1 Reported in 208 P.2d 886. This action was brought by Grace E. Heber, in her capacity as administratrix of the estate of Harry Heber, deceased, against the Puget Sound Power Light Company to recover damages for the death of her husband as the result of alleged negligence on the part of the defendant in the manner in which it maintained a part of its electrical distribution system in the city of Ellensburg, Washington. The case was tried before a jury and resulted in a verdict in favor of the plaintiff. This appeal is from the judgment entered on the verdict.
There is evidence in the record which, if believed by the jury, was sufficient to establish the following facts: The Puget Sound Power Light Company, as a part of its distribution system of electrical energy in the city of Ellensburg, Washington, maintained a power line along a public street in the city, which ran in an easterly and westerly direction to an alley and thence northerly along such alley. The decedent and his wife were the owners of the adjacent property, upon which was located their dwelling house and a chicken house, the latter building being a wooden structure situated in close proximity to the electric line, both in the street and alley. The transmission line consisted of three wires on cross-arms attached to poles. The wires were all on one side of the poles and about eighteen inches apart. The two outside wires were weatherproofed, but the middle wire was not covered. The line carried approximately 69,000 volts. The wires had been in use for many years, and some months before the date of the death of the decedent, they had been transferred to another set of poles. This transfer was made without turning off the current, and thus no substantial inspection was made of their general condition. *Page 234
The wires had considerable sag. There was evidence to the effect that, if wires have too much sag, they tend to sway with the wind. When contact or near contact is made between wires, an arc is formed, and the wires may melt or become pitted and their strength consequently impaired. On three occasions, not long prior to the happening of the accident in question, one of the wires broke and fell to the ground. The appellant did not provide a ground-detecting device as required by statute.
Some time during the night of March 12, 1947, or in the early morning of March 13th, the uncovered wire broke and fell to the ground. At about two-thirty a.m., a flash was observed by a person who was then about five blocks away.
Mrs. Heber arose early and observed that the electric line was broken, and efforts were made to notify appellant, but without success. Shortly before seven a.m., fire was observed in close proximity to the chicken house. Mr. Heber threw two buckets of water upon the fire, but it was not extinguished. He then picked up a 2"x4" timber, about six feet long, and attempted to move the broken wire, which had come in contact with a wire fence. The wire was emitting sparks and was in active motion. The movements of Mr. Heber were observed by the members of his family. While Mr. Heber was attempting to move the end of the wire with the 2x4, he either came in contact with it or in such close proximity to it that an arc was formed, causing his death. None of the eye-witnesses was able to tell just what happened the moment before the accident occurred. There was evidence with reference to other relevant facts, but we deem the foregoing a sufficient statement for the purposes of this opinion.
The acts of alleged negligence, which we deem material and which have support in the evidence, are: (1) that the wires were old, badly worn, and of insufficient strength; (2) that, when they were moved to the place where they were strung at the time of the accident, they were not properly inspected and were allowed to sag to such an extent that prevailing winds might cause them to come together *Page 235 and the current arc from one wire to another; and (3) that the appellant did not provide a ground-detecting device in its distributing system, as required by Rem. Rev. Stat., § 5435 [P.P.C. § 692-1].
The appellant timely moved the court for a judgment of nonsuit, for a directed verdict, and for judgment notwithstanding the verdict, or, in the alternative, for a new trial. It assigns as error the refusal of the court to grant its respective motions, the giving of certain instructions, and the exclusion of evidence. The further claim is made that the damages awarded were excessive.
In support of its claim of error in the refusal of the court to grant its several motions, the appellant contends that there was a failure of proof of negligence on its part, and that the decedent was guilty of contributory negligence as a matter of law.
[1] The measure of care required by law of those engaged in the business of transmitting electricity, with reference to the construction and maintenance of their lines, is that of reasonable care, that is, such care as a reasonable man would use under the circumstances. The amount of care needed to satisfy this standard necessarily varies, but it must be commensurate with the danger involved. Where the wires installed and maintained by a carrier of electricity convey a strong and powerful current, highly dangerous to persons coming near to or in contact with them, the law imposes upon such carrier the duty of exercising the utmost care and prudence, consistent with the practical operation of its plant, to prevent injuries; and this is especially true in populous places, because the danger is great and the care exercised must be commensurate with it. These principles of law were recognized and applied in Scott v.Pacific Power Light Co., 178 Wash. 647, 35 P.2d 749. A very concise statement of the applicable rules appears in 18 Am. Jur. 443, Electricity, § 48.
[2] We find sufficient evidence in the record of actual and statutory negligence to justify the action of the court in submitting the case to the jury and in its denial of the *Page 236 motion for judgment notwithstanding the verdict on this branch of the case.
