Nevis v. Pacific Gas & Elec. Co.

• Decision Date: 09 November 1954
• Citation: 275 P.2d 761,43 Cal.2d 626
• Court: California Supreme Court
• Parties: Arthur NEVIS, Plaintiff and Respondent, v. PACIFIC GAS AND ELECTRIC COMPANY, a corporation, Defendant and Appellant. S. F. 19039

Page 761

275 P.2d 761

43 Cal.2d 626

Arthur NEVIS, Plaintiff and Respondent, v. PACIFIC GAS AND ELECTRIC COMPANY, a corporation, Defendant and Appellant.

S. F. 19039.

Supreme Court of California

Nov. 9, 1954.

Rehearing Denied Dec. 9, 1954.

Robert H. Gerdes, John J. Briare, San Francisco, John J. Quill, San Carlos, Dana, Bledsoe & Smith and R. S. Cathcart, San Francisco, for appellant.

M. F. Hallmark and William J. Thorburn, Oakland, for respondent.

SCHAUER, Justice.

Defendant appeals from a judgment rendered upon a verdict in plaintiff's favor in his action to recover for personal injuries resulting when a boom on a hay derrick he was operating on ranch land came into contact with defendant's high voltage wires. We have concluded that error in the instructions, complained of by defendant, was invited by it, that its other contentions are untenable, and that the judgment should be affirmed.

From the pleadings and the evidence it appears that the hay derrick was of a type in common use in the area in hay loading, and had been operated by its owner, Fernandez, for some fifteen years. It was mounted upon a carriage fitted with wheels, was drawn about and operated by a jeep, and was equipped with a boom which could be raised and lowered. When in use the boom was raised and held in position by a chain.

On the morning of the accident plaintiff drove this equipment, with the boom in a lowered or horizontal position, to the Amen ranch, where the hay was to be loaded. Just before turning off the public road into the private entrance to the ranch plaintiff saw some wires running from the road to the house--which was about a block distant on the private roadway--but did not know whether they were power or telephone wires. Plaintiff continued some 600 feet on past the house until he came to the haystack; he testified that he did not see the high voltage lines under which, regrettably, the hay had beens stacked, or the power poles or high voltage signs on the poles. Plaintiff placed the derrick in position, raised the boom, and commenced to load hay from the stack onto a waiting truck. When the truck was partially loaded plaintiff got into the jeep and, without lowering the boom, started to pull the derrick into a different position in order to facilitate further loading. The boom in its upright position could swing to the right or to the left but would not go either up or down as the derrick was being moved. When plaintiff started to move the derrick the boom swung into contact with the overhead wire; plaintiff without knowing this stopped the jeep to move some bales of hay that were in his path; when he stepped out he grounded the current through the jeep and his body, was 'knocked out,' and received the injuries here involved. He testified that not until he regained consciousness and looked up from where he was lying on the ground awaiting an ambulance, did he see the wire which the boom had contacted; that even though he had been looking up during the work of loading, his attention had been focused on the workman who was on top of the haystack sticking the 'hooks onto the bale' and on the man who was in the truck taking the hooks off; that he had his 'mind on them all the time' and had to be 'very careful' so they would not be struck and injured by the hooks and bales of hay which 'swing very fast.'

The ranch owner, Amen, testified, but plaintiff denied, that Amen had warned plaintiff of the wires. Plaintiff had worked around high power lines before, but not closer than 25 feet to them, and knew what they looked like, but he had not previously worked on the Amen ranch. He further testified that when 'we move the derrick around' in the open field it is with the boom up, but when moved on the highway the boom is down; when down the boom was about 10 or 11 feet from the ground; the maximum height of the boom when up was 23 feet 2 inches; at the time of the accident the top of the boom was at a height of 20 or 21 feet and contact with the wire took place at a point about 9 inches from the top.

Fernandez, who owned the equipment plaintiff was operating but who testified that plaintiff was not his employe, stated further that 'we usually load out in the open field' and that the occasion plaintiff was injured was the only time he recalled that any of his equipment worked near power wires. Hoxie, the trucker who was helping with the loading, testified that 'as a general rule, the farmers stick their hay out away from the wires.'

