Richardson v. Pacific Power & Light Co.

• Decision Date: 21 November 1941
• Docket Number: 28419.
• Citation: 118 P.2d 985,11 Wn.2d 288
• Court: Washington Supreme Court
• Parties: RICHARDSON v. PACIFIC POWER & LIGHT CO. et al.

118 P.2d 985

11 Wn.2d 288

RICHARDSON v. PACIFIC POWER & LIGHT CO. et al.

No. 28419.

Supreme Court of Washington, En Banc.

November 21, 1941

Death action by Regina Richardson, as administratrix of Frank G Richardson, deceased, against Pacific Power & Light Company and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Appeal from Superior Court, Walla Walla County Timothy A. Paul, judge.

Laing Gray & Smith, of Portland, Or., and Lehrer & Marquis, of Walla Walla, for appellant.

Edge, Keith & dePender and Leo N. Cashatt, all of Spokane, and Glenn L. Bean, of Walla Walla, for respondents.

STEINERT Justice.

Plaintiff, as administratrix, brought this action in Walla Walla county, Washington, to recover damages for the wrongful death of her husband occassioned in Oregon and resulting from his coming in contact with a broken high tension wire which constituted a part of the power distribution system of defendant Pacific Power & Light Company, hereinafter referred to as the power company. Defendants Don Thompson and Robert Bragg were, respectively, the power foreman and the manager of the power company's Walla Walla division. The cause was tried to a jury, except as to one issue on which, by stipulation of the parties, the evidence was taken, during the course of the trial, Before the court alone. The jury returned a verdict in favor of plaintiff. Defendants moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The motion was denied in its entirety, and judgment was entered on the verdict. Defendants have appealed.

In their assignments of error, appellants make four contentions, which have been rearranged, for convenience of treatment, as follows: (1) That to enforce the Oregon wrongful death statute in this litigation would be against the public policy of this state; (2) that the decedent was guilty of contributory negligence as a matter of law; (3) that the court erred in giving any instruction on the presumption of due care; and (4) that respondent, for a valuable consideration, had previously executed a general release, thereby barring recovery in the present action.

The facts as the jury was entitled to resolve them from the evidence are as follows: At the time of his death, Frank G. Richardson was thirty-two years of age, was the possessor of an electrical engineering degree from Washington State College, and for ten or eleven years had been an electrician and lineman in the employ of Pacific Telephone & Telegraph Company, hereinafter referred to as the telephone company. Richardson was a competent, steady, reliable, industrious man, and for some time Before his death had been receiving a salary of $217.50 per month. He is survived by his wife, respondent herein, and two small sons, who were four and eight years of age, respectively, at the time of the trial.

The power company, in so far as we are here concerned with its activities, was engaged in supplying electric power in a district around the city of Walla Walla and in the northeastern portion of Oregon. It maintained various power lines throughout that area, one of its lines terminating at a farm in Umatilla county, Oregon, occupied by one George Chapman. It was upon this farm that Richardson met his death.

The particular power line involved in the present action approached the Chapman farm from the south and, after entering the farm, ran approximately due north to a terminal pole and thence to Chapman's house about 200 feet further north. Since the only part of the power line of any importance in this case is the section between this terminal pole and the pole next adjacent to it to the south, we shall denominate these two poles as the north pole and the south pole respectively. These poles were about 30 feet high and were approximately 217 feet apart. The south pole stood on the west side of the Walla Walla river, which meandered through the farm in a generally north and south direction, while the north pole stood on the east side of the stream. The poles were strung with two copper wires carrying sixty-six hundred volts of electricity.

On the east side of the river, at a point about 117 feet north of the south pole and about 100 feet south of the north pole, stood a large tree, referred to in the evidence as the bridge tree because a footbridge crossing the river was anchored to it. At a point 35 or 40 feet north, and about 15 or 20 feet west, of the bridge tree was a group of four partly dead cottonwood trees, called snags throughout the trial to distinguish them from the live bridge tree. The wires running from the south pole to the north pole passed between the bridge tree and the four cottonwood trees, and, according to the photographs in evidence, the east wire appears actually to have passed through the branches of the bridge tree. The cottonwood trees, the nearest of which stood from 6 to 12 feet west of the west wire, were partly dead at the top; some of the branches extended to and over the wires. Sometimes, when the wind blew, electricity would jump from the power line across to the trees.

