I dissent from the determination of the validity of instruction 8. The second paragraph of that instruction informed the jury that, if they found that the stroke of lightning was an act of God, as defined above, such fact, if it be a fact, is a complete defense to appellant's right of recovery in this action, regardless of any duty that might have been placed upon respondent to install fuses in the entrance of tent No. 6, and regardless of the duty, if found to be a duty, of respondent to operate and maintain fuses and ground wires in their lighting system.
The bolt of lightning was an established and indisputable fact. The jury could not escape so finding. When, as they were told in that instruction, that if they found the bolt of lightning occurred, it would be a complete defense to appellant's right of recovery in this action regardless of any duty imposed upon respondent to install fuses at the entrance of the tent *Page 153 (even though the jury may have found such was the duty of respondent) and to maintain and operate this system by the use of fuses and ground wires, no verdict was possible other than one in favor of respondent.
The first and leading case, except insurance cases, as to liability for damage to a building by lightning conveyed by electric wiring appears to be Jackson v. Wisconsin TelephoneCo., 88 Wis. 243, 60 N.W. 430, 26 L.R.A. 101. It was there held that, where the testimony of the experts was conflicting, it was a question for the jury to determine as to the possibility that a bolt of lightning striking a flagstaff might be conducted by a wire to a building three hundred feet distant and burn it. It was there further held that a stroke of lightning is an act of God that does not relieve a person from liability for the burning of a building by lightning conveyed thereto by a wire with which he has negligently and without the owner's knowledge or consent connected it with the flagstaff on another building. During the discussion of that case, that court said:
"The further argument is made that the stroke of lightning was the `act of God,' for which no one is responsible. Certainly a stroke of lightning is an `act of God;' but that is not the question here presented, or rather another element — i.e. the negligence of man — is added to the question, which materially alters its scope. . . . The principle is the same as that involved in the case of Borchardt v. Wausau Boom Co.,54 Wis. 107, 41 Am. Rep. 12. The lightning stroke is in no greater degree the act of God than the usual freshet occurring in a river."
Another court says:
"`Loss by the act of God may be said to include all losses resulting immediately from natural causes without the intervention of man, and which cannot be foreseen and prevented by the exercise of prudence, diligence, and care, and the use of those appliances which the situation of the party renders it reasonable *Page 154 that he should employ.'" Southern R. Co. v. Smith, 125 Ky. 656,102 S.W. 232.
Other cases sustaining the same principle are Hubbard v.Olsen-Roe Transfer Co., 110 Ore. 618, 224 P. 636; Amend v.Lincoln N.W.R. Co., 91 Neb. 1, 135 N.W. 235; Central ofGeorgia R. Co. v. Hall, 124 Ga. 322, 52 S.E. 679, 110 Am. St. 170, 4 L.R.A. (N.S.) 898; Piqua v. Morris, 98 Ohio St. 42,120 N.E. 300, 7 A.L.R. 129; Feeney v. New York Waist House,105 Conn. 647, 136 P. 554, 50 A.L.R. 1539, and case notes;Peninsular Telephone Co. v. McCaskill, 64 Fla. 420, 60 So. 338, Ann. Cas. 1914B 1029.
In the last cited case, among other things, the court said:
"We are asked to take judicial knowledge of the fact that no known device can guard against the effects of a bolt of lightning, and therefore to say as matter of law, that the failure of the company to provide insulators or ground rods or other usual device, was not the approximate cause of the burning.. . .
"While the courts need not accept the opinions of experts as to physical facts, yet when the opinions of the experts agree among themselves and accord with the common observations of us all, we may accept them, especially when the party complaining of the result has called these same experts to support his theory.
"It is matter of common knowledge that lightning frequently plays along or near telephone lines and that our homes are secure though telephones are placed in them; rather than a menace a well installed telephone has come to be regarded a protection against the lightning's stroke. It may be true, that there is no protection against the destructive effects of a direct bolt of lightning of high voltage; but we must be wiser than we are, even after reading carefully the testimony of the experts of the plaintiff in error, to hold that the indirect effects of the indirect forces of a stroke of lightning may not be minimized and rendered harmless *Page 155 by those safeguards in such common use, and in so far as the evidence before us discloses such safeguards as have never failed to accomplish the uses for which they were designed.
"In holding that it is actionable negligence to fail to provide any safeguards we are in line with what we consider the great weight of authority."
Five cases are then cited to sustain the conclusion of that court. A contrary case, Phoenix Light Fuel Co. v. Bennett,8 Ariz. 314, 74 P. 48, was there stated to have been challenged, citing Joyce on Electric Law, Vol. 1, § 445f.
See, also, case notes to report of preceding case by editors of Ann. Cas.
Applying the principles of the above case and citations, we have, in this case, experts disagreeing as to whether devices can be and should be installed which can guard against the effects of a bolt of lightning, and that the failure of respondent to provide, install and maintain such devices was the proximate cause of the electrocution. Moreover, it seems to be undisputed in this case that respondent failed to provide any safeguards whatever to prevent atmospheric electricity or lightning from being carried into its tents by its lighting system. The principal safeguards were those provided by the power and light company, which supplied the current, at its transformer.
This is not a case of injury from the destructive effects of a direct bolt of lightning of high voltage. It is a case of alleged lack of reasonable, or any, care by the one maintaining the lighting system in providing reasonable safeguards against the lightning stroke.
The Topping case, supra, strongly relied upon by respondent, does not aid it in this situation; nor do the cases of Phoenix Light Fuel Co. v. Bennett, supra; nor Griffith v.Cole Bros., 183 Iowa 415, 165 N.W. 577, L.R.A. 1918F 923. The first of those cases *Page 156 has been criticized and generally disregarded. The second case involved a death by direct stroke of lightning.
The supreme court of California, in London Guarantee Accident Co. v. Industrial Accident Commission, 202 Cal. 239,259 P. 1096, 54 A.L.R. 1392, allowed recovery for the death of an employee under the workmen's compensation act against the industrial fund, although the death resulted from an earthquake, because he was compelled to work in a building of inferior construction, and the fall of the wall which killed him would not have occurred had the building been properly constructed. It was incontrovertibly established in that case that the earthquake of June 29, 1925, at Santa Barbara was the most serious disturbance of its kind that had occurred there during the history of that city of over one hundred years; that many apparently substantial buildings in the near vicinity of the one in which the workman was injured had been destroyed or severely injured as the result of that disturbance, and that some thirteen persons lost their lives as a result thereof; that the building where the injured workman was required to work was of very inferior construction or it would not have fallen during the earthquake in question. In the course of the opinion, the court said:
"While the earthquake, an act of God, may have contributed to the injury, yet it was not the sole cause of such injury, and except for the intervention of some human agency might not have produced any injury whatever."
The court then approved a definition, almost identical with ours, of the act of God:
"`The phrase has been otherwise defined as . . . an act of nature which implies entire exclusion of all human agency.'" *Page 157
See, also, Kuhnis v. Lewis River Boom Logging Co.,51 Wash. 196, 98 P. 655.
It is clear, under well-established legal principles, that the last paragraph of instruction 8 was wrong in law, misleading and prejudicial.
For that reason the judgment should be reversed and a new trial ordered.
TOLMAN and BEELER, JJ., concur with HOLCOMB, J.