Sulpher Springs Valley Elec. Co-op., Inc. v. Verdugo

• Decision Date: 02 March 1971
• Docket Number: No. 2,CA-CIV,2
• Citation: 481 P.2d 511,14 Ariz.App. 141
• Parties: SULPHER SPRINGS VALLEY ELECTRIC COOPERATIVE, INC., an Arizona corporation, Appellant, v. Dolores VERDUGO, Appellee. 895.
• Court: Arizona Court of Appeals

Page 511

481 P.2d 511

14 Ariz.App. 141

SULPHER SPRINGS VALLEY ELECTRIC COOPERATIVE, INC., an Arizona corporation, Appellant, v. Dolores VERDUGO, Appellee.

No. 2 CA-CIV 895.

Court of Appeals of Arizona, Division 2.

March 2, 1971.

Rehearing Denied March 23, 1971.

Review Denied April 27, 1971.

Murphy, Vinson & Hazlett by John U. Vinson, Tucson, for appellant

William E. Netherton, Tucson, for appellee.

HOWARD, Judge.

This is an action for the wrongful death of Basilio S. Verdugo which was consolidated for trial with one brought by the widow of Heraclio A. Beltran who was killed in the same accident. ¹

The deaths of Beltran and Verdugo occurred while they were attempting to install a 29 long television antenna to the side of a home in Patagonia, Arizona. The appellant's distribution system in the area consisted of two bare wires, one 'hot' and one 'neutral', located approximately 28 from the ground. The 'hot' line passed the top of the porch in front of the home, overlapping it by about six inches. The neutral line was six feet further away on the same cross line.

The antenna which electrocuted the deceased, Basilio Verdugo was placed against the house by both Beltran and Verdugo. Beltran then asked Verdugo to go for a hammer and nails to secure it while he held the antenna in place. Verdugo went for the hammer and nails, but, unfortunately, the antenna began to sway. Beltran shouted to Verdugo for help but before he could reach Beltran the antenna came in contact with the 'hot' wire. There was a sharp crack and Beltran fell to the ground, still in contact with the antenna. A vibrating noise and fire was coming out of Beltran's neck. Verdugo arrived on the run and grabbed Beltran. The electrical current knocked Verdugo six feet back. He got up and grabbed Beltran for the last fatal time. Again he was knocked backwards but this time forever.

The jury returned a verdict against the Beltrans but found in favor of the appellee Verdugo, in the sum of $50,000.00. ²

Appellant appeals from the denial of a new trial and the judgment presenting the following questions which we will consider in order:

1. Was the 'Good Samaritan' instruction erroneous or justified by the evidence?

2. Was the verdict in favor of Verdugo and against Beltran inconsistent?

3. Was it error to allow Mrs. Beltran to testify that she had never seen a warning posted in the Patagonia Post Office?

4. Was it error to allow Dr. Nabours to express an opinion concerning safe procedures in maintaining high voltage transmission lines?

5. Was it error to preclude testimony concerning practices followed by other Arizona utilities?

6. Was it error not to allow the appellant's manager in charge of operations to testify concerning the location of the bare wire and when insulation should be used on a high voltage transmission conductor?

7. Did the trial court incorrectly exclude the REA bulletin on the basis that it was immaterial?

8. Was the instruction that the National Electrical Safety Code was a minimum requirement erroneous and a comment on the evidence?

THE 'GOOD SAMARITAN' INSTRUCTION

The trial court gave the following instruction:

'If you find that the defendant was negligent in creating a hazard that resulted in the death of Beltran and the decedent Verdugo sensing this danger acted reasonably in attempting to rescue Beltran then you may find that Verdugo was not negligent.'

The appellant claims the foregoing instruction is erroneous because the 'rescue doctrine' is not available to a person who contributes to the creation of a dangerous situation.

In Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437, 19 A.L.R. 1 (1921), Judge Cardozo, in his own inimitable fashion, set forth the 'rescue doctrine' when he stated: 'Danger invites rescue. The cry of distress is the summons to relief.' In his opinion he expresses the general rule that one who sees a person in imminent and serious peril through the negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life, or serious injury, in attempting to effect a rescue, provided the attempt is not recklessly or rashly made.

A myriad of cases supporting this proposition can be found in the cases annotated in 19 A.L.R., at 5--7, supplemented in 158 A.L.R., at 190--191. As indicated by the general rule, the rescuer can be guilty of contributory negligence in his decision to rescue or in the course of rescue. Thus, Restatement (Second) Torts § 472, states this rule:

'It is not contributory negligence for a plaintiff to expose himself to danger in an effort to save * * * a third person * * * from harm, unless the effect itself is an unreasonable one, or the plaintiff acts unreasonable in the course of it.'