Defendant first contends that the evidence was insufficient to support a finding of negligence on its part, and in particular urges prejudicial error in the giving of two instructions requested by plaintiff. The first of such instructions was that 'At the time and place of the accident in question, the defendant Pacific Gas & Electric Company was required to maintain its power lines at least 22 feet above the ground.'

General Order 95 of the Public Utilities Commission, relied upon by defendant, establishes in Rule 37 a basic minimum clearance of 25 feet above the ground along thoroughfares in rural districts or across other areas capable of being traversed by vehicles or agricultural equipment. Subparagraph (a) of Rule 54.4-A(2) permits reduction of the clearance to 22 feet in rural districts, 'for conductors crossing or overhanging traversable portions of public or private roads or driveways.' Subparagraph (b) of the same rule permits reduction of the clearance to 18 feet 'for lines across areas capable of being traversed by agricultural equipment and along roads where no part of the line overhangs any traversable portions of a public or private roadway.' Amen, the ranch owner, testified that a private ranch roadway surrounded the area where the haystack was located and plaintiff was injured and that the wires overhung such roadway on both sides of the area. Thus, the clearance of the wires was required to be at least 22 feet at the points where they cross the roadway but could be reduced to only 18 feet in the area where plaintiff was injured. As stated hereinabove, there was evidence that the clearance was over 19 but less than 21 feet where the boom contacted the wires.

Although it is thus evident that the instruction now attacked by defendant--that a 22-foot clearance was required[43 Cal.2d 630] --was erroneous, it further appears that the error was invited by defendant. It was defendant who introduced General Order 95 as an exhibit during the trial and at defendant's request the court instructed the jury that 'At the time and place of the accident in question, the defendant Pacific Gas & Electric Company was permitted to maintain its power wires a distance of 22 feet above the ground.' The record discloses no request for an instruction that a minimum clearance of 18 feet was permitted over the area where the accident occurred. Having thus invited the error of the trial court and so contributed to inducing the jury to erroneously believe that if they accepted the testimony that the clearance of the wires was less than 22 feet, then defendant was guilty of negligence, defendant is estopped to complain on appeal that the evidence is insufficient to support a finding of such negligence, or that, since plaintiff was of a class designed to be protected by the 18-foot rule, defendant's violation of the 22-foot rule did not contribute proximately to his injuries. (Jentick v. Pacific Gas & Electric Co. (1941), 18 Cal.2d 117, 114 P.2d 343; see also 4 Cal.Jur.2d 420-424, and cases there cited.)

The seeming harshness of the last mentioned rule as applied here is ameliorated somewhat by two considerations: (1) Compliance with the general orders of the Public Utilities Commission does not establish as a matter of law due care by the power company, but merely relieves it 'of the charge of negligence per se. It does not affect the question of negligence due to the acts or omissions of the company as related to the particular circumstances of the case.' (Lozano v. Pacific Gas & Electric Co. (1945), 70 Cal.App.2d 415, 424, 161 P.2d 74.) (2) Since the boom on the derrick here involved could be raised to a height of 23 feet 2 inches and since that type of derrick was in common use in the community the jury may have based its verdict on a finding that defendant was negligent in not having maintained its high voltage wires at a height over the fields sufficient to permit safe operations, including moving of such derricks. This aspect of the case is further developed in connection with the next assigned error.

The other instruction, the giving of which is the basis for defendant's next charge of error, reads as follows: 'If you find from the evidence that it was a common practice in the community where defendant was maintaining the power lines involved in this action, of persons loading hay to use derricks such as the one used by the plaintiff in this case, then you are instructed that it was the duty of the defendant to have ascertained such fact and to use reasonable care in maintaining its wires across the agricultural lands and private roads in said community at such height that there was no likelihood that such derricks would come in contact with its power lines, and if you find that defendant failed in this case to maintain the power lines in question according to this requirement, defendant is guilty of negligence.'

Defendant urges that this instruction 'forces the jury to infer' that if hay loaders with drop booms were found to be commonly used--as was established by uncontradicted evidence--then defendant 'should have anticipated' that plaintiff would raise the boom and move it against the high voltage wires, and that the instruction 'required as a matter of law the finding' that defendant was negligent 'merely from the fact that the hay loader * * * could contact' the wires and thereby made the defendant an insurer against such accidents as here involved. However, the attacked...