In Bergen v. Tulare County Power Co., 173 Cal. 709 [ 161 P. 269], an instruction requiring a power company to use "very great care" in its operations was approved so we cannot regard the use of "great care" in instruction number 27 as reversible error.Summary of this case from Holmes v. Southern Cal. Edison Co.
Sac. No. 2294.
November 23, 1916.
APPEAL from a judgment of the Superior Court of Tulare County, and from an order denying a new trial. J.A. Allen, Judge.
The facts are stated in the opinion of the court.
E.I. Feemster, Charles E. Bush, and A.E. Cooley, for Appellant.
Murry Knupp, for Respondent.
Defendant appeals from an adverse judgment and from an order denying its motion for a new trial.
The action was one for damages sought by Sarah E. Bergen, as administratrix of the estate of L.C. Bergen, deceased, on account of his death. The verdict in favor of plaintiff was for twelve thousand five hundred dollars.
Bergen was a rancher living near Strathmore, in Tulare County. He had a wife and two minor children, the latter being at the time of his death respectively seventeen and ten years of age.
Water for irrigating the orchard on Mr. Bergen's ranch was raised from a well by means of a pumping plant operated by electricity. This plant had been installed about a year previous to Mr. Bergen's death by the defendant corporation, which is a power company engaged in furnishing electricity to its patrons by means of wires carrying heavy currents.
During a few days before that upon which the accident occurred, Mr. Bergen had been having trouble with the pumping plant and on that evening, when he arrived at his home, his wife told him that something was wrong with the pump. He replied that the pump was all right, but that there was not enough power coming over the wires to move both the motor and the pump. About 9 o'clock Mr. Bergen went to the pumping plant for the purpose of discovering, if possible, the cause of the trouble with the supply of power. After vainly awaiting his return for about an hour his wife and daughter caused search to be made for him. His dead body was found in the well-pit behind the pump. Deceased was in a kneeling posture, his head resting against the discharge pipe leading from the pump. In his hand was held the lamp socket on the drop-cord suspended in the pit. His hands were severely burned, and the physician who examined the body declared that death resulted from electric shock. There was evidence to the effect that glass from broken lamp globes was found scattered about the place; that the motor was burned out; that the insulation on the lamp-cord was badly punctured, and that the coating of the jacket which is set over the lamp socket to prevent contact between the interior electrical connection and the brass case was completely burned away over one of the terminals.
Appellant delivered its current to Mr. Bergen by means of its primary power wires which terminated at a pole a few feet from the pumping plant. The primary wires carried six thousand six hundred volts. By means of "transformers," a current of 220 volts was taken off of these wires for the engine and one of 110 volts for the electric lighting. Respondent's theory developed at the trial by the evidence in her behalf was that appellant in the installing of the plant had employed dangerous and unsafe connections and a deficient ground wire, with the result that a high, dangerous, and excessive current was permitted to pass from the primary side of the transformers into the secondary side and so through the drop-cord into Mr. Bergen's body.
Appellant's first attack is directed against the order of the court overruling the demurrer to the complaint. That pleading set forth with some elaboration the statements that defendant improperly and carelessly constructed and installed transformers and ground wires; negligently and carelessly failed to use due care in selecting proper materials, safety devices, and appliances for reducing the current carried by the primary wires; and that by reason of the fact that defendant had permitted the transformers, ground wires, and appliances to remain in a defective condition, a high and dangerous current of electricity was permitted to pass from the primary wires into the secondary wires and into the drop-cord and electric light which hung in the pit. Appellant complains of ambiguity because the words "appliances" and "appurtenances" are used in the attempted descriptions of both the primary and the secondary systems. There is no merit in this contention. The complaint clearly sets forth the theory of the accident upon which respondent relies. Appellant also complains of ambiguity in the pleading resulting in its inability to determine therefrom whether its alleged negligence consisted in improperly installing transformers, ground wires, and appliances; in lack of care in selecting proper materials and safety devices; in improper construction and maintenance of transformers, etc.; or in failing properly to operate, inspect, keep, and use the transformers, etc. The statement in a pleading of several distinct acts of negligence, proof of any one of which would entitle the pleader to a recovery, is not properly subject to demurrer for uncertainty or ambiguity because the plaintiff may recover "upon proof of enough to make a cause of action." (6 Thompson on Negligence, 2d ed., sec. 7474.)
