Heber v. Puget SD. P. L. Co. , 34 Wash. 2d 231 ( 1949 )

I find it necessary, in order to make my position clear, that some additional facts be stated other than set out in the majority opinion. In stating these facts, I mention only those testified to by witnesses for the respondent.

The Hebers lived at 409 south Water street in the city of Ellensburg. The dwelling was about eighty-five feet from the place where Heber was killed. Heber, sixty-one years of age, formerly a rancher and service station operator, had worked in the city of Ellensburg for four or five years as a city employee, doing street work, fixing ditches, and cleaning streets.

The power line of appellant company ran along Manitoba street on the south side of the Heber property, and then turned at right angles and ran north along the alley along the rear west end of the Heber property. Sometime during the early morning hours of March 13, 1947, a middle bare wire of the three-wire span running from the pole at the southwest corner of the lot along the south side of the property, had broken from some unknown cause. The break occurred at a point close to the corner pole, with the result that the center wire fell to the ground below the pole, the end of the wire curling around the fence of a chicken yard located at the southwest corner of the Heber property. At approximately three o'clock on that morning, Mr. Heber awakened his wife and told her that he heard something. She got up and went to the back porch, which is located on the northwest corner. As she returned to bed, she heard what she termed "funny-like noises."

Later at five o'clock, she arose and, looking toward the southwest corner of the lot, noticed smoke in the vicinity of the bottom of the power pole. She then awakened her husband and told him that the noises they had heard earlier were from a broken wire. They went outside to see if they could find where it was broken. They returned to their house, where Mrs. Heber prepared breakfast. She then called Pat Hamilton, a lineman for the city light company, whose wires were also carried by the poles. She contacted Mr. Hamilton at 5:45, and he said that he would try to get in touch with the proper parties. He was able to contact Mr. Wines, one of appellant's linemen, at approximately twenty minutes to seven.

At about the same time, one of the respondent's daughters noticed some fire in the straw close to the chicken yard. Mrs. Heber said the fire was burning in the straw, and that a couple of poles were on fire. Others testified there was some straw burning there, and also that some boards were on fire. It is agreed the fire was not a large one, and, as Mrs. Heber said, the straw "was really too damp to burn. It just smoldered."

In spite of his wife's objections, Mr. Heber determined to put out the smoldering fire. He took a bucket of water from the kitchen sink in the house and walked with his wife to the chicken yard, where he threw the water on the fire. Mrs. Heber returned to the house and sent their son Harry with another bucket of water, which Mr. Heber threw on the straw. During this time, the electric wire was twisting about, sparking and "jumping all around." Heber cautioned his son to stand back, and then secured a 2x4, about six feet in length, walked around the chicken house and yard, out into the alley, and approached the base of the pole. He then tried to move the wire from the chicken yard to the light pole. As he was pushing the wire, it somehow came in contact with him, or came near his right arm, and this resulted in his death. As Heber fell, he dropped the 2x4, and his son, with the aid of Mrs. Heber, pulled him into the street.

It is my contention that Mr. Heber was guilty of contributory negligence as a matter of law, and that his wife cannot recover.

This court stated in North Coast Power Co. v. Cowlitz, C. C.R., 108 Wash. 591, 185 P. 615:

"It is, according to both reason and authority, the rule that what would be due care under certain circumstances would not be due care under other or different circumstances, and that, if anything in the surrounding conditions and circumstances reasonably suggests the necessity for an increase of care to avoid peril and damage, the duty to increase such care proportionately increases. This court, in Helliesen v. SeattleElec. Co., 56 Wash. 278, 105 P. 458, tersely said: `In determining the question of contributory negligence due care or ordinary prudence is the only known test.'"

Again we stated in Morris v. Chicago, M. St. P. Pac. R.Co., 1 Wash. 2d 587, 97 P.2d 119, 100 P.2d 19:

"The doctrine of contributory negligence is based upon the principle that no person is ever absolved from exercising reasonable and ordinary care for his own safety."

