Martin v. Pacific Gas & Elec. Co.

• Decision Date: 01 June 1962
• Citation: 204 Cal.App.2d 316,22 Cal.Rptr. 291
• Court: California Court of Appeals Court of Appeals
• Parties: Lorene MARTIN, Joyce Estey, Mary Frances Martin, a minor, and Shirley Ann Martin, a minor, by Lorene Martin, their Guardian ad Litem; Leola Martin, Frances Noland and Thelma Ragan, Plaintiffs and Appellants, v. PACIFIC GAS AND ELECTRIC COMPANY, a corporation, Defendant and Respondent. Civ. 10019.

Page 291

22 Cal.Rptr. 291

204 Cal.App.2d 316

Lorene MARTIN, Joyce Estey, Mary Frances Martin, a minor, and Shirley Ann Martin, a minor, by Lorene Martin, their Guardian ad Litem; Leola Martin, Frances Noland and Thelma Ragan, Plaintiffs and Appellants, v. PACIFIC GAS AND ELECTRIC COMPANY, a corporation, Defendant and Respondent.

Civ. 10019.

District Court of Appeal, Third District, California.

June 1, 1962.

Hearing Denied July 25, 1962.

Boccardo, Blum, Lull, Niland & Teerlink, San Jose, and Bruce Werlhof, Red Bluff, for appellants.

Richard H. Peterson, R. A. Raftery, Noel Kelly, San Francisco; and Robert C. Schiffner, Nevada City, for respondent.

PIERCE, Justice.

This is an appeal from a judgment entered on a jury verdict for defendant in a wrongful death action. Two deaths are involved and there are two separate groups of plaintiffs-appellants.

One group is the heirs of Luster Martin, deceased (hereinafter called Martin, Jr.); the other, the heirs of Timothy Martin, deceased (Martin, Sr.). On May 17, 1958, Martin, Jr., was rearranging a television antenna installed on the ridge of the home of his father located in a wooded area of Nevada County, near the City of Grass Valley. While so engaged a guy wire suspended from the top of the antenna pole, the lower end of which Martin, Jr., was apparently carrying in an attempt to secure it to some object affixed to the ground, came in contact with one of the wire-conductors of a high tension (12,000 volt) power line maintained by respondent. There were no witnesses to the accident, but Martin, Jr.'s sister (Mrs. Noland) was nearby and, hearing a 'terrific pop,' rushed around the house to find her brother lying on the ground. She was thrown back by an electric charge when she attempted to reach him and accordingly tried to restrain Martin, Sr., when he rushed to the scene. He threw her aside, however, grabbing the smoking guy wire from his son's body and was electrocuted. The antenna guy wire had become welded to one of the lower wires of the overhead line upon contact and had charged it with electricity. After the accident Martin, Sr.'s body was on the ground, on or near a path some twenty feet southeast of the south corner of the house and his son was approximately ten feet farther away--as evidenced by the burned areas of grass found where the two men were lying respectively and shown on a diagram. (Plaintiffs' Exhibit No. 3.) Martin, Sr., had let loose of the guy wire as he fell to the ground and it was noted, still charged, about a foot or 14 inches to the east of his body in a bush. Martin, Sr., was killed instantly. Martin, Jr., was removed to a hospital where he died nine days after the accident of toxemia due to third degree burns. A further statement of the facts will become involved in discussion of the points raised on appeal.

Appellants make no direct challenge to the sufficiency of the evidence. Five points are raised on appeal.

1. Re The Contention That the Trial Court's Instructions on the Issue of Liability Were Argumentative and Favored Respondent.

The first contention is that a number of instructions given by the court on the issue of liability were 'worded in a negative and highly argumentative form.' (It is not pointed out that any of these instructions misstate the law.) It is unnecessary to restate at length all of the instructions to which exception is taken. We find none of them argumentative. Instructions, necessarily negative in form, if taken from context, frequently seem to overstate the position of one party to the prejudice of the other. When read in context, however, the apparent overemphasis fades. That is the case here. For example, the first instruction objected to relates to General Order No. 95 of the California Public Unilities Commission regulating the minimum requirements for high tension lines and states that the order does not require insulation of wires. This instruction, however, was preceded by instructions given by the court which stated affirmatively what the regulation in question does require. The judge, moreover, gave an instruction requested by plaintiffs that the provisions of the General Order were not intended as complete provisions for high voltage conductors, but that such conductors should be built and kept according to accepted good practice for general local conditions under all the circumstances.