The appellant contends that the circumstances under which the decedent attempted to move the charged wire, testified to by members of his family, coupled with existing physical facts, show conclusively, and as a matter of law, that he was guilty of contributory negligence and that such negligence was a proximate cause of his death. The trial judge was of the opinion that the question of contributory negligence was a factual one for the jury to determine. In our consideration of the question presented, we recognize that it is very hazardous for a person to attempt to handle a highly charged electric wire that has broken and fallen to the ground, and that such person is bound to appreciate and foresee that injury to him may occur if he does so. With this thought in mind, we have examined the cases cited by counsel for both parties.
The decisions of the courts in many of the cases seem to turn upon the existence or nonexistence of a combination of two elements: (1) a situation which might prompt a reasonable man to act in order to save endangered property from damage or destruction, and (2) the method or means used in handling the charged wire.
[3] If there is evidence that the property of a person is endangered by a fallen charged wire, and that, in making an effort to prevent danger to it or loss thereof, he adopts a method or means which a trier of fact might consider reasonable and proper under the circumstances, then the question of whether such person was negligent is one for the jury to determine.Bricker v. City of Troy, 315 Mo. 353, 287 S.W. 341;Leavenworth Coal Co. v. Ratchford, 5 Kan. App. 150,48 P. 927; Temple Electric Light Co. v. Halliburton (Tex.Civ.App.),136 S.W. 584 (Petition for rehearing denied, 104 Tex. 493,140 S.W. 426).
In many of the cases where it has been decided that the injured person was guilty of contributory negligence as a matter of law, either one or a combination of the following factors was present: (1) there was nothing to prompt him *Page 237 to enter the zone of danger; (2) the handling of the live wire was by a bare hand, a handkerchief, a pair of metal pliers wrapped with a handkerchief, a napkin, a woolen cap, a gloved hand, and so forth; or (3) some part of the body was placed in such close proximity to the danger that injury was inevitable.Druse v. Pacific Power Light Co., 86 Wash. 519,150 P. 1182; Billington v. Eastern Wisconsin R. Light Co.,137 Wis. 416, 119 N.W. 127; McNamee v. Western Union Tel. Co., 125 N YS. 622, 140 Ohio App. Div 874; Croteau v. Twin State Gas Electric Co., 79 N.H. 515, 112 A. 397; Barnett v. Des MoinesElectric Co., 10 F.2d 111; Capital Gas Electric Light Co.v. Davis Adm'r, 138 Ky. 628, 128 S.W. 1062; Glander v.Milwaukee Electric R. Light Co., 155 Wis. 381, 144 N.W. 972;Menden v. Wisconsin Electric Power Co., 240 Wis. 87,2 N.W.2d 856; Williams v. Metropolitan Edison Co., 267 Pa. 158,110 A. 92; Owensboro City R. Co. v. Winfrey, 191 Ky. 106,229 S.W. 135; Morris v. Kansas City Light Power Co., 302 Mo. 475,258 S.W. 431.
[4] In the case at bar, there was evidence tending to show that the property of the decedent was in imminent danger of damage or destruction by fire generated by the live electric wire, and the means employed to handle the wire, the six-foot wooden 2x4, proved effective and safe when later used by another person to move the same wire. Although there may not have been such a sudden emergency as existed in some of the cited cases, nevertheless we are of the opinion that reasonable minds might differ on the question of whether, under the circumstances, the decedent acted as a reasonably prudent person in his desire to save his property from damage or destruction, and in the choice of instrumentality used to move the wire to a place where it would cause no damage to such property. The question of contributory negligence was properly submitted to the jury.
The appellant assigns as error the giving by the court of the following instruction: *Page 238
"You are instructed that when a person is killed in an accident and can not be present and testify in an action brought on account of his death, the law presumes he exercised the care required of him to avoid the accident and was not guilty of contributory negligence. Presumption can only be overcome by the evidence of disinterested witnesses."
The instruction in and of itself was in accord with the law as declared in Morris v. Chicago, M. St. P. Pac. R. Co., 1 Wash. 2d 587, 97 P.2d 119, 100 P.2d 19. The question presented is whether the instruction was applicable to the situation disclosed by the evidence.
[5] The rule is based upon the idea that human experience has demonstrated that every person will use due care for his own safety, and therefore when a person is killed in an accident and there is no evidence to show what he did or did not do immediately preceding it, the law indulges in a presumption that the decedent had used due care. The presumption is not evidence, but serves in the place of evidence in favor of one party or the other until prima facie evidence has been introduced by the opposite party. The presumption may be overcome by the testimony of disinterested witnesses. Morris v. Chicago, M. St. P. Pac.R. Co., supra, and cases cited in the opinion.