Nor was the complaint vulnerable to the objection that the particular acts constituting the negligence of defendant were not specified. It is well settled in California that negligence may be charged in general terms. It is only necessary to plead what was done, and allege that it was negligently done without stating the particular omission which made the act negligent. But it must appear from the allegations that the negligence caused or contributed to the injury. ( Smith v. Buttner, 90 Cal. 95, [27 P. 29]; Stein v. United Railroads, 159 Cal. 368, [ 113 P. 663]; Champagne v. Hamburger Sons, 169 Cal. 683, [ 147 P. 954].) Measured by this rule the complaint was sufficient. The order overruling the demurrer to the complaint was a proper one. The case was tried upon a well-defined theory, and even if the complaint had contained the defects of which the demurring party complained, that litigant was not misled because the controversy was fairly determined upon its merits. ( Bank of Lemoore v. Fulgham, 151 Cal. 234-237, [ 90 P. 936]; Stein v. United Railroads, 159 Cal. 368, [11.3 P. 663]; Irrgang v. Ott, 9 Cal.App. 440-442, [ 99 P. 528].)
It was defendant's theory that Mr. Bergen fell from the ladder while he was going down into the pit where the pump was located, and that he was either killed by the fall or by the long-continued passage of 110 volts of electricity from the drop-wire through his body. While Mr. Gardiner, an electrician, was under examination as a witness he was asked if he had ever received a shock of 110 volts of electricity. He answered in the affirmative over the objection of defendant's counsel. The basis of the objection was that there was no similarity between the physical conditions of the two men, because the evidence showed that a few months before his death Mr. Bergen had been struck on the head and thereafter had been subject to headaches. The testimony was properly admitted. While it was true that there had been evidence tending to prove an injury to Mr. Bergen which had left some painful results, there had been medical testimony also to the effect that just prior to his death Mr. Bergen had been in good physical condition, and that his heart had been strong and normal at that time. It was therefore competent for plaintiff to offer evidence regarding the result of suffering a shock of 110 volts of electricity by a man of average physique and resistant powers. If the witness had been unusually powerful and capable of withstanding a heavier shock than the ordinary man, even that fact would have related more to the weight than to the admissibility of the testimony. But it does not appear that he was at all abnormal.
Mr. Gardiner also testified regarding the condition of the ground wire when he examined it about ten days after the accident. Objection was made upon the ground that the time was too remote, but we cannot say that the court erred in exercising discretion in favor of the admission of this testimony. That ten days had elapsed between the accident and the electrician's inspection of the ground wire was a fact going more to the weight than to the relevancy of this testimony. It is the contention of appellant's counsel that upon plaintiff devolved the duty of proving that no change had taken place in the condition of the ground wire and the buried pipe between the time of the accident and Mr. Gardiner's inspection of it. It is quite true that, as appellant contends, the presumption of unchanged condition is not retroactive, and that the mere production of the pipe and wire would not prove that they were in the same state ten days after the accident as they were on that day. ( Windhaus v. Bootz, 92 Cal. 617-621, [28 P. 557]; Cerruti Mercantile Co. v. Simi Land Co., 171 Cal. 254 -256, [ 152 P. 727].) But there was evidence tending to show that no change had been made during that interval. Miss Hazel Bergen testified that so far as she knew nothing was done between the date of the accident and the coming of Gardiner to connect the plant with the system of the Mt. Whitney Power Company, except that the defendant caused its power to be disconnected. She said: "I was not around the plant myself and I did not see anybody else around there." Mr. Gardiner testified that he did not touch the wire prior to the time it was examined by witness Davis, who went to the scene of the accident thirteen days after Mr. Bergen's death. Davis said he was accompanied by Mr. Knupp, plaintiff's attorney. They found a ground wire and rod or pipe and pulled the rod up. It gave no indication of having been lately tampered with and it looked as if it had been imbedded in the earth at that place for a long time. This rod was in the same place indicated in the testimony of witness Kratzer, who had installed the wiring and at the time of its removal it was still connected with the ground wire running the full length of the polo, Mr. Knupp corroborated the statements of Mr. Davis. We think this testimony fairly established the fact that no material change had been made in the rod and the wire during the thirteen days following the accident. Kratzer had sworn that the ground wire was attached to the pipe or rod with solder, and that the latter had been driven into the ground about five