Keilhamer v. West Coast Telephone Co.

• Decision Date: 24 October 1941
• Docket Number: 28034.
• Citation: 11 Wn.2d 24,118 P.2d 173
• Court: Washington Supreme Court
• Parties: KEILHAMER et al. v. WEST COAST TELEPHONE CO.

118 P.2d 173

11 Wn.2d 24

KEILHAMER et al. v. WEST COAST TELEPHONE CO.

No. 28034.

Supreme Court of Washington

October 24, 1941

Department 1.

Personal injury action by Mary E. Keilhamer and husband against the West Coast Telephone Company. From an adverse judgment defendant appeals.

Affirmed.

Appeal from Superior Court, Skagit County; Edwin E Gruber (deceased) and Ralph O. Olson, Judges.

Henderson & McBee, of Mount Vernon, for appellant.

James G. Smith, Boynton Kamb, and Welts & Welts, all of Mount Vernon, for respondents.

DRIVER Justice.

Mary E Keilhamer and her husband brought this action to recover for personal injuries which they alleged she sustained from a telephone receiver 'through the defendant negligently causing or negligently permitting a severe shock, electric impulse or tremendous vibration to come into her ear, head and body * * *.' A trial Before a jury resulted in a verdict for the plaintiffs. Timely motions by the defendant for a directed verdict and for judgment notwithstanding the verdict were severally denied. Defendant also moved for a new trial, but, when the motion came on for hearing, it was expressly waived by defendant's counsel. From a judgment entered on the verdict, defendant has taken this appeal. For convenience, we shall hereinafter refer to Mary E. Keilhamer as if she were the only respondent.

Appellant's assignments of error present two questions: (1) Was the evidence sufficient to sustain the verdict, and (2) were the trial court's instructions to the jury prejudicially erroneous? Only so much of the evidence as is necessary to a determination of these questions will be stated.

For nine years prior to her accident, the respondent had operated a beauty parlor in Anacortes, personally participating 'in all branches' of the work. At the time of the accident, she was forty-one years of age, in good health and able to work from six to twelve hours a day. She was a subscriber to appellant's telephone service, and had a telephone in her shop.

On the morning of September 9, 1937, after she had shampooed a customer's hair and while she was preparing it for further treatment, the telephone bell rang. The instrument was near at hand and she leaned against her shampoo tray and lifted the receiver to her ear. As to what happened then, we quote directly from the record of her testimony:

'I was phoning, I was talking to my party on the other end, which was Mrs. Becktell, between two and three minutes, when all at once a terrific shock came through and an awful noise, it nearly blowed my head off. What happened then I couldn't tell you, but I do remember that I tried to call the chief operator and I couldn't tell her exactly what happened.

'Q. Why not? A. Because I don't know what happened to me, I don't remember.

'Q. Could you talk? A. No, I couldn't. I tried to tell her, but my voice gave out. I don't know what happened from there on. * * * At the time my face felt just like it was dead. I had no feeling in it, and it gradually got worse, and my tongue felt like it was swelling, so did my face. I couldn't speak until that numbness subsided a little bit and it got a little better, but I had been in bed a great deal of the time.'

She stated, too, that the shock affected the right side of her face and neck, her right hand and leg, and her spine, causing pain and numbness in the affected parts; that, by virtue of the experience, she became virtually a physical and nervous wreck; that, up to the time of the trial, which was about two years after the accident, she had been unable to continue her beauty parlor work; and that her injury caused her to lose 'pretty close to twenty pounds.' A physician who had treated respondent during September, October, and November of 1937, stated:

'Q. Did you examine her? A. I did.

'Q. What condition did you find the woman in when she first came to you? A. She was in a very highly nervous state and she complained a lot of this pain. She had at that time lost weight, as I remember, and she complained that she could not sleep on account of the pain and she could not concentrate or do her work on account of this pain.

'Q. Over how many months did you treat her? A. Over a period of three months. * * *

'Q. In light of the examinations that you made of her, and the observations you made of her and the history of injury she gave you, in your judgment did this woman suffer an electrical shock? A. Yes, I considered that she had.' (Italics ours.)