The argument advanced by appellant as to why the instruction should not have been given is that, since all of the facts existing at the time of, and immediately prior to, the happening of the accident were testified to by witnesses produced by respondent, therefore the presumption of due care was overcome, and the jury should not have been permitted to have indulged in such a presumption. On the other hand, the respondent contends, in support of the instruction, that none of the eye-witnesses testified as to the acts of the decedent immediately prior to his coming in contact with the live wire, and cites authority to the effect that, if at any time there is a period, no matter how brief, during which the conduct of a decedent was not observed by an eye-witness, the presumption of due care must be submitted to the jury. *Page 239
There would be much force to this argument if the appellant were claiming that the alleged contributory negligence of the decedent consisted in the manner in which he used the 2x4 with which he attempted to move the live wire to a place where it would not do damage to his property. But, as we understand the appellant's contention, it is that the decedent was negligent in knowingly and deliberately entering into a zone of utmost danger without any emergency created by imminent danger to property. The eye-witnesses testified as to all of the movements of the deceased in his approach to and entry into the claimed zone of danger, and therefore the question for the jury to consider was whether doing this and doing what he did in his attempt to protect his property amounted to negligence on his part, contributing to and proximately causing his death.
In this connection, there is some suggestion made that Mrs. Heber, the children, and a visiting friend who saw and testified to the movements of the decedent were not disinterested witnesses, and that, therefore, their testimony could not be used to overcome the presumption. In so far as Morris v. Chicago, M.St. P. Pac. R. Co., supra, declares that the presumption of due care may not be overcome by testimony given by interested witnesses, it is possibly open to criticism. In the case ofBradley v. S.L. Savidge, Inc., 13 Wash. 2d 28, 123 P.2d 780, this court held that the presumption that the driver of an automobile involved in an accident was the agent of the owner and acting within the scope of his authority, arising out of proof of ownership of the automobile, may be overcome by competent evidence from either interested or disinterested witnesses, providing that their testimony is uncontradicted, unimpeached, clear, and convincing. However, it is unnecessary for us to review the Morris case and to decide whether or not this holding should apply to the presumption of due care with which we are here concerned, for, in our opinion, these witnesses were not "interested," within the meaning of the Morris rule. *Page 240 [6] Ordinarily, it will be found that, when reference is made to interested or disinterested witnesses, whose testimony may or may not overcome the presumption of due care, they are witnesses produced by a defendant whose interest lies in defeating the presumption. In this instance, however, the witnesses were produced by the plaintiff, whose case would benefit by its submission to the jury. It seems quite clear to us that such a presumption may very effectively be overcome by the testimony of those in whose favor it would otherwise run.
[7] We are, therefore, of the opinion that the above-quoted instruction was inapplicable to this case, and that it was error to give it. The instruction was prejudicial to the appellant, in that it gave the jury the opportunity to find that the decedent was not guilty of contributory negligence by merely indulging in the presumption, regardless of how it might otherwise have weighed his conduct.
One of the assignments of error is with reference to an instruction upon the conduct of one who acts in a sudden emergency, and it urged that no such emergency was shown to have existed to justify the giving of such instruction. We find merit in some of the criticism made by appellant of the wording of the instruction, but, as a new trial is to be granted upon another ground, it is not necessary for us to decide whether the giving of the instruction in the language used constituted reversible error. The instruction may have given the jury the impression that an emergency existed, and also that the decedent was entitled to protect his property when it was endangered by fire.
It appears to us that the third paragraph of the instruction might better have been prefaced by informing the jurors that, if they believed from a preponderance of the evidence there was such imminent danger to the property of decedent as might prompt a reasonably prudent person, having due regard for his own safety, to act in order to save his property from damage or destruction, they would have a right to take that situation into consideration in determining the question of contributory negligence, rather than to assume *Page 241 that an emergency existed. We do not desire to direct the wording the court should use, but merely suggest a manner in which the instruction may be improved so as to meet the objection thereto, which we believe has merit. The third paragraph of the instruction was proper, but should not be prefaced by words indicating that an emergency did in fact exist.
The appellant assigns as error the giving of instruction No. 5 as follows:
"You are instructed that it was the duty of the defendant to exercise the highest degree of care in the construction, maintenance, inspection and in the use of proper electrical appliances to insure the safety of those in lawful proximity of the same. You are instructed that the defendant had the duty to inspect its lines at reasonable intervals and mend and keep them in repair.
"You are instructed that the defendant had the duty to properly install its electric lines and use wire that was in good condition and to see that said lines are not permitted to sag, and have proper tension upon them, and that they install the cross arms on their poles in a proper manner.
