Vannoy v. Pacific Power & Light Co.

• Decision Date: 15 March 1962
• Docket Number: No. 35564,35564
• Citation: 369 P.2d 848,59 Wn.2d 623
• Parties: Merle VANNOY, Administrator of the Estate of Walter Ziegele, Deceased, Respondent, v. PACIFIC POWER & LIGHT COMPANY, a corporation, and Eugene J. Kari, Tony Smith and Margaret Smith, doing business as K & S Motors, Appellants.
• Court: Washington Supreme Court

Page 623

59 Wn.2d 623

369 P.2d 848

Merle VANNOY, Administrator of the Estate of Walter Ziegele Deceased, Respondent, v. PACIFIC POWER & LIGHT COMPANY, a corporation, and Eugene J Kari, Tony Smith and Margaret Smith, doing business as K & S Motors, Appellants.

No. 35564.

Supreme Court of Washington, In Banc.

March 15, 1962.

Brown, Hovis & Cockrill, and Ted Roy, Yakima, Smith, Gray, Hill & Rodgers, Portland, Or., Joseph E. Hall, Vancouver, for appellants.

Robinson, Morse, Landerholm & Memovich, John E. Morse and Duane Lansverk, Vancouver, and Dick & Dick, The Dalles, Or., for respondent.

DONWORTH, Judge.

This is an appeal from a judgment of the superior court for Klickitat county, entered January 5, 1960, upon a jury verdict rendered in favor of Merle Vannoy, as administrator of the estate of Walter Ziegele, against the Pacific Power & Light Company in a wrongful death action. For convenience, the power company will be called appellant, whereas the administrator of the estate will be called respondent. The action arose out of the accidental death of Walter Ziegele at Bingen, Washington, on the morning of October 1, 1956.

The facts surrounding Ziegele's death are summarized as follows:

The decedent, a resident of Hood River, Oregon, was a self-employed furnace and chimney cleaner. On the day in question, he undertook the job of cleaning the chimney of the K & S Motors building in Bingen. (Originally, Messrs. Kari and Smith, who occupied the building as tenants, were joined as codefendants in this action. However, the action was dismissed as to them at the close of respondent's case. Pacific Power & Light Company, therefore, is the sole appellant.) The building involved is a one-story brick garage, the roof of which is about twenty feet high. Around the top of the building is a parapet, which is nine inches wide. The parapet stands about three and one half feet above the flat roof. The chimney, in turn, is located adjacent to the east wall of the building flush against the parapet and extends approximately one and one half feet above it.

In the moments prior to his death (shortly after nine o'clock a. m.), Ziegele placed a ladder against the east wall of the building and mounted the parapet. He carried with him a 19'6" detachable aluminum pole frequently used by chimney sweeps in work of this nature. While standing a few feet away from the chimney, decedent raised the pole into the air, ostensibly to enable him to insert it into the chimney. As it was being held aloft, the pole came in contact with either the lethal arc of an overhead transmission line (this arc is estimated at twelve inches in diameter) or the line itself. As a result, Ziegele was apparently electrocuted. We use the word 'apparently' because Dr. Henkle, who examined the corpse, signed a statement (which was admitted in evidence), concluding as follows:

'* * * It is totally impossible to state whether this man died from his contact with the transmission lines and the resulting electrical shock and burns or whether he died from the traumatic results of the fall from the top of the building.'

From the evidence, the jury might have logically found that death was due to the electric shock, or to the fall precipitated thereby, or both.

Certain additional facts should be noted regarding the transmission line itself. The line extended 39'3" above the ground--roughly nineteen feet above the roof of the K & S building. The wire consisted of bare, uninsulated copper about one half inch in diameter and carried sixty-nine thousand volts of electricity. No warning signs or other protective devices were maintained by appellant with respect to the transmission line. Also, appellant admits that the wire in question angled over the K & S building in the vicinity of the chimney where decedent was working. The particular line was installed in its present location in 1951, and neither at that time nor at any time thereafter did appellant secure permission from the landowner (one A. M. Bolter) to maintain the line over any portion of the premises.

Appellant raises a total of twenty-five assignments of error. However, we feel that these can be condensed into roughly eight questions or issues.