The general rule is stated as follows:

"One who has notice of the dangerous condition of a wire or other electrical appliance and voluntarily or recklessly brings himself into contact with it cannot hold the company for the resulting injuries, and this is true of any adult, although he is wholly unskilled in the handling of electricity. To give rise to this defense, however, it must be shown that plaintiff in coming in contact with the appliances voluntarily and unnecessarily or negligently exposed himself to danger." 29 C.J.S. 606, Electricity, § 53.

This statement is supported by twenty-three decisions of courts of last resort in thirteen states, and three Federal opinions.

It is not necessary in this case to adopt any new theory in order to decide this case. This court in Druse v. Pacific Power Light Co., 86 Wash. 519, 150 P. 1182, had before it facts so entirely alike to those in the present case that it is impossible to arrive at any other conclusion but that Mr. Heber was guilty of contributory negligence as a matter of law. In that case, Druse, a farmer, was moving a hay derrick under a high power transmission line belonging to the Pacific Power Light Company. The power line consisted of three high-tension wires, one set on the top of the pole, and one on each end of a cross-arm, a short distance below. There was a sag of four or five feet in the power wires.

The outfit which Mr. Druse was using was dragged about by two teams of horses. Druse attempted to move the derrick under the power line, when the top of the mast came in contact with some telephone wires which were under the power line. The force of the contact was such that the two poles were pulled together, allowing the power wires to sag far enough to come in contact with the derrick. The derrick was rigged with two wire cables, called the supporting cable and the pull cable. The one supported the arm of the derrick, and the other was used to pull the hay onto the stack. After coming in contact with the power line, the pull cable showed signs of electricity where it struck the ground. As the progress of the derrick was stopped by the wires, Druse attempted to lower the arm of the derrick by unloosening the supporting cable where it was attached to the cross-beam by a hemp rope. He took hold of the rope about a foot from the cross-beam, and then removed it from an iron hook. He then attempted to jerk the rope loose, but before making the pull, received a shock of electricity through the rope which resulted in his death.

The court, in further summarizing the evidence, said:

"We think the record will bear the stronger statement that there was a `rumbling' `crackling' `loud noise' and `blue flames' and a `spitting' of electricity which was `apparently continuous;' that sparks were flying from the metallic parts of the derrick, except the fall of the supporting cable — it showed a contact at the block at the top of the mast — and that the grass was burning where it came in contact with the pull cable, which was dragging 40 or 50 feet back on the ground. It was evidently Druse's idea that if the supporting cable, which was tied to the mast by a hemp rope, was released and the arm pulled away from the wire, that the derrick would be freed of the contact. . . .

"Admitting that respondent's wires were not high enough to permit a free passage of the derrick, we think Mr. Druse was clearly guilty of contributory negligence and that such negligence was the proximate cause of his death. The day was a clear day. There was nothing to obscure his sight. The derrick was moved slowly across the field. It must have been apparent to a casual observer that the clear way might be insufficient, in plenty of time to stop the derrick so as to avoid the contact. He might have done as he did the year before under a like condition, climbed the mast and passed the telephone wires over its top. Mr. Druse was a man of more than ordinary intelligence, and from all the prior circumstances must have known the danger of a contact with an electric current. . . .

"Up to this point decedent was in no danger. Indeed, he was charged with a higher duty to protect himself. It was then immaterial how the condition arose. It was enough that it existed. It was open, obviously dangerous and known to be deadly. Instead of keeping away from it until the company could be telephoned to cut off the current, as was done immediately after the accident, Mr. Druse, over the protest and warning of at least two of his men, deliberately set about to correct the situation, placing his hands within a few inches, or at most within a foot, of the hook on the end of the supporting cable, and within two or three feet of the log chain, which was spitting fire. . . .

"Can there be any difference in the minds of reasonable men as to the negligence of the deceased and the proximate and contributing cause of his death? In other words, with a danger open and obvious, can any one say that he acted as a prudent man should have acted under like circumstances?

"We find that deceased was guilty of contributory negligence as a matter of law."

Just before he was killed, Druse directed one of his employees to go into the framework of the derrick and untie the rope and let the arm down so they could proceed. The man refused, saying, "Not on your life. I wouldn't go in there for ten thousand dollars." Another one of the men said to Druse, when he was about to take hold of the rope, "keep away from there."