feet or nearly its entire length. The testimony of Davis, Knupp, and Gardiner was in contradiction to this statement. Gardiner said that the wire was loosely attached to the pipe but was not soldered; and Davis testified that there never had been any good connection with solder between the wire and the ground pipe or rod, and that the latter was corroded. The rod, together with about two feet of the attached wire, was introduced in evidence. Mr. Gardiner said that if the primary and secondary wires were grounded together and the primary ground wire and rod were not sufficient, the primary voltage would go into the secondary. "In such a case," he said, "if a man attempted to turn on his light in the well-pit, if he would come in contact with a bare place or some current would jump through on the socket, the primary would go on through the secondary to the ground and whatever was connected with it. If he made a better ground than the company made in this case, he would be in direct contact with the primary voltage." This testimony entirely sustained plaintiff's theory of the manner in which Mr. Bergen met his death. Mr. Davis, another electrician, gave it as his opinion that the grounding of the system at the Bergen pumping plant was unsafe, for the reason "that the primary or high tension wire and the secondary or low tension wire are in direct metallic contact with each other, and also grounded through this same wire; one wire runs down the pipe. In other words, the primary ground is not grounded separate from the secondary; they are both tied together with a common ground." Continuing he said:
"The effect is this: If you remove that ground wholly your primaries and secondaries are in direct metallic connection with each other. The only difference in the potential you would have would be due to the subtraction of the windings of the transformer, which would be a small amount." The witness was asked the further question:
"If this ground was insufficient and the primary and the secondary sides of the transformer were connected as Mr. Kratzer has described them here, what would be the effect upon a person who attempted to turn on a light in the pit?" Over objection he answered: I should say that he would be very apt to replace that defective ground with his body."
Mr. Noble, a graduate of and a former assistant professor of electrical engineering in the University of California, testified that 110 volts, the normal current in the lighting circuit at the Bergen plant, would not in his opinion injure a man in good health having a normal heart. He also gave it as his opinion that in the wiring of the Bergen place the method which had been followed was very unusual and dangerous. He said: "The danger lies in the fact that the primary or high voltage side and the secondary or low voltage side of the transformer are connected together and then are connected to a ground wire. The loosening of that ground wire or severing of that ground wire from its ground connections would immediately cause a considerable rise in the voltage between the secondary, low tension wires and the ground."
Professor Noble also testified as follows: "If the ground were totally deficient in this case and a person came in contact with the lamp-cord in the pit under the circumstances testified to in this case, he would get, in my opinion, in the neighborhood of two thousand eight hundred volts between the wires on the low-tension side and the ground, assuming that the ground connections became totally loose." He also inspected the ground wire and pipe or rod which were brought into court and gave it as his opinion that they would not make a good ground. This witness also examined the lamp cord and socket which had been found in the hand of the dead man, and gave it as his opinion that their conditions indicated the passage of a current of high potentiality greatly in excess of 110 volts.
This evidence fully supported plaintiff's theory that decedent met his death by reason of the faulty and negligent installation and operation of the system in use at the pumping station on the Bergen ranch.
There was no error committed by the court in refusing to admit defendant's by-laws in evidence. We can see no possible connection between said by-laws and the defendant's obligations to plaintiff's decedent. It is argued that they might have shown Mr. Bergen's duty to care for his own electric plant after its installation, but defendant's liability was based upon its negligence in putting in the pumping plant originally.
The amount of damages was not excessive. Appellant attacks the verdict upon the ground that Mr. Bergen's earning capacity was but fifty dollars a month, and counting his life expectancy as sixteen years, the greatest possible pecuniary loss would be about nine thousand six hundred dollars, assuming that his earning capacity would have remained the same if he had lived. The evidence showed, however, that he earned fifty dollars a month during about half of his working time and that the other half of his time was spent in conducting his ranch. The jury was justified also in considering the loss to the widow and the minors due to the deprivation of the comfort, society, protection, and support of the husband and father.
