Scarpelli v. Washington Water Power Co.

• Citation: 114 P. 870,63 Wash. 18
• Parties: SCARPELLI et al. v. WASHINGTON WATER POWER CO.
• Decision Date: 15 April 1911
• Court: Washington Supreme Court

114 P. 870

63 Wash. 18

SCARPELLI et al. v. WASHINGTON WATER POWER CO.

Supreme Court of Washington

April 15, 1911

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by Adelaide Scarpelli and others against the Washington Water Power Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Peacock & Ludden, for appellants.

Post, Avery & Higgins, for respondent.

MORRIS J.

Appeal from a judgment non obstante veredicto. Raphael Scarpelli husband and father of appellants, was killed August 26, 1909 by being thrown from a wagon against the street curb. It was alleged in the complaint that the cause of his death was the negligence of the respondent in carelessly allowing one of its electric light wires, along Arthur street in the city of Spokane, to become detached from the poles upon which it was strung across Pacific avenue, and negligently allowing the same to drop to the street, and that, while the wire was carelessly permitted to remain across the street, the deceased drove his team across it, causing the horses to become unmanageable and run away, and throwing deceased to the ground, whereby he met his death. Issue being made upon these allegations, trial was had, resulting in a verdict of $3,000 for plaintiffs, which verdict was set aside and judgment awarded defendant upon its motion. This act of the court is the main error relied upon, and a disposal of which must determine the case.

The evidence introduced by appellants tended to show that the deceased was driving east on Pacific avenue; that at the corner of Arthur street an electric light wire, known as a feed wire, had in some unknown manner about 10 minutes previous to the approach of deceased become detached from its pole on the north side of Pacific avenue, and had fallen across the avenue. By reason of the fact that the lots on the north side of the avenue were about ten feet above grade, and those on the south some feet below the grade, the wire as fallen was about six feet above the street surface on the north side and within a short distance thereof on the south side. Deceased drove across on the south side and, reaching the dangling wire, one of the horses, as described by a witness, 'was lunging ahead and the other one was trying to surge back. Finally he rallied them up and jumped over, or on it rather, and the wire was flopping around their legs and they started to run.' They continued to run about 1,000 feet, when they ran into the curb, throwing deceased to the ground, and inflicting injuries from which he died in a few minutes. This was the only evidence touching the alleged negligence when plaintiffs rested. It was shown that the insulation was off the wire in places, but, as this was not charged as negligence and there was no allegaton of general negligence, we deem this immaterial. It was of no value to plaintiffs in any event, since from their testimony the fallen wire was the proximate cause of the runaway. The defendant then moved for a nonsuit, which was denied, the court holding that the wire being a dangerous instrumentality, although no cause was shown for its fall, negligence would be presumed; and, it being established that the horses came in contact with the fallen wire, it was sufficient to put the defendant upon proof. The defendant then introduced its evidence tending to show that the deceased drove under the wire before it fell, and that his horses did not come in contact with the wire, nor were they frightened thereby, but rather by the flopping black cloth of a photographer, who was standing on Pacific avenue taking pictures of the houses along the avenue. It was then shown that the city of Spokane was engaged in construction work along and upon Sprague avenue near Arthur street, west of and parallel with Pacific avenue; that in this work large chains and tackle were used in moving rocks weighing five or six tons; that the carrier ran on pulleys with an endless cable, which was about four feet below the electric light wire of the defendant on Sprague avenue, and which formed a connection with the Arthur street wire near the street intersection; that while picking up a rock the chain broke or slipped, and the block and tackle flew up and over and upon defendant's wire, the effect of which was to give the wire a violent jerk, breaking and badly splintering the cross-arm on the pole that carried the Arthur street line, and splintering or breaking the brackets on the poles carrying the wire south on Arthur street. These brackets were of oak, and were fastened to the poles with a 60-penny spike at the top and a 30-penny spike at the bottom. Three strands of wire were then wound around the bracket and the pole, so as to make the fastening more secure. The effect of the wrench on the pole just north of Pacific avenue was to break the bracket off, and the wire fell to the ground. This was about 10 minutes before the accident to the deceased. The defendant then rested, and the plaintiffs in rebuttal contested the testimony in regard to the cause of the fright of the horses, but offered no testimony as to the falling of the wire; nor attempted in any way to contradict the testimony in regard to the accident on Sprague avenue, or its effect upon the wires along Arthur street. The case was then given to the jury, with instructions to return several special verdicts, which need not be referred to with but two exceptions, as no question is raised in regard to them. The exceptions are an interrogatory in which the jury is asked the defect which caused the wire to fall, and answered: 'Brackets too light for the distance between poles for said wire in question.' The other was to the effect that the wire was not thrown down by any force applied at Sprague avenue. The first answer is outside of the issues. No evidence was introduced on that point, and the answer is nothing more than a conjecture on the part of the jury. The second answer disregards the unchallenged and uncontradicted testimony as to the effect of the accident on Sprague avenue. Upon the return of the verdict, defendant made its motion for judgment which was granted, and this appeal taken.

Appellants' first contention is that the court, having denied the nonsuit, should likewise have denied respondent's motion for judgment notwithstanding verdict. This does not necessarily follow. While ordinarily, as is said in Weir v. Seattle Electric Co., 41 Wash. 657, 84 P. 597 'testimony which is sufficient to carry a case beyond a...