Naki v. Hawaiian Electric Co. , 50 Haw. 416 ( 1968 )

OPINION OF THE COURT BY

LEVINSON, J.

The trial court, sitting without a jury, held the defendant, Hawaiian Electric Co., Ltd., liable for injuries the plaintiff, Mrs. Thelma Naki, sustained when she came in contact with her copper radio antenna wire, energized as a result of resting on a bare spot on her electric wires. The trial court found the defendant negligent on three grounds: its trouble shooter failed to inspect the plaintiff’s premises properly and thereby to discover the dangerous condition which resulted in the plaintiff’s injury; he failed to warn the plaintiff of the dangers which might exist; and he failed to turn off the power between the utility pole and the plaintiff’s house.

The judge orally announced that he would award the plaintiff $15,130, but the judgment filed May 13, 1964 was for only $5,130. The plaintiff filed a motion for reconsideration of the amount of damages. Following oral argument on May 25, 1964, the court orally denied the motion but did not enter a written order. The defendant filed its notice of appeal, and the plaintiff filed her notice of cross-appeal. We dismissed that appeal as premature and remanded the case to the trial court, 50 Haw. 85, 431 P.2d 943 (1967). The order was entered on April 17, 1968 and the case is now before us on the merits.

For the most part the facts are undisputed. The defendant maintains a utility pole on the side boundary of the plaintiff’s property, near the back boundary. The pole serves several houses by separate cables. The cable running to the Furtado house, in back of the plaintiff’s house, passes under a coconut tree in the plaintiff’s back yard. None of the other cables from the utility pole passes under the tree. The plaintiff had a bare copper radio antenna wire over the top of her house attached to a tree in front of the house and to the coconut tree in the back yard. A portion of the insulation on the plaintiff’s outdoor electric wire attached to the cable serving the plaintiff’s house had deteriorated and part of the electric wire was exposed.

It had rained the night before and the morning of the accident. The sky was cloudy and the ground was damp. On the morning of the accident, the plaintiff was awakened by a noise which probably was the sound of a cluster of about a dozen coconuts from the tree in the back yard striking the ground. From her window she saw that the Furtado’s electric service line had been knocked down. She believed that her electric stove was functioning improperly and called her husband to determine what to do. In accordance with his instructions, she went outside and turned off the switch at her meter box. This prevented current from flowing past the meter box into the house. It did not, however, de-energize her service line between the utility pole and the meter box. Mrs. Furtado told the plaintiff that she had called the defendant because she had no electric current. The plaintiff returned to her house to dress.

Within a short time, Mr. Ching, a forty-year employee of the defendant, arrived to investigate the Furtado’s loss of power. He discovered that the Furtado service line had been completely broken at both ends, apparently by the force of the falling coconuts. No current was running through the broken wire and there were no loose cables hanging from the pole. The wire on the ground was not dangerous and was not involved in the accident. Mr. Ching decided to determine whether any of the other service lines from the utility pole had been affected by the breaking of the Furtado line. From the Furtado yard he observed that the plaintiff’s line had not been broken. The plaintiff gave him permission to enter her yard to determine whether electricity was flowing between the pole and the meter box. In response to his question concerning the location of the meter box, she testified she told him she would show him and that she had turned off the current earlier. He testified she told him where the meter box was located and she said nothing about turning off the current.

After this brief discussion, Mr. Ching walked the short distance to the meter box at the back corner of the house. The plaintiff followed him, standing out from under the eaves. About the time when he closed the switch at the meter box he heard the plaintiff yell. She testified that she did not see the wire that touched her arm. There is no evidence indicating how she came into contact with the radio antenna wire. We can only assume that a gust of wind may have blown it against her, that she walked into it, or that she moved her arm into it. Mr. Ching did not touch the wire.

After attending to the plaintiff’s injuries, Mr. Ching returned to the plaintiff’s yard and discovered a thin, broken, uninsulated copper radio antenna wire hanging down from the eaves at the side and near the back of the house. He discovered that a portion of the outside wiring, which the consumer rather than the power company owned and was contractually responsible for maintaining, was deteriorated and exposed. The antenna wire, apparently broken by the same coconuts which broke the Furtado cable, had become wrapped around the bare spot and thereby had become energized.

Basis of Liability

To be held liable for the plaintiff’s injuries, the defendant, among other things, must have owed the plaintiff a duty, and it must have failed to fulfill that duty. We have long discarded the concept of liability without fault in connection with the furnishing of electricity.

At the outset it is clear that Mr. Ching’s throwing the meter box switch did not provide the current to energize the radio antenna wire. The portion of the electric wire which the radio antenna wire came into contact with and which energized it was controlled by a switch on the utility pole. The meter box switch had no control over the flow of current between the utility pole and the meter box.

Duty to Inspect

The trial court did not indicate clearly the nature of the duty to inspect which it found that the defendant failed to fulfill. It is well established that a power company owes no duty to inspect or to repair its customer’s wires. Minneapolis Gen. Elec. Co. v. Cronon, 166 F. 651 (8th Cir. 1908); Baker’s Adm’x v. Kentucky & W. Va. Power Co., 290 Ky. 38, 160 S.W.2d 360 (1942). The burden imposed on the company if it were required to inspect every customer’s privately owned wires and appliances would impair substantially the company’s ability to perform its vital function. It might well force the company to discontinue serving private residences. The defendant introduced uncontroverted evidence proving that the bare spot was on that portion of the wire owned and controlled by the plaintiff. If there was negligence in failing to discover and to repair the defective wire, it was the plaintiff and not the defendant who was at fault.