About 50 feet north and east of the bridge tree was Chapman's barnyard. At the southwest corner of the barnyard, which was the point nearest the bridge tree, was a gate opening onto a path which led past the tree to the footbridge. From the same corner of the barnyard, and in the area between the bridge tree and the four cottonwood snags, a wagon road ran to and beyond the river, thus passing underneath the power wires.

The telephone company, decedent's employer, also maintained lines throughout the territory around the city of Walla Walla and in the northern part of Oregon. One of these lines crossed appellant company's power line on the Chapman farm. Pursuant to a 'contact permit' from the power company, two of the telephone company's wires were attached to the south pole and to two other power line poles still further south. The telephone wires were fastened to brackets affixed to the poles at a point about 6 fee below the power wires.

Between midnight and 1 o'clock on the morning of January 3, 1939, there was a severe wind storm in the region around the Chapman farm. The United States weather bureau station in Walla Walla recorded a maximum wind velocity of 28 miles per hour from the west at 12:16 a. m. During this storm, a dead limb fell from one of the snags which stood west of the power line and was found the next morning lying on the ground near the edge of the wagon road. When found, the limb was broken in three pieces, the largest of which was from 8 to 10 feet long and from 6 to 8 inches in diameter at the larger end. It was also discovered, later in the same morning, that the east power wire had broken at a point directly above, and a little west of the place where the three pieces of the dead limb were found.

After the storm, at about 4 a. m., Chapman milked his herd of twenty cows, using an electric milking machine, which seemed to operate as usual at that time. The lights in and around his farmhouse were also functioning then and for some time thereafter. Early in the morning, Chapman had twice forded the river a short distance north of the footbridge, at the point where the wagon road intersected the stream, but he had noticed nothing that would indicate that one of the wires was down. However, it appears from the testimony of an electrical engineer, called as an expert witness, that even if the wire had been broken during the wind storm in the early morning hours, still if both ends of the broken wire were touching the earth, enough electricity might have passes through the ground to keep the lights and the milking machine on the Chapman farm in operation.

When the decedent reported for work at the Walla Walla office of the telephone company on the morning of January 3, 1939, he was told that there was trouble on the telephone line near the Chapman place, and was given a written repair order directing him to ascertain the cause of the disturbance and repair it. This order recited, under the heading 'Trouble Data,' that the telephone lines were 'crossed with power,' indicating that current was leaking from a power wire to the telephone line at some point.

Richardson thereupon drove to the vicinity of the Chapman farm, completing his journey on foot after his car had apparently become stuck in the muddy road. At any rate, he passed through Chapman's barnyard at about 8:45 a. m., and, after a short conversation with Chapman, proceeded toward the footbridge, which afforded the only means of access to the south pole, to which the telephone company's wires were attached. Chapman at the same time proceeded toward his house, but just Before entering the door he glanced back and noticed that Richardson was then on the footbridge. Chapman then entered the house and began preparations to shave, but in not more than five minutes thereafter, the lights in the house began to flicker, and at the same time his wife, observing a flash from without, called to him: 'That man is on fire by the tree!'

Chapman immediately ran in that direcetion and found Richardson lying on his back in the path leading to the bridge, at a point about 10 feet northeast of the bridge tree, with the end of the southern portion of the broken east wire of the power line extending across his chest and grasped in both hands. Richardson had been wearing leather gloves at the time, and the wire had burned through the glove and into the flesh of one hand. Apparently Richardson had been killed instantly upon coming in contact with the wire. Realizing at once that the man was dead, Chapman ran to a nearby farm and summoned a neighbor. On returning to the scene of the accident, and finding that the wire had begun to burn...