August 25, 1939, two chicken hawks flew into a 60,000 volt electrical transmission line being maintained by appellant, The Washington *Page 309 Water Power Company, a corporation, along the east line fence of Peter L. Beck, in places the fence being nailed to the transmission line poles. At the pole where the hawks flew into the transmission line the three wires of the fence were in direct contact with a metal guy wire fastened near the top of the pole and anchored in the ground some fifteen feet north of the pole, a space of 28 inches existed between the transmission wire and the guy wire at their closest point. The hawks flying into the line in some manner spanned this 28 inch space and caused a contact to be made between one of the transmission wires and the guy wire and the electrical current was thereby transmitted through the guy wire to the fence, an "explosion" resulted and fire was started in the grass and combustible material along the fences of Mr. Beck and along the fences of respondent, Irving Maxon Chase, Administrator with the Will Annexed of the Estate of Ella G. Libby, deceased, which fence was joined to the fence of Mr. Beck. The fire quickly spread to buildings and personal property of respondent Chase and consumed the same, for which respondent Chase sought judgment, on the ground of alleged negligence, for $2,900. Respondent Phoenix Fire Insurance Company intervened seeking judgment for $529.00 by reason of having paid respondent Chase that sum upon a fire insurance policy on some of the buildings destroyed.
Judgment was returned in favor of Respondent Chase for $1,000. and in favor of respondent Phoenix Fire Insurance Company for $529. From this judgment appellant prosecutes this appeal.
The assignments of error, that the court erred in not granting appellant's motion for nonsuit made at the close of respondents' case, and at the close of all the evidence, and appellants' request for an instruction directing the jury to find for the appellant, raise but one main contention, namely, that the evidence is insufficient to sustain a verdict and judgment for either respondent.
Respondent relies in the main upon the pronouncement of this court in Ellis v. Ashton St. Anthony P. Co., 41 Idaho 106;Younie v. Blackfoot Light Power Co., 15 Idaho 56; and Gagnonv. St. Maries Light Power Co., 26 Idaho 87, *Page 310 that electrical companies are held to the highest degree of care practicable to avoid injury to persons or property, which proposition is well established. Appellant urges, and correctly so, that it is not sufficient to show that an accident occurred; there must be some evidence of negligence. (Thomas v. Pocatello Power Co., 7 Idaho 435; Charles Le Deau v.Northern Pac. Ry. Co., 19 Idaho 711; Oklahoma Gas Electric Co.v. Wilson, 45 P.2d 750.) Considering these two propositions together and from an examination of the authorities it appears that although electrical companies are held to the highest degree of care practicable to avoid injury to persons or property, still there must be some evidence of negligence tending to show the electrical company has not exercised that degree of care practicable to avoid injury to persons or property. The inference, no one seeing what actually occurred, which the evidence tends to establish, is that two hawks while fighting and with claws interlocked flew into the wires spanning the not less than 28 inch distance existing between a charged wire and the guy wire thus closing the circuit and carrying the voltage down the guy wire to the fence. True, the possibility of such occurrence might have been eliminated by eliminating the guy wire or by eliminating the electrical line. There is no evidence that insulating the guy wire was either proper or would have prevented the occurrence. Had the distance between the guy wire and charged wire been increased there is still possibility of a sufficient number of hawks bridging the gap. The primary cause of the accident was the hawks making contact with the charged wire and the guy wire completing a circuit, and at a point close to the pole to which the wires were attached. There is nothing in the evidence to indicate that appellant was negligent in not foreseeing that two hawks might close the circuit in the manner inferred. It appears that the precaution taken by the industry is to protect the public by protecting its guy wires by maintaining ample spacing between them and the transmission wires. Such foresight as would have been required to anticipate the occurrence herein appears to be without the realm of probabilities and beyond the highest degree of care *Page 311 practicable to avoid injury to persons or property contemplated by the rule announced in Ellis v. Ashton St. Anthony P. Co.,supra. The contact made by the two hawks diverting the curent down the guy wire, which was the primary cause of the injury, was an unheard of freak accident that could not be foreseen or contemplated by the exercise of the highest possible degree of care and caution by appellant. The construction of the system was that universally used in the distribution of electric current and was in compliance with instructions received by the company for the building of its system. It was the freak contact made by the hawks, unheard of and unknown so far as we are able to find in a search of authorities, which caused the damage. The position in which the hawks were when they flew into the space between the charged wire and the uncharged guy wire, by no stretch of the imagination could have been anticipated or guarded against. There was no question of fact to submit to the jury because there was absolutely no evidence of negligence. It was solely and only a question of law for the court and the motion for nonsuit should have been granted. The effect of the majority opinion makes those engaged in the transmission of electrical energy insurers against any and all damage or injury which may result from its transmission and distribution.