I now call attention to the following cases, with facts similar to those present in the case at bar, which support the reasoning of our Druse case:

In Billington v. Eastern Wisconsin R. Light Co.,137 Wis. 416, 119 N.W. 127, the facts showed that plaintiff, twenty-five years of age, saw some boys playing with a broken electric wire by placing sticks on the exposed end of the copper wire where it was stripped of its insulating covering. He walked to where they were, saw that the wire was emitting sparks and that it burned the sticks pressed against it. He stooped down, took hold of the wire with his left hand at the place where it was coated with insulating material, and some two feet from the exposed and sparking end, for the purpose of throwing it over the branch of a nearby tree. When his hand came in contact with the live wire, he was severely shocked and his hand badly burned. The supreme court of Wisconsin held that he was guilty of contributory negligence, and that he could not recover.

The facts in Glander v. Milwaukee Electric R. Light Co.,155 Wis. 381, 144 N.W. 972, showed that a fireman attempted to break or move a live wire with his hands. The court held that he was guilty of contributory negligence and that his widow could not recover.

The facts being almost identical with those in the last case, the court in Menden v. Wisconsin Electric Power Co., 240 Wis. 87, 2 N.W.2d 856, held that there was contributory negligence which precluded recovery.

In Croteau v. Twin State Gas Electric Co., 79 N.H. 515,112 A. 397, it appears that the plaintiff was injured by electric wires when he attempted to cut them with a pair of pinchers, around which he had wrapped his handkerchief. The court held that he could not recover because of his own contributory negligence.

The facts in Williams v. Metropolitan Edison Co., 267 Pa. 158,110 A. 92, were: A painter swung a scaffold beneath wires which came about six inches above his head, so that he was electrocuted when he voluntarily or involuntarily raised his hand. The testimony did not show how he came in contact with the wire. However, the court held that he was contributorily negligent in placing the ladder too close to the live wires. The supreme court of Pennsylvania held that the action should be dismissed.

In Chernuka v. Philadelphia Electric Co., 320 Pa. 193,182 A. 543, it appears that a man was electrocuted when he fell on a live electric wire, which, because of an electric storm on the preceding night, sagged near the ground. As he approached, he stumbled on a stone and fell on the wire. The court held that he was contributorily negligent and recovery could not be had.

The plaintiff in Morris v. Kansas City Light Power Co.,302 Mo. 475, 258 S.W. 431, had knowledge that the broken end of a live wire was hanging from a branch of a tree, and approached to within two feet of it. He was injured when the wire fell from the tree and struck him. The court held that he was guilty of contributory negligence as a matter of law and could not recover.

The court in Owensboro City R. Co. v. Winfrey, 191 Ky. 106,229 S.W. 135, held that a man was guilty of contributory negligence, which precluded recovery, when he attempted to unloosen from a wagon a team which was being shocked by electricity.

The court in Kentucky West Virginia Power Co. v. Brown'sAdm'x., 281 Ky. 133, 135 S.W.2d 70, held that one taking hold of an electric wire after asking another if there was any juice in it, and being informed that the person questioned did not know, was contributorily negligent as a matter of law, so as to bar recovery of damages from the power company for death resulting from electrocution.

The facts in Morton's Adm'r v. Kentucky-Tennessee Light Power Co., 282 Ky. 174, 138 S.W.2d 345, show that a state highway commission's employee was electrocuted when a steel rod, which it was found necessary to remove in the process of painting and repairing a bridge, came in contact with an electric wire, which, at the point of the accident, was eleven feet from the bridge and which was maintained on the power company's right of way, almost parallel with the bridge. The rod had been loosened and the employee was pulling it across with the end protruding far over to the side of the bridge in order that it could be passed beneath the intersecting rod and be lowered to the floor. In extending it back, the rod came in contact with the electric wire and the employee was electrocuted. The trial court directed a verdict for the defendant upon two grounds, one of which was that the workman was guilty of contributory negligence. The court of appeals of Kentucky affirmed the action of the trial court.