First, did the trial court err in failing to hold the decedent contributorily negligent as a matter of law? Appellant contends that any reasonably prudent chimney cleaner, about to take a long metallic pole on top of a twenty-foot building, would check to ascertain the presence of electrical wiring located in proximity to his working area. We cannot agree. Appellant's contention is premised on the theory that the hazard involved was so open and obvious that a reasonably prudent man must have seen and appreciated it. Respondent, however, introduced evidence to the contrary, indicating that a layman unversed in the field of electricity would be hard put to distinguish the lethal, uninsulated wiring strung in the vicinity of the K & S building from harmless, insulated wiring. Respondent's evidence on this point, at the very least, suffices to create a jury question, and it is, therefore, not for the court to say that decedent was guilty of contributory negligence as a matter of law. See Ward v. Thompson, 157 Wash. 560, 359 P.2d 143 (1961); Farrow v. Ostrom, 10 Wash.2d 666, 117 P.2d 963 (1941); Hynek v. Seattle, 7 Wash.2d 386, 111 P.2d 247 (1941).

Second, did the trial court err in withdrawing the defense of volenti non fit injuria from the jury's consideration? In our opinion, it did not. In Anderson v. Rohde, 46 Wash.2d 89, 278 P.2d 380 (1955), this court defined the maxim of volenti non fit injuria as the 'knowledge and appreciation of the danger involved and a voluntary assent thereto.' There is no evidence in the record before us which could be said to impute actual knowledge of the danger involved to the decedent. Appellant is contending that the decedent should have appreciated the dangerous condition--not that he, in fact, did appreciate it. The jury question concerning whether the decedent should have appreciated the danger involved is essentially one of contributory negligence and the maxim of volenti non fit injuria is inapplicable.

Third, did the trial court err in holding that Rule 14 of RCW 19.20.010 applies to outside wiring? The rule reads as follows:

'All wires or appliances carrying a current of less than seventy-five hundred volts, inside of any building or vault, for the distribution of electrical energy, shall be sufficiently insulated, or so guarded, located, or arranged as to protect any person from injury. All wires or appliances carrying a current of over seventy-five hundred volts, shall be insulated, or so located or arranged, as to protect any person from injury; or shall be protected by a grounded metallic guard screen or other device equally as efficient, so arranged that no person may come within three times the arcing distance of the given voltage of such conductor or appliance as rated by the American Institute of Electrical Engineers for discharges between needle points; or by a guard rail or other device so arranged that no person may come within three feet of the same.'

The trial court read the second sentence of rule 14 to the jury and went on to instruct the jury that a violation of this statutory rule, if it proximately caused the injury complained of, would constitute negligence as a matter of law. Clearly, the first sentence of rule 14 applies only to inside wiring 'carrying a current of less than seventy-five hundred volts.' But the second sentence of the rule applies to different wiring--wiring 'carrying a current of over seventy-five hundred volts,' and the words 'inside of any building of vault' are omitted. Appellant seeks to have us read in the missing words. The words may have been omitted inadvertently, as appellant contends, but it is beyond the power and function of this court to read them in. See In re Baker's Estate, 49 Wash.2d 609, 304 P.2d 1051 (1956), and McKay v. Department of Labor and Industries, 180 Wash. 191, 39 P.2d 997, 98 A.L.R. 990 (1934). The rule is neither vague nor ambiguous, nor irrational on its face. Had the legislature intended the second sentence of rule 14 to apply to inside wiring only, we presume that the rule would so state.

There are but two decisions ¹ in the case law of this state which refer specifically to rule 14. ² In Clark v. Longview Public Service Co., 143 Wash. 319, 255 P. 380 (1927), a teen-aged girl was severely injured when her hair blew against a high voltage wire adjacent to a pump house and transformer maintained by the public service company. After discussing at length the duty of care owed by the company, the court added that:

'* * * this is independent of the fact that by express statutory provision * * * [referring to rule 14], it is made obligatory upon the appellant [company] to maintain certain safeguards around the wires and transformer.'

Note, also, that the Clark case involved outside wiring.

The rule was again dealt with in Deffland v. Spokane Portland Cement Co., 26 Wash.2d 891, 176 P 2d 311 (1947). That case arose out of the death of a thirteen-year-old boy who, with a companion, had climbed upon the roof of a cement plant and entered an open cupola in search of pigeons, when he came in contact with high voltage wires and was killed. The trial court had sustained a challenge to the sufficiency of the plaintiff's evidence and dismissed the case.

In affirming the dismissal, this court quoted rule 14. The discussion of the evidence in that case indicates that the court was concerned principally with the issue of contributory negligence. We think that the case is distinguishable from the present case because discussion of the issue of the defendant's negligence based on its alleged violation of rule 14 was not necessary, since the granting of the nonsuit was correct because of the decedent's contributory negligence. Furthermore, the...