Johnson v. Grays Harbor R. & Light Co.

• Decision Date: 03 March 1927
• Docket Number: 20364.
• Citation: 142 Wash. 520,253 P. 819
• Court: Washington Supreme Court
• Parties: JOHNSON v. GRAYS HARBOR R. & LIGHT CO.

253 P. 819

142 Wash. 520

JOHNSON v. GRAYS HARBOR R. & LIGHT CO.

No. 20364.

Supreme Court of Washington

March 3, 1927

Department 2.

Appeal from Superior Court, Grays Harbor County; Campbell, Judge.

Action by Charles W. Johnson, administrator of the estate of Gustave Quarnstrom, deceased, against the Grays Harbor Railroad &amp Light Company. Judgment for defendant, and order denying plaintiff's motion for judgment notwithstanding the verdict and for a new trial, and plaintiff appeals. Affirmed.

John J Monahan, of Tacoma, and Charles W. Johnson, of Seattle, for appellant.

Theodore B. Bruener, of Aberdeen, for respondent.

ASKREN J.

Late Christmas Eve and early Christmas morning of 1923 there was a severe storm along the North Pacific Coast. In the city of Aberdeen, Wash., it reached unusual severity being greater in its destruction than any in years, not excluding the storm in 1921 that leveled great areas of state timber in the Olympic Peninsula.

Between midnight and 4 o'clock in the morning plate glass windows in many stores were broken out, windows smashed in homes chimneys demolished, signs destroyed, telephone wires put out of commission, and power wires broken and service materially interfered with.

One of the vessels lying in the harbor was the Siskiyou, on which one Gustave Quarnstrom was second mate. He left the steamer about 5:30 Christmas Eve to go to the business portion of the city. Between 5 and 6 the following morning he was found lying in one of the public streets in Aberdeen, his body partly in water, with a live electric power wire belonging to the defendant corporation touching his foot. Life was extinct. When he met his death no one knows, but it is established that death was caused by contact with the electric wire.

Plaintiff was appointed administrator and commenced suit against the defendant company for Quarnstrom's death, alleging negligence in the placing and maintenance of its power line, which came to the ground and which Quarnstrom came in contact with. The answer was a general denial, coupled with an affirmative defense of contributory negligence.

The cause came on regularly for trial, and the jury returned a verdict for the defendant. Plaintiff's motion for judgment not withstanding the verdict and for a new trial being denied, this appeal followed.

It is first urged that the court erred in overruling the motion for a directed verdict, and likewise the motion for judgment notwithstanding the verdict. This assignment seems to be predicated upon the fact that appellant does not believe respondent met the burden of showing that there was no negligence upon its part. It is conceded that, when appellant's evidence showed that the death resulted from contact with a live wire which had a loose end lying in a public street, a prima facie case was made, and that respondent must then assume the burden of showing that the result was not caused by its own negligence. The jury having found by its verdict that the respondent met the burden, our only inquiry, then, is whether there was evidence from which the jury could rightly make such a finding. An examination of the evidence discloses that the respondent met the burden by evidence almost conclusive in its character. The testimony showed that its plant and system were in proper condition; that the cause of the wire falling to the street was the unusual severity of the storm which whipped the wires together, causing them to arc and flame, burning through the weatherproofing and melting the copper wire itself; that the respondent's general manager and all employees that could be summoned were on duty from the time a realization came to them of the destructiveness of the storm, and they endeavored in every way to properly safeguard and protect individuals and property; that the storm was the most severe in the history of the city; and that in the region covered by the Weather Bureau at Seattle the records showed the highest wind velocity since the establishment of the United States Weather Bureau there in 1892. We need not detail the evidence further. It was so complete that if the verdict had been contrary it would have been against the weight of the evidence, and the trial court would have, no doubt, granted a new trial.

The next question urged is that the court erred in permitting the respondent, under its general denial, to offer evidence showing that the breaking or burning of the wire was caused by the storm--an agency over which it had no control--and which, if true, exonerated it from the charge of negligence. It is said that:

'An act of God is a defense which must be pleaded.'

A very interesting argument is presented by both sides upon this question, but we deem it unnecessary to decide that point here, as we are convinced that respondent's claim that appellant is not in a position to urge this point is well taken. On January 19, 1926, pursuant to a stipulation, counsel for both sides being present, the deposition of one B. M. Summers, meteorologist in charge of the United States Weather Bureau at Seattle was taken. The entire matter covered in the deposition referred to the storm in question, and great stress was laid therein concerning the point as to whether the storm was an unusual one and not of the kind to be expected. On the same day a stipulation was signed for the introduction in evidence of a certified copy of the report of the Weather Bureau located at North Head, Wash., showing the velocity and extent of the wind during the storm. When appellant's attorney made his opening statement to the jury, he referred to this issue in the following manner:

'That night there came up a severe storm. Some of you jurors probably remember it, and possibly all of you. But that storm raged its severest about 4 o'clock in the morning. Quarnstrom was killed about 1:10 or 1:15 in the early morning. You might say 1:15 at night. It was 1:15 a. m. At that time the storm was not one of unusual severity, and not one that could not have been anticipated. The power company's wire was down then, and the storm was raging, of course. Mr. Quarnstrom at the time of his death was a married man. * * * The power company in this case did not use ordinary care. The wires were loose, and in

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