The supreme court of Arkansas in Gullett v. Arkansas Power Light Co., 208 Ark. 44, 184 S.W.2d 819, held that decedent, who met his death by electrocution while attempting to row a boat beneath high-tension wires which he knew were dangerous, at a point where the wires were only eighteen to twenty-four inches above flood waters, was guilty of contributory negligence, and that the owner of the power line was not liable for the death.

The trial court in Aller v. Iowa Electric Light Power Co.,227 Iowa 185, 288 N.W. 66, directed a verdict for the defendant. The facts in that case showed that a farmer, who was attempting to connect a cable to the end of a hay carrier track on a barn, knowing that the closest wire of the electric transmission line was between eighteen and nineteen feet from the barn and that the wires were not insulated, and who was looking directly toward the place where the cable came in contact with the transmission line, was guilty of contributory negligence as a matter of law in drawing the cable in contact with the transmission line, and could not recover for his injuries. The action of the trial court was affirmed.

In Bartuluci v. San Joaquin Light Power Corp., 21 Cal. App. 2d 376,69 P.2d 440 (2d case), it was held that a farmhand was contributorily negligent as a matter of law so as to preclude recovery from the power company for electrical burns, where the top of the boom of a hay derrick caught on an overhead power line and the farmhand took hold of a steel cable hanging down from the boom to pull the boom away from the power line.

The court in Dresser v. Southern California Edison Co.,28 Cal. App. 2d 510, 82 P.2d 965, held that a laborer who knew of the proximity of high-power transmission lines to an electrically-driven pump, but who, without regard to the wires, raised the pump rod until it contacted the exposed wires overhead, was not entitled to recover from the power company for burns received because of his own contributory negligence.

These cases indicate the attitude of all of the courts, including our own, which is that one who approaches a live electric wire does so at his own risk, regardless of the instruments he may use to protect himself.

The use of electric energy in the industries and the arts, in communication and transportation, for lighting and for motive power, in the house, the shop, the factory and the foundry — in the city and the country — is so universal that knowledge of its dangerous qualities and characteristics must be assumed to be common to all persons of normal intelligence and experience; so that, where such a person voluntarily comes into contact with, or approaches nearer than a reasonably prudent person would, to a wire or other thing which he knows, or as a person of ordinary knowledge and experience has reason to believe, is sufficiently charged with electricity to be dangerous, and, in consequence of such contact or proximity is shocked and injured, it will be assumed as a matter of law that his own negligence contributed to the accident. Shade v. Bay Counties Power Co., 152 Cal. 10,92 P. 62; Stackpole v. Pacific Gas Electric Co., 181 Cal. 700,186 P. 354; Bartuluci v. San Joaquin Light Power Corp.,supra.

Mr. Heber was a man of mature years, with much experience in the manner in which business is conducted. He had been in Ellensburg for five years, working on the streets, and knew that electric wires were dangerous to handle. He moved into a dangerous situation when he attempted to move the wire with a piece of lumber. He approached the sparking, jumping, twisting wire in the face of warning from his wife, and after he had instructed his son to stay behind him.

It is surely unjust for the appellant company to be charged with the foolhardy act of this man. The majority seek to excuse Mr. Heber's action by contending that a situation existed which would prompt a reasonable man to act in order to save endangered property from damage or destruction. Several cases have been cited to uphold this theory. The facts in those cases are so entirely different from the one at bar that I must call attention to the contents of at least two of them.

In Leavenworth Coal Co. v. Ratchford, 5 Kan. App. 150,48 P. 927, the facts were: A storm occurred in the city of Leavenworth, Kansas, and ceased about four o'clock in the morning. About six o'clock in the morning, the person injured had his attention called to the fact that his stable or shed in the rear of the premises was on fire. He went to the door of his residence and discovered that one of the wires of the electric light company had broken, and a part of it had fallen across the roof of his shed, from which was issuing sparks and a blaze of fire, apparently endangering his building. He immediately, without any hesitation, picked up a baseball bat, ran out to his shed, and pushed the wires off the building onto the ground. In falling, the wire in some way came in contact with him and he was severely injured.