Another physician who 'made a thorough physical examination' of respondent in March, 1939, testified as follows:

'Q. What did you find with reference to feeling, or lack of feeling, in the right side of the face, arm and leg, than on the other side? A. They were diminished on the right side. That is, she had practically none on the right side of the face.

'Q. She had practically no feeling on the right side of the face what about her side and leg on the right side? A. There were areas that she would have some sensation in, and there were areas where she did not.

'Q. What about the arm? A. The same was true of the arm.

'Q. Doctor, from the history she gave you and the examination you made, have you arrived at a conclusion as to what produced this condition in this woman? A. There is no question in my mind, I think she received an electrical injury.

'Q. What do you mean by an electrical injury? A. A shock, and damage to the nervous system from the electric current.' (Italics ours.)

The customer who was undergoing treatment in the beauty shop at the time of the accident testified that she distinctly heard an 'awful blast' come over the telephone; that the respondent, after calling central and the chief operator and remonstrating with them, 'grabbed her head,' sat down, and started to cry; and that she seemed unable to continue her work and had to be put to bed.

The customer's husband, who was seated in an adjoining room, testified:

'A. Well, I was looking at the paper and all of a sudden I heard a large report. I didn't get up at that time, but a few seconds after that Mr. Keilhamer went in there and the next, Mrs. Harris and he were bringing Mrs. Keilhamer into the bedroom through the living room.

'Q. Can you describe this loud report, what were you doing at the time that it came? A. I was looking at the paper a little bit and talking to Mr. Keilhamer, I had the paper on my lap, I can't just exactly describe that noise except it was a loud sound.

'Q. Loud enough for you to hear it in this other room and attract your attention? A. Yes, sir.

'Q. Did it sound like a ring? A. No, it did not.

'Q. Louder, or softer than a ring? A. Very much louder because I have had the ring happen to me several times; it was an altogether different noise than a ring would be, it wasn't a clacking noise.'

Mr. Keilhamer was in the same adjoining room, but he stated that he did not hear the report. Respondent's beauty parlor assistant also witnessed the accident. She stated that 'there was a loud explosion and I turned around and saw Mrs. Keilhamer drop the receiver back on the hook and put her hand to her head, * * *.'

Respondent called three witnesses who qualified as experts in telephone work and in the installation of electrical and telephone equipment. Their aggregate testimony may be summarized as follows:

There is always danger of excess foreign electricity entering telephone lines, and, to prevent its reaching the instruments and the patrons, devices known as protectors, or lightning arrestors, are customarily employed. Such a device is attached to the subscriber's telephone wire at or within his house or place of business, and its purpose is to carry excess current into the ground Before it can reach the telephone set. In the respondent's beauty parlor building, which each of the three expert witnesses had inspected, there was a standard-type protector, but it was defective and had been improperly installed. There were several sharp, right angle bends or turns in the ground wire, within the space of a few feet, where it passed around some attice rafters. This impaired the efficiency of the device, because high voltage electricity does not readily follow sharp angles or turns in a wire, but is likely to jump the wire and take the most direct route to the ground when it encounters them. Furthermore, the ground wire in respondent's premises was attached to a sewer vent pipe, which is not considered a good ground connection. A water pipe is preferable, but if that is not available, a metal pipe or rod buried at sufficient depth to be in constant contact with moist earth should be employed.

Each of the expert witnesses expressed the opinion that a report or blast loud enough to be heard in an adjoining room, such as the one that came out of the telephone receiver when respondent was using it, indicated the presence on the line and in the instrument of dangerously high voltage foreign electric current; that nothing else could have caused the report; and that such current would not have flowed over the telephone wire and into the receiver had the protector device been properly installed and grounded on respondent's premises.

The appellant adduced testimony to the effect that the electric current normally used in the operation of a telephone system is harmless; that the only possible sources from which excess foreign current could have got on appellant's telephone system in Anacortes on the day of the accident, were lightning and the power lines of a provate power company; and that the weather was clear and without any electrical storm in the vicinity on the day in question, and no wire of the power company was down, or short-circuited, or out of repair.

In considering whether or not the evidence was...