Scott v. Pacific Power & Light Co.

• Citation: 178 Wash. 647,35 P.2d 749
• Decision Date: 28 August 1934
• Docket Number: 24987.
• Court: United States State Supreme Court of Washington
• Parties: SCOTT v. PACIFIC POWER & LIGHT CO. et al.

35 P.2d 749

178 Wash. 647

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

No. 24987.

Supreme Court of Washington

August 28, 1934

Department 1.

Appeal from Superior Court, Yakima County; A. W. Hawkins, Judge.

Action by Ralph J. Scott against the Pacific Power & Light Company and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

Rigg Brown & Halverson, of Yakime, and John A. Laing and Henry S Gray, both of Portland, Or., for appellants.

E. L Bennett and Chas. F. Bolin, both of Toppenish, for respondent.

MILLARD, Justice.

This action was instituted to recover from defendant corporation and its manager for personal injuries sustained by the plaintiff as the result of his bringing an iron pole, which he was removing from the roof of a building in Yakima, into contact with, or near to, a high-voltage distributing electric line of defendant corporation. From judgment entered on the verdict in favor of plaintiff, motions for judgment notwithstanding the verdict and for a new trial having been denied, the defendants appealed.

Respondent was employed by the Liberty Theatre Company of Yakima two days a week as a moving picture operator. He was also employed by the same company at other times for special work such as distributing advertising matter, posting signs, and general handyman around the theater. Such special jobs were by separate employment each time.

On the roof, which was used for advertising purposes, of the theater company's building, was an iron pole (erected by respondent a few days prior to the accident) about 20 feet long, to which was attached advertising matter of the theater company. On March 10, 1931, by direction of the theater company's manager, respondent went to the roof of the building for the purpose of removing the pole. He detached the pole from its fastening and laid it over the coping of the alley side of the building. He then walked to the coping and looked over to determine whether he could safely lower the pole into the alley.

Appellant power company maintains distributing electric lines along the alley which the theater building abuts. One of those lines was a distributing line carrying 6,600 volts and was not insulated. That electric line was from 10 to 20 inches horizontally distant from the building and 24 to 30 inches higher than the edge of the coping of the roof. One end of the iron pole rested on the coping and extended upward above the uninsulated electric wires, and the other end of the pole rested on the roof at a point lower than the coping. As stated above, after laying the pole down, respondent went to the coping to see whether the pole could be safely lowered into the alley. He then noticed the electric wires of appellant company and realized the danger of an attempt to lower the pole at that point. He then decided to lower the pole further back where the wires were not so close to the building. He walked from the coping back toward the end of the pole lying on the roof, and, as he picked up the pole near its lower end, the coping acted as a fulcrum and the upper end of the pole was lowered and came near to, or in contact with, the 6,600 volt distributing line, as a result of which the respondent sustained the burns and other injuries on which he bases this action for damages.

Appellants first contend that the charge of negligence was not sustained, as the construction was in accord with standard engineering practice, no statute was violated by the construction and maintenance of the distributing line in such close proximity to the theater building, and there was no breach of the rule as to the care to be exercised by an electric company respecting its wires.

The care to be exercised by an electric company with respect to its wires is such as a reasonably careful and prudent person, having in view the dangers to be avoided and the likelihood of injury therefrom, would exercise under the circumstances in, order to prevent injury.

'While the measure of duty resting upon electric companies in order to exonerate them from liability for negligence is expressed by the courts in forms varying from reasonable or ordinary care and diligence, to a close approximation to the view that they are insurers, yet the generally accepted rule in such cases, as in determining liability for negligent injuries generally, is that such companies are bound to use reasonable care in the construction and maintenance of their lines and apparatus; that is, such care as a reasonable man would use under the circumstances, and will be responsible for any conduct falling short of this standard. The degree of care which will satisfy this requirement varies, of course, with the danger which will be incurred by negligence, and must be commensurate with the danger involved, and, according to numerous decisions, where the wires maintained by a company are designed to carry a strong and powerful current of electricity, so that persons coming in contact with them are certain to be seriously injured, if not killed, the law imposes upon the company the duty of exercising the utmost care and prudence consistent with the practical operation of its plant, to prevent such injury.' 9 R. C. L. § 13, p. 1199.