It appears in Temple Electric Light Co. v. Halliburton, (Tex.Civ.App.) 136 S.W. 584 (Motion for rehearing denied, 104 Tex. 493,140 S.W. 426), that a man came home, attempted to use his telephone, received a slight shock, and then discovered that the wire was emitting sparks. He took pliers to cut the wire and was stricken with a current of electricity, which caused his death in a few minutes. Evidence showed that he cut the wire for the preservation of his home from fire, and that he believed he was in no danger. It must be borne in mind that his act of cutting the wire was immediately after he had attempted to use the telephone.

I have no quarrel with the rule as laid down in these cases, but in their application to the facts as presented in the present case.

The situation in the case at bar is very similar to that which confronted the plaintiff in Barnett v. Des Moines Electric Co.,10 F.2d 111. It appears in that case that the plaintiff Barnett was eating dinner about 7:30 when the lights went out. He went outside and observed that the wires strung in front of his house had broken. One had fallen across the pavement and doubled back in a semicircle in front of his house. Some distance away, several children were playing, and plaintiff decided that the sparking, live wire in the street was a menace to those children. (That element is not present in the case at bar.) Then defendant placed a napkin around the wire, picked it up, and started to carry it over to the sidewalk and out of the street. He moved the wire across the avenue to the curbing, and then received a severe shock when he stepped onto the parking strip. He testified that he was trying to save the children because he knew that the line was charged and sparking, but that he had in mind that the napkin was sufficient protection.

The court said:

"It is well settled as a general rule that, where a person with knowledge of the dangerous character of an electric wire purposely comes in contact with it, he is guilty of contributory negligence and cannot recover for the resulting injury. [Citing cases.] . . .

"In the instant case, the plaintiff knew the wire was an electric light wire. He was attracted to the scene by the electric lights going out in his house. He saw it emitting a glow at the pole to which the other end was attached. He believed it to be dangerous to touch, because he gave as his reason for attempting to remove it his fear that the children might come in contact with it and be injured. He appreciated it was dangerous, because he undertook to test it with his fingers before taking it into his hands. He devised his own method of protection, to wit, the linen napkin folded about the insulation. There was no impending danger to any other person. The circumstances required no hasty or ill-considered action. He had time for deliberation and reflection. He voluntarily seized a dangerous electric wire in his hands and undertook to carry it out of the street. Such being the undisputed facts, we cannot say that the learned District Judge erred in holding that plaintiff was guilty of contributory negligence as a matter of law, precluding his recovery."

In that case, reference was made, as is made here, to the emergency rule and the cases which had been cited touching upon the acts of persons, during emergencies, when they attempted to move electric wires to save human lives or rescue persons in danger. In discussing that type of case, the court made the following remarks:

"In the Eckert Case [Eckert v. Long Island R. Co., 43 N.Y. 502, 3 Am. Rep. 721], as stated by the court, plaintiff's intestate had no time for deliberation. He was called upon to act instantly. A moment's delay would have been fatal to the child. No such condition existed in the case at bar. Not only did plaintiff have time for reflection, but he did reflect. He folded a napkin about the wire. He tested the wire with his fingers. He then seized it and commenced to carry it across the street. The children, whom he sought to shield according to his own testimony, were 25 or 30 feet from the place where he picked up the wire. They were not approaching the wire. They were in no immediate danger of coming in contact with it. His act was to guard against future possible danger to the children, and not danger that was imminent, calling for immediate action, and giving no time for reflection or consideration.

"The distinction between the instant case and the Eckert Case exists in practically all the cases cited and relied upon by counsel for plaintiff."

In studying the cases cited, it will be found that the rule relative to acting in an emergency takes into consideration the time element — that is, that the party injured did not have time to reflect but acted instantly, with the idea in mind of protecting human life or property. That is not present in the case at bar. Heber knew that something was wrong about three o'clock in the morning. Later, at five o'clock, he was told by his wife that the noises came from a broken wire. He then went outside and made an investigation, found a wire broken, and returned to the house. They then called a lineman for the city light company at 5:45. It was about that time that it was noticed there was some fire in the straw close to the chicken yard. Mr. Heber did not act in an emergency, but had plenty of time for deliberation.