This is not to say that the defendant had no duty to conduct some other kind of inspection. The defendant had the duty to determine whether other cables attached to the same utility pole had been damaged by the break in the Furtado cable. But this duty was created by the facts then reasonably available, i.e., the breaking of a single service cable by a cluster of falling coconuts.

To determine whether the defendant failed to fulfill this duty, we must determine whether, under the facts available to him at the time, Mr. Ching acted reasonably in initiating his inspection at the plaintiff’s meter box. Mr. Ching was sent to investigate a power failure at the Furtado house, not at the plaintiff’s house. He arrived, found the broken and harmless cable, saw the cluster of coconuts, and saw that the plaintiff’s service line had not been broken. Even adding to this the fact that the ground was damp, we cannot agree with the plaintiff and the trial court that these danger signs were sufficient to warn Mr. Ching that the plaintiff’s thin, broken, radio antenna wire was in contact with the electric wire the plaintiff had permitted to become exposed. In discharging his duty to determine whether current was flowing between the utility pole and the meter box, Mr. Ching proceeded to the most accessible device for measuring the flow, the plaintiff’s meter box. This may have been only the first step in his inspection. He had been on the plaintiff’s property only a brief moment. Within that short period of time, nothing more could reasonably have been expected.

Duty to Warn

Mr. Ching’s failure to warn the plaintiff of the imminent danger must be judged by the facts he knew or as a reasonable man should have known at the time, “The culpability of the actor’s conduct must be judged in the light of the possibilities apparent to him at the time, and not by looking backward ‘with the wisdom born of the event’ ”. Prosser, Law of Torts, § 31, at 149 (3d ed. 1964); Ismert-Hincke Milling Co. v. Union Pac. Ry., 238 F.2d 14 (10th Cir. 1956); Gerber v. McCall, 175 Kan. 433, 264 P.2d 490 (1953). It is undisputed that he lacked actual knowledge of the existence of the radio antenna wire or the bare spot. The plaintiff contends, however, that Mr. Ching should have seen the antenna wire or that he should have gone around the yard searching for loose wires before turning on the switch at the meter box. As indicated above, we have rejected the argument that he was under a duty at that time to inspect the plaintiff’s electric lines or to search for miscellaneous wires which might have been knocked down.

When Mr. Ching requested permission to go onto the plaintiff’s property he neither knew nor should have known of any facts which would require him to warn the plaintiff of danger. There was no evidence of any electric storm which had knocked down other transmission or service lines. The only line he knew was down was the Furtado’s, and it had been broken by falling coconuts. No other electric lines passed under the coconut tree and the plaintiff’s service cable was not broken.

During oral argument on the original appeal, the plaintiff’s counsel argued that Mr. Ching should have seen the radio antenna wire since it was “right in front of his nose” when he reached the meter box. At that point, counsel contended, he should have had sufficient basis acting as a reasonable man to warn the plaintiff. But the plaintiff, as well as Mr. Ching, failed to see the radio antenna wire. The wire was thin and the sky was overcast. The wire was hanging over the eaves, extending several feet beyond the wall of the house where the meter box was located. In proceeding directly to the meter box, Mr. Ching did not pass the wire.

On the other hand, the plaintiff was standing behind Mr. Ching, out from under the eaves and looking back toward the house. If the wire was in front of anyone’s nose, it was the plaintiff’s. If anyone should have seen the wire, it was the plaintiff, who at least knew that such a wire existed. Moreover, only minutes before, she had been in the same area by herself when she turned off the switch at the meter box. Furthermore, the plaintiff testified that she looked around to make sure she was not standing near any wires. Obviously no warning of potential danger would have made her act any differently.

Duty to Turn Off the Power at the Pole

The trial court found that in exercising due care, Mr. Ching should have proceeded directly to the utility pole and turned off the electricity. An overwhelming number of cases hold, and we think properly, that a power company cannot be charged with negligence for failing to turn off the electric current in its line unless it had actual knowledge of the existence of danger, Hoffman v. Leavenworth Light, Heat & Power Co., 91 Kan. 450, 461-62, 138 P. 632, 636 (1914); Reichholdt v. Union Elec. Co., 329 S.W.2d 634, 637-38 (Mo. 1959), or at least had a reasonable basis on which to anticipate it, cf., Anderson v. Northern States Power Co., 236 Minn. 196, 201-03, 208, 52 N.W. 2d 434, 438-39, 442 (1952); Mirnek v. West Penn Power Co., 279 Pa. 188, 191, 123 A. 769, 770 (1924). As we have indicated, there was neither actual nor constructive knowledge of either the plaintiff’s defective electric wire or the plaintiff’s broken radio antenna wire. There was no basis on which Mr. Ching could have concluded there was any danger which would have been eliminated by turning off the current at the pole. A preferable course of action may become apparent based upon what actually transpired. But this hindsight is not the test to be applied in determining whether Mr. Ching acted reasonably.

Richard E. Stifel [Anderson, Wrenn if Jenks of counsel) for defendant-appellant, cross-appellee. John E. Parks and Hyman M. Greenstein for plaintiff-appellee, cross-appellant.

The findings of the trial court are clearly erroneous.

Reversed and remanded for entry of judgment for the defendant.