Mendez v. Pacific Gas & Elec. Co.

• Decision Date: 02 January 1953
• Citation: 115 Cal.App.2d 192,251 P.2d 773
• Court: California Court of Appeals Court of Appeals
• Parties: MENDEZ et al. v. PACIFIC GAS & ELECTRIC CO. et al. Civ. 15154.

Page 773

251 P.2d 773

115 Cal.App.2d 192

MENDEZ et al. v. PACIFIC GAS & ELECTRIC CO. et al.

Civ. 15154.

District Court of Appeal, First District, Division 2, California.

Jan. 2, 1953.

Edward E. Craig, Berkeley and H. J. Rodriguez, Oakland, for appellants.

Carlson, Collins, Gordon & Bold and Frederick Bold, Jr., Richmond, for respondents.

JONES, Justice pro tem.

This appeal is from a judgment of nonsuit entered upon the opening statement of plaintiffs' counsel to the jury.

The action is for damages for personal injuries which plaintiff alleges he sustained because the Pacific Gas and Electric Company 'carelessly and negligently managed, maintained and controlled' electric wires from their pole to 4720 Mead Street in the City of Richmond, California. It is alleged by the plaintiff that the insulation on said electric wires was allowed to become deteriorated and put in such a state of disrepair so that when he grasped them the electricity was permitted to course through his body.

At the commencement of the trial plaintiffs' counsel made the following opening statement to the jury:

'Ladies and Gentlemen of the Jury, you heard what the Judge said about the nature and purpose of an opening statement. My evidence will show to you what happened in this case. It's a very simple tale of a boy and a ball and some bare wires and a fall and some injuries; that's what it amounts to.

'My evidence will show that on September 9th, 1949, someone, I don't know whether it was the plaintiff in this case or someone else, knocked a ball on the roof of the house where the plaintiff was living, which is in the Seaport Housing Facilities; that the Pacific Gas and Electric Company delivers electricity to that housing place; that on this particular occasion the plaintiff, this young boy, went up on the roof to retrieve his ball, or the ball that was knocked up there. When he got up there, he grabbed onto some wires, apparently for support. These wires were electric wires, which delivered electricity into this housing unit. The wires had been allowed to become bare; I mean the ordinary insulation which surrounds the wires had become frayed and the wires bare, and as the boy grabbed the wires they came together, and there was a flash, an electric are, which, if you don't know it, the electric are produces ultraviolet rays, the same as the sun. And the burn from an electric arc, whether you're a welder or whether you're a small boy retrieving a ball, or whatever you are, has the same effect upon the system as the sunlight does--prolonged sunlight. It's a momentary flash of rather severe intensity, and it exposes the parts of the person that are exposed to this ultraviolet light which affects the face, the skin, the hands and the eyes. And when this boy got this flash, naturally he let go and he fell to the ground.

'He sustained a few injuries on account of the fall. As a result of the flash he sustained some eye injuries. He was taken to the Permanente Hospital for treatment. He was treated there by a Doctor Smithburn. Doctor Smithburn has about a month ago, we discovered, left the Permanente Hospital and has gone south. We haven't been able to locate him, so there will be no testimony from Doctor Smithburn. We'll have to rely on the testimony of the boy himself and on the testimony of people who have seen him, and his parents, to prove the injuries.

'Later on, some months later, the boy was taken to an eye specialist, in Oakland, for an examination. The examination revealed that the boy had completely recovered from whatever eye injuries he received, so it would be senseless and useless for us to bring in a doctor to tell you that when he examined the boy there were no injuries.

'And we will then show, by the evidence, that after this flash, the Pacific Gas and Electric Company, with their own equipment, came in and repaired the wires; not only on this one occasion, but on a later occasion they came in with their own equipment and repaired the same wires only a few feet away, where another fire had broken out. With that we will submit the case to you.'

At the conclusion of the statement counsel for the defendant company objected to its sufficiency to make out a case against the company, and requested that plaintiffs' counsel make it sufficient by stating that the defendant was under a duty to manage, maintain or control the wires involved which are within the Seaport Housing Project operated by the Federal Government. This, counsel for plaintiffs declined to do and the defendant then asked the court to take judicial notice of a contract for supplying electricity to the Seaport Housing Project between the United States and the Pacific Gas and Electric Company. By the terms of this contract it is provided that, 'The Government shall furnish,...