"You are further instructed that if you find that the defendant made repeated repairs to its lines in the vicinity where Harry Heber was killed, then the defendant is charged with the express notice of the condition which brought about the break in the line causing Harry Heber's death, and if you find from the preponderance of the evidence that the defendant was negligent in any of these respects and such was the proximate cause of the death of Harry Heber, then your verdict should be for the plaintiff, unless you also find that the decedent Harry Heber was guilty of contributory negligence as defined in these instructions."
[8] The appellant argues that, by the first sentence of the instruction, the court informed the jury that the appellant was an insurer of the safety of those in lawful proximity to its wires. In the language used, the court was informing the jury as to the measure of care the appellant must have exercised in connection with the maintenance of its electrical distribution system, and considering this in connection with instruction No. 8, by which the jury was instructed *Page 242 that the appellant was not an insurer of the safety of the decedent, we do not think any reversible error was committed.
[9] It is also urged that the second paragraph of the instruction improperly submitted to the jury the duty of inspection, the duty to use wire in good condition, and the duty to install cross-arms properly. There was evidence in the record justifying the instruction with reference to the duty to inspect the lines and the use of wire in good condition, but we find no substantial evidence that there was anything wrong about the cross-arms. The respondent made complaint that rope was improperly used to maintain two cross-arms in a horizontal position, but we find nothing showing any causal connection between that situation and the falling of the wire.
The appellant contends that there is an inconsistency between instruction No. 5 and instruction No. 7, in that instruction No. 5, in effect, informs the jury that appellant had notice of the conditions causing the wire to break by reason of previous breaks, while instruction No. 7 informed the jury that, if it found that the wire broke and fell during the hours of darkness, preceding, by a few hours, the death of the decedent, and further found that neither the defendant nor any of its employees or agents knew, or by the exercise of reasonable diligence should have known, that such wire had broken and fallen, then its verdict should be for the appellant.
[10] The two instructions cannot be said to be inconsistent because they relate to different subjects. Instruction No. 5 deals with notice of the defective condition of the wire which caused it to break, while instruction No. 7 deals with notice of the breaking of the wire causing the death of the decedent. In this connection, it is well to have in mind that whether notice, actual or constructive, is required as a condition precedent to liability, depends upon the existence of negligence upon the part of the one causing that which brought about the accident of which complaint is made. If the breaking of the wire was due to the negligence of *Page 243 appellant, of which previous similar breaks would be evidence, then notice of any kind, either actual or constructive, of this particular break, would not be necessary. The same rule would apply to the condition to which instruction No. 7 was directed. If the break could not have been anticipated and the charge of negligence were based solely upon the failure to promptly shut off the current or remove the wire so that it could not do injury, then proof of notice would be required; but if it were found that the appellant was negligent in the maintenance of the wire that broke, neither notice of its defective condition nor that it had broken would be necessary.
In the case of Murray v. Seattle, 96 Wash. 646, 165 P. 895, the city of Seattle was charged with negligence in not removing an obstruction consisting of fallen wires across a street. The city claimed it was not liable to an injured traveler because it did not have notice of such obstruction prior to the injury. In that case, we said:
"If the sole negligence relied on by plaintiffs had been that of the failure of the defendant to remove the obstruction within a reasonable time after knowledge, actual or constructive, of its existence, we would be inclined to hold that the evidence was not sufficient. But it must not be overlooked that it is alleged in the complaint, and there is substantial evidence in the record to sustain the allegations, that the defendant was guilty of negligence which caused the obstruction to be in the street. In such case the condition complained of is due to the act or neglect of the city itself, and no notice of any kind, either actual or constructive, is necessary. It is only in cases where the negligence relied on is the failure of the city to remove an obstruction or to repair a defect in the street not caused by its own act or neglect that the question of notice of the obstruction or defect is an essential element."
See, also, 20 C.J. 359, Electricity, § 45; 29 C.J.S. 596. Electricity, § 47. We think that, instead of telling the jury that, if repeated repairs were made in the vicinity of the accident, the appellant would be thereby charged with express notice of the condition which brought about the break in the line, the question whether such conclusion would *Page 244 follow should have been submitted to the jury to be determined, and that both instructions Nos. 5 and 7 should embody the idea embraced in the quotation from the Murray case, supra. [11] The appellant offered to prove the value of the chicken house that was endangered by the fallen wire, and such offer was rejected. This evidence was admissible, as it would have a bearing upon the question of whether the decedent acted as a reasonably prudent and careful person in entering a zone of danger to prevent injury or loss to his property. Wardrop v.Santi Moving Express Co., 233 N.Y. 227, 135 N.E. 272.
The appellant claims the award of damages was excessive. No error is assigned upon any instruction of the court as to the measure of damages, or concerning the factors the jury might consider in arriving