There is also another way in which the rescuer may be guilty of contributory negligence. That is, when the rescuer has himself brought about or helped to bring about the danger. White v. Chicago, 120 Ill.App. 607 (1905); Dulley v. Berkley, 304 S.W.2d 878 (Mo.1957); Tarnowski v. Fite, 335 Mich. 267, 55 N.W.2d 824 (1952); Atlanta & C. Air-Line Ry. Co. v. Leach, 91 Ga. 419, 17 S.E. 619, 44 Am.St.Rep. 47 (1893); Brown v. Columbia Amusement Co., 91 Mont. 174, 6 P.2d 874 (1931); Restatement (Second) Torts, § 472, comment a; 65A C.J.S. Negligence § 124, at 86.

Appellant's claim that the state of the evidence precludes the giving of the instruction is entirely without merit. We believe that the case of Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 107 (1970), has made it abundantly clear that the question of contributory negligence is solely a jury question. Whether Verdugo was guilty of contributory negligence when he helped raise the antenna is strictly a jury question. We find no fault with the wording of the instruction itself. The fault of which appellant complains is in essence, that it does not embody its theory of contributor negligence. If appellant wanted

the court to instruct on this theory it should have offered an instruction. Having failed to do so, it is foreclosed from complaining. Patania v. Silverstone, 3 Ariz.App. 424, 415 P.2d 139 (1966). In its reply brief the appellant makes the novel argument that since this court held in the Sulpher Springs Valley Electric Cooperative, Inc. v. Beltran, supra, that the court committed fundamental error in a contributory negligence instruction and in an instruction concerning the appellant's duty of care, that, 'in view of the fact that instructions are to be considered as a whole, the conclusion is inescapable that the instructions given necessarily were faulty in many respects and this alone should require this aspect of the case to be sent back for a new trial.' Appellant's 'inescapable' conclusion completely escapes us. The error committed by the trial court was In favor of the appellant. We are unable to understand how the appellant can now ask us to reverse because the trial court gave it a favorable instruction.

INCONSISTENT VERDICTS

Although appearing in appellant's opening brief as a question presented for review, appellant's brief contains no supporting arguments nor authorities. We therefore deem the question abandoned. State v. Scofield,7 Ariz.App. 307, 438 P.2d 776 (1968).

MRS. BELTRAN'S TESTIMONY

On direct examination Mrs. Beltran was asked the following questions and gave the following answers without objection:

'Q. Prior to December 18, 1966 (the date of the accident), at any time before then, while you were in the Patagonia area were you yourself or your husband, to your knowledge, ever given any notice of high-tension, high-voltage lines in that area?

A. No, sir.

Q. Have you ever seen any signs up anywhere in the Patagonia area around December 18th, 1968 (sic), or before then warning of any danger of hightension lines?

A. No, sir.'

Upon cross examination of Verdugo's counsel the following questions were asked and the following answers were admitted into evidence over appellant's objection:

'Q. Mrs. Beltran, I assume there is a post office in Patagonia?

A. Yes.

Q. Have you even been in that post office?

A. Yes, sir.

Q. Was this prior to December 18, 1966?

A. Yes, sir.

Q. At any time did you ever see any warnings of high voltage lines in the post office indicating any danger existing in the area from high voltage lines?

At this point there was an objection which was overruled. However, appellee's attorney rephrased his question:

'Q. Did you ever see any notice posted in the post office indicating high voltage lines in the area and for people to use caution or use care in connection with anything that they might do with television antennas or anything else?

A. No, sir.'

Appellant contends this testimony was inadmissible because it consisted of negative testimony, citing Shell Oil Company v. Collar, 99 Ariz. 154, 407 P.2d 380 (1965); In re Schade's Estate, 87 Ariz. 341, 351 P.2d 173 (1960); Southern Pacific Co. v. Fisher, 35 Ariz. 87, 274 P. 779 (1929); Jeune v. Del E. Webb Const. Co., 76 Ariz. 418, 265 P.2d 1076 (1954); Cope v. Southern Pacific Co., 66 Ariz. 197, 185 P.2d 772 (1947); Dalton's Estate v. Grand Trunk Western Railroad Co., 350 Mich. 479, 87 N.W.2d 145 (1957); Udall, Arizona Law of Evidence, § 112, at 210--211 (1960).

In testing the validity of appellant's contention we note that appellant never offered 'The law is well settled in this state that negative testimony without sufficient predicate cannot prevail As against direct, competent, positive testimony. It is, of course, the general rule, supported by authorities from almost every jurisdiction including this state, that the Positive testimony of unprejudiced, disinterested and unimpeached witnesses must prevail over purely negative testimony of the same character. (citations omitted).' 76 Ariz. at 422, 265 P.2d at 1078. (Emphasis added)

any evidence that notices were posted in the post office building or anywhere else, nor does appellant dispute the testimony of Mrs. Beltran in any way. It is not...