The emergency rule does not apply when an attempt is made to rescue property in the face of an obvious danger such as no reasonably prudent person would, under like circumstances, incur. No one should be permitted to recover for injuries sustained in attempting to protect mere property in the face of obvious danger. Heber's act was not done in an emergency, for, at the time he performed the act of attempting to remove the wire, no emergency existed. Too, there is a clear distinction between the risk which a man may take in rescuing his property and saving human life. And in the case of property exposed to danger by the negligence of another, he must not act recklessly, but with such prudence as the circumstances will admit of; and the plaintiff cannot invoke even that rule of emergency where the property is imperiled by his own negligence.

This rule is well established by the case of Foster v. NewYork Central R. Co., 115 W. Va. 682, 177 S.E. 871. There the deceased was fatally injured in attempting to urge his cow from the railroad track of the defendant in view of an approaching passenger train. The court considered the question so well, and stated the proposition so clearly, that I quote from it as follows:

"No one should be permitted to recover for injuries sustained in attempting to rescue mere property in the face of obvious danger such as no reasonably prudent man would, under the circumstances, incur. 20 R.C.L. 133. In Eckert v. Long IslandRailroad Co., 43 N.Y. 502, where damages were sought for the death of one struck and killed by a train of the defendant while he was rescuing a child from the track, the court said: `The evidence showed that the train was approaching in plain view of the deceased, and had he for his own purposes attempted to cross the track, or with a view to save property placed himself voluntarily in a position where he might have received an injury from a collision with the train, his conduct would have been grossly negligent, and no recovery could have been had for such injury. * * * The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons. For a person engaged in his ordinary affairs, or in the mere protection of property, knowingly and voluntarily to place himself in a position where he is liable to receive a serious injury, is negligence, which will preclude a recovery for an injury so received; but when the exposure is for the purpose of saving life, it is not wrongful, and, therefore, not negligent, unless such as to be regarded either rash or reckless.' In Morris v. Lake Shore M.S. Ry. Co., 148 N.Y. 182,42 N.E. 579 (an action to recover damages for the death of a person killed by a railroad train while he was attempting to drive his cattle across the track), the court, answering the contention of plaintiff that the decedent was justified in placing himself in a position of danger to rescue his property from injury or destruction, stated: `We think the principle contended for cannot be sustained. In Eckert v. Railroad Co.,43 N.Y. 502, it was in effect held that a person could not place himself in a situation of danger simply for the protection of his property without being guilty of such negligence as would preclude his recovery.'"

Other cases approving this rule are: Pike v. Grand Trunk R.Co., 39 Fed. 255; Seale v. Gulf, Colorado Santa Fe R. Co.,65 Tex. 274, 57 Am. Rep. 602; Cook v. Johnston, 58 Mich. 437,25 N.W. 388, 55 Am. Rep. 703; Hinchy v. Manhattan R. Co., 49 N Y Super. Ct. 406; Berg v. Great Northern R. Co., 70 Minn. 272,73 N.W. 648, 68 Am. St. 524; Deere v. Southern Pac. Co., 123 F.2d 438 (Certiorari denied — 315 U.S. 819,86 L. Ed. 1217, 62 S. Ct. 916); Gwaltney v. Kansas City Southern R.Co., 339 Mo. 249, 96 S.W.2d 357; Morgan v. Treadwell,23 Tenn. App. 100, 126 S.W.2d 888.

The evidence produced in this case shows conclusively that Mr. Heber was guilty of contributory negligence as a matter of law. The case should be dismissed.

In any event, the statement made by the majority that the presumption of due care can only be overcome by "the testimony of disinterested witnesses" is incorrect.

Subsequent to the decision in Morris v. Chicago, M. St. P. Pac. R. Co., 1 Wash. 2d 587, 97 P.2d 119, 100 P.2d 19, this court decided that presumption may be overcome by the competent evidence of either interested or disinterested witnesses. See, Bradley v. S.L. Savidge, Inc., 13 Wash. 2d 28,123 P.2d 780; Carlson v. Wolski, 20 Wash. 2d 323,147 P.2d 291; Hanford v. Goehry, 24 Wash. 2d 859, 167 P.2d 678;Pickering v. Hanson, 28 Wash. 2d 603, 183 P.2d 487; Rolettov. Department Stores Garage Co., 30 Wash. 2d 439,191 P.2d 875.