 118 Am.St.Rep. 225; Staab v. Rocky M. B. Tel....