Pacific Tel. & Tel. Co. v. Slezak, 21422.

• Decision Date: 11 April 1929
• Docket Number: 21422.
• Citation: 151 Wash. 457,276 P. 904
• Court: Washington Supreme Court
• Parties: PACIFIC TELEPHONE & TELEGRAPH CO. v. SLEZAK et al.

276 P. 904

151 Wash. 457

PACIFIC TELEPHONE & TELEGRAPH CO. v. SLEZAK et al.

No. 21422.

Supreme Court of Washington

April 11, 1929

Department 1.

Appeal from Superior Court, King County; Howard M. Findley, Judge.

Action by the Pacific Telephone & Telegraph Company against W. F Slezak, and the marital community consisting of W. F. Slezak and his wife. Judgment notwithstanding the verdict in favor of plaintiff, and defendants appeal. Reversed and remanded with directions.

N. A Pearson and Pearson & Potts, all of Seattle, for appellants.

Chadwick, McMicken, Ramsey & Rupp, and A. E. Bailey, Jr., all of Seattle, for respondent.

HOLCOMB J.

In this action respondent sued to recover damages in the sum of $896.50 from appellant by reason of appellant's employee driving a spike into a conduit owned by respondent in the street.

The complaint of respondent, among other things, alleges that, at the times mentioned, and for many years last past, respondent had been engaged in the general telephone and telegraph business in Seattle, and had maintained and operated its telephone lines and cables over, across, and under the streets and alleys of the city; that on the morning of April 23, 1927, appellant W. F. Slezak was engaged in placing steel reinforcements for a bulkhead at Manning street between Twenty-Eighth Avenue Southwest and Alki avenue in that city; that defendant Slezak was notified of the exact location of one of the telephone cables located at Manning street between Twenty-Eighth Avenue Southwest and Alki avenue in the city; that the conduit which contained the trunk cable was fully exposed to the defendant, and that the defendant so carelessly and negligently conducted his operation that on the morning of April 23, 1927, the trunk cable at Manning street between Twenty-Eighth Avenue Southwest and Alki avenue was damaged by the defendant, or by one of the workmen in his employ, by carelessly and negligently driving a spike into the cable, thereby allowing water to penetrate to the insulated wires in the cable and short-circuiting them; that, by reason of the injury to the cable, it was necessary for plaintiff to repair it, to the damage of plaintiff in the sum of $896.50. Judgment was prayed for that sum.

Appellants answered the complaint, admitting the allegations in paragraphs I, II, III, IV, and VII thereof, and denying the allegations in the complaint that appellant was notified of the exact location of one of the telephone cables located at Manning street, etc.; that the conduit which contained the trunk cable was fully exposed to appellant, and that appellant so carelessly and negligently conducted his operation on the morning of April 23, 1927, that the trunk cable there located was damaged by appellant or his workman by carelessly and negligently driving a spike into the cable, thereby allowing water to penetrate to the insulating wires in the cable and short-circuiting them. The damages and the amount thereof were also denied. An affirmative defense of contributory negligence was also alleged in the answer.

Upon these issues the cause was tried by the court and a jury. A challenge to the evidence was interposed by appellants at the conclusion of the evidence for respondent, which was denied by the trial court at the time, although the trial judge said he was inclined to sustain the challenge, as he was disposed to the view, as a matter of law, that the plaintiff was entitled to judgment against the defendant. He also said he did not think a contractor or subcontractor, in fact, anybody, had any right to go into the public streets and begin 'digging around or driving nails into objects in the street unless they knew what the objects were and if they did damage or injury to someone else lawfully there, they were liable for it.'

Henceforth W. F. Slezak will be referred to as if the only appellant.

The trial court let the case go to the jury. Evidence was introduced on behalf of appellant, the jury were instructed in substance that, if they found from a fair preponderance of the evidence that on the date alleged respondent was lawfully conducting its business in Seattle, and was lawfully using underground cables at the locality alleged, that the underground cables were exposed, that appellant had knowledge of the location of the conduit containing the cable, or, by the exercise of reasonable care, should have known of the location of such conduit, and that, while engaged in steel construction work at the place in question, so negligently conducted such work that the trunk cable of respondent was damaged by one of appellant's workmen driving a spike into the cable and short-circuiting the wires therein, then respondent had been damaged, and would be entitled to recovery.

The jury were also instructed that, if appellant was on the ground engaged in working there, and received timely notice of the location of the cable, but failed to exercise reasonable care to see that it was not damaged, and, because of such failure, the cable was damaged, then he would be liable for the damage resulting.

Other instructions were given on the theory of negligence, defining negligence, proximate cause, and reasonable care.

Slezak was a subcontractor for Nelson & Peterson, general contractors, who were constructing for Seattle, on a public street, a concrete abutment to support a bridge over the tracks of a railroad at the locality described in the complaint. Trunk-line cables of respondent running to West Seattle ran under Manning street at the point of this construction. These cables were sheathed in lead tubes, and placed in six separate black wooden creosoted conduits, each six inches square, laid in two tiers, three sections high, and covered on the top by a 1"'X12"' plank.

All the necessary excavations for the bulkhead were made by Nelson & Peterson, the general contractors. None of the excavating or digging was done by Slezak. At the place where this accident occurred, the excavations had been made for the abutment, and at several places footings necessitated excavating to a greater depth. Respondent's conduits ran diagonally through the corner of one of these footings.

Appellant is a subcontractor who does the work of placing the steel only for reinforcing the concrete structures. Some time during the forenoon of the day previous to the one in question, appellant informed his employee that the general contractors would pour concrete in the footings the following morning, and instructed him to put the steel in place. Accordingly, the employee, with a helper, went early to the place the following morning in order that he might have the steel rods placed before the concrete workers came to pour concrete in the footings. These steel rods must be braced by something to keep them in position while the concrete is poured, and the employee attempted to secure the rods by driving two spikes into what he thought were timbers that had been left in the excavation and placing supporting wires from the spikes to the rods.

According to the testimony of the employee, at the place where the excavation had been made for the footings, there was a mass of timbers, apparently having been placed there for cross-braces to hold up the bridge while the work was going on. The soil in which the excavation had been made was soil which had been filled in, composed of sand, clay, and débris, and the conduit into which he drove the spike looked like an ordinary piece of timber that had been buried for a while in such soil. It was covered with a thin coat of soil, so that he could not tell what kind of timber it was, but, thinking it was a piece of solid timber, drove a spike into it.

Both Slezak and the employee testified that they had never been notified by the general contractor, or any one else, that this conduit was there. Slezak testified...