We find no error in the instructions. Appellant attacks instructions numbered 8, 9, 10, 11, and 12. The first of these related to the use of mortality or expectancy tables and was based upon an instruction approved in Harrison v. Sutter St. Ry. Co., 116 Cal. 156-168, [47 P. 1019]. The objection made to the giving of such an instruction is that it is applicable to the case of a man in good physical condition, while Mr. Bergen was the victim of a recent injury which had impaired his health. It is true that there was some evidence that he had suffered injuries in a runaway which occurred about two months before his death, but the physician who had treated him at that time described him as a "strong, hearty man" when the accident occurred.
Instruction number 9 related to the great care exacted of companies like defendant engaged in furnishing that dangerous commodity, electricity. The jurors were told that such a company is not an insurer, but where it affords "the means for the service," it is required to use "very great care." Appellant's counsel say that the instruction is erroneous because of the use of the expression "very great care." There is no force in this objection. ( Giraudi v. Electric Imp. Co., 107 Cal. 120-124, [48 Am. St. Rep. 114, 28 L.R.A. 596, 40 P. 108]; Tackett v. Henderson Bros. Co., 12 Cal.App. 658, [ 108 P. 151]; Fairbairn v. American River Electric Co., 170 Cal. 115-118, [ 148 P. 788].) The instruction is not open to the criticism that it would lead the jury to believe that defendant owned and controlled all of the instrumentalities for the application of electric power, including the machinery and wires of the pumping station itself. There was no question but that defendant had installed all of the instrumentalities owned and used by Mr. Bergen, and in that sense it had afforded means for the service. The instruction was approved by the supreme court of Alabama in Alabama City etc. R. R. Co. v. Appleton, 171 Ala. 324-331, [Ann. Cas. 1913A, 1181, 54 So. 638].
Defendant criticises the tenth instruction upon the ground that it failed to apprise the jury of Mr. Bergen's duty to exercise ordinary care, but the instruction in terms does state his duty in that regard. In brief, it informed the jury that if by reason of defendant's installation of dangerous connections and defective ground wires an excessive voltage of electricity was permitted to enter the drop-cord in the pit, and if plaintiff's intestate, "while using ordinary care," came into contact with the cord and was killed, plaintiff was entitled to recover.
The eleventh instruction stated the rule that if plaintiff had established by a preponderance of evidence the death of her decedent while he was exercising ordinary care, by an excessive and dangerous current furnished by defendant through the electric light wire, it then devolved upon defendant to show that the excessive voltage was not due to its negligence. This did not unduly extend the doctrine res ipsa loquitur as appellant complains that it did. Such control as Mr. Bergen exercised over the equipment of his pumping station could not have resulted in an increase of the voltage; therefore the presence of a death-dealing current in the wire through which defendant had contracted to furnish a current of 110 volts was sufficient to afford reasonable evidence of negligence on its part. It is the rule in this state that where electricity is furnished to a system installed and operated exclusively by the owner of the premises, the doctrine res ipsa loquitur has no application. ( Hill v. Pacific Gas and Electric Co., 22 Cal.App. 788, [ 136 P. 492].) But where the defendant in such a case had some control of the situation either by reason of its construction or its operation of plaintiff's plant, a showing of accident without plaintiff's fault shifts the burden of proof.
The jury was carefully instructed that the mere happening of the accident raised no presumption of defendant's negligence.
The twelfth instruction was in its material part a quotation of section 3281 of the Civil Code, defining damages. It had no tendency to impress the jury, as appellant fears, with the idea that the corporation was a law-breaker.
The final criticism of the instructions is that they unduly emphasized the matter of damages because seven of them made mention of that subject. No objection is urged to the substance of these instructions, but we are told that devoting so much attention to the matter of damages might well have led the jurors to believe plaintiff entitled to compensation. With equal force it might be said that the court's elaboration upon that subject might have caused jurors to devote great care to the consideration of the evidence before they could feel justified in awarding a verdict requiring defendant to pay damages. Defendant's point has the charm of novelty but possesses no substantial merit.
Other questions discussed in the briefs do not require consideration here, as they are substantially covered by that which is written above.
The judgment and order are affirmed.
Henshaw, J., and Lorigan, J., concurred.