'* * * Electric companies are * * * bound to use reasonable care in the construction and maintenance of their lines and apparatus, that is, such care as a reasonable man would use under the circumstances, and will be responsible for any conduct falling short of this standard. It follows from this rule, that the amount of care necessary varies with the danger which is incurred by negligence, for a prudent and reasonable man increases his care with the increase of danger. If but little danger is incurred, as, for instance, when the wires carry only a harmless electric current, such, for instance, as the telegraph or telephone current, only ordinary care may be required. While if the wires carry a strong and dangerous current of electricity, so that negligence will be likely to result in serious accidents, and perhaps death, or if a harmless wire is in dangerous proximity to a high tension wire, a very high degree of care, indeed, the highest that human prudence is equal to, is necessary. This is particularly true of electric light and electric railway wires, which carry a high tension current often of great danger. The rule is thus stated in a case in Massachusetts. 'The vigilance ance and attention required must conform to the nature of the emergency and the danger to which others may be exposed, and is always to be judged of according to the subject-matter, the danger and force of the material under the defendant's charge.' The question of whether or not reasonable care has been used is in all cases for the jury, except where the court, on undisputed facts, can say that no reasonable man would have acted in the manner complained of, or that a reasonable man must have acted in the manner complained of. Between these limits the whole question is for the jury. Furthermore, as in all actions for negligence the question of the conduct of the plaintiff is involved, and if he has been guilty of contributory negligence, that is, of conduct which a reasonable and prudent man would not have adopted under the circumstances, and this conduct has contributed directly to his injury, he connot recover therefor.' Croswell, Law of Electricity, § 234, pp. 205, 206.

In enunciating the rule as to the care to be exercised respecting the construction and maintenance of electric lines, we said, in Graves v. Washington Water Power Co., 44 Wash. 675, 87 P. 956, 959, 11 L. R. A. (N. S.) 452: 'Ordinarily a person whose duty it is to furnish protection to others against a dangerous agency, fully complies with the law when he provides such a protection as will safely guard against any contingency that is reasonably to be anticipated. He is not legally bound to safeguard against occurrences that cannot be reasonably expected or contemplated as likely to occur.'

Where death or serious injury may be caused by an agency lawfully in use, ordinary care requires that every means known, or that with reasonable inquiry would be known, must be used to prevent it.

'It may be stated as a general principle of law that one who has in his possession or under his control an instrumentality exceptionally dangerous in character is bound to take exceptional precautions to prevent an injury being done thereby. The law exacts of one who puts a force in motion that he shall control it with a skill and care proportioned to the danger created. A higher degree of care and vigilance is required in dealing with a dangerous agency than in the ordinary affairs of life or business, which involve little or no risk of injury to persons or property. While no absolute standard of duty in dealing with such agencies can be prescribed, it is safe to say, in general terms, that every reasonable precaution suggested by experience and the known dangers of the subject ought to be taken.' 20 R. C. L. § 47, p. 51.

As stated in the annotations at page 1024 of volume 14, A. L. R.: 'While the terms of stating the measure of duty of the electric company are different, there is a great uniformity in the decisions to the effect that one maintaining a high tension electric transmission line without proper insulation, at places where workmen are likely to come into contact with it to their injury, is liable for the injury.'

In Thomas v. Wheeling Electrical Co., 54 W.Va. 395, 46 S.E. 217, the defendant was held liable in an action by the plaintiff to recover for injuries sustained by coming in contact with an uninsulated electric wire strung over a balcony where plaintiff was working.

In Giraudi v. Electric Improvement Co., 107 Cal. 120 40 P. 108, 111, ...