Next appellants object to an instruction which stated correctly that power line utilities are not required to anticipate at their peril every possible situation in which persons may injuriously or fatally contact their wires and were not insurers; that they were not required to insulate wires if such wires were placed at a distance above property where their current would not interfere with normal and proper uses of the property. They also object to two instructions which they ungently stigmatize as 'perniciously argumentative.' These instructions declare that "Courts will not prescribe standards in respect of such matters' [in the selection of facilities, equipment and appliances] and questions of engineering standards could be determined for the defendant itself through those who were expert and experienced in the field' (so long as ordinary care be used)--that negligence cannot be found merely because untested, unproved and speculative experiments are not used; that the mere fact that an electrical transmission business is accompanied by hazards does not in and of itself show negligence and that if the defendant exercised ordinary care in the operations in question and was not negligent it was not liable. The jury was also given instructions (at the request of plaintiffs), however, which we believe accurately and fully informed the jury affirmatively regarding the duties and obligations of the respondent as a power company maintaining and operating a high voltage line. These instructions will be considered in connection with a point raised by appellants and discussed hereinafter.

One questioned instruction, after sufficiently instructing the jury that it must find both negligence and proximate cause, goes on to add, 'in other words, even if you find that Pacific Gas and Electric Company was negligent in some way, you still may not render a verdict against the company unless you also find that the negligence of the company proximately caused the accident here.' The added portion of this instruction was repetitive, unnecessary, and properly subject to the criticism of overemphasizing defendant's position. A too frequent repetition by the judge of instances in which a defendant is not liable (or in which a plaintiff is entitled to recover) is likely to indicate to the jury that judicial favoritism is being expressed. Happily, submission by counsel of these 'formula' instructions, prevalent in an earlier generation, is being discouraged. (BAJI, p. 18.) The pace and magnitude of jury trials require that trial judges rely more and more upon instructions submitted by counsel, who from their longer and closer familiarity with the legal issues of the particular case are peculiarly in a position to aid proper jury instruction, if in so doing they are mindful that the attorney's obligation in submitting instructions is to subordinate his role as advocate to his obligations as an officer of the court.

Final responsibility, of course, must remain in the trial judge to refrain from giving instructions which are 'slanted.' On the other hand, it must be recognized that statements of abstract principles of law will frequently be unintelligible to a jury unless related to facts in evidence as such facts apply to one party or the other and such party's rights and liabilities. Considerable latitude must be given; too critical analysis should not be made or too rigid rules asserted at the appellate court level, to interfere with an honest effort by trial judges to give meaning by illustration to their charges to the jury.

With this in mind we hold that the instructions objected to were certainly not 'perniciously argumentative.' We cannot say that they overemphasized respondent's position to any point of impropriety. (In fact a reading of the instructions as a whole shows a conscientious effort by the learned trial judge to be fair and impartial.) With the one exception noted, we do not disapprove of any of the instructions complained of under this category.

An adjunct of the first point made by appellants on appeal is their objection to the refusal of the court to give their proposed instruction declaring that a power 'company must use the highest degree of care.' They concede that the applicable standard of conduct of a defendant power company is exercise of ordinary care. (McCormick v. Great Western Power Co., 214 Cal. 658, 663-664, 8 P.2d 145, 81 A.L.R. 678.) But they argue that 'the quantum of care required of an electric power company is greater than that required of the ordinary defendant, and the jury should have been specifically instructed on this rule.'

The latest expression by the California Supreme Court of the rule for which appellants contend is in Borenkraut v. Whitten, 56 Cal.2d 538, 15 Cal.Rptr. 635, 364 P.2d 467, where the alleged negligence was a service station operator's conduct while using gasoline under circumstances where it was likely to ignite. Plaintiff requested an instruction to the effect that because of the great danger involved in pouring gasoline in an open carburetor a person in ordinary prudence will (and it is his duty to) exercise extreme caution when engaged in such an activity. The court (per Mr. Justice Peters) held that it was prejudicial error to refuse this instruction.

Here, however, the court did instruct the jury inter alia (on the subject under discussion):

'Inasmuch as the amount of caution used by the ordinarily prudent person varies in direct proportion to the danger known to be involved in his undertaking, it follows that in the exercise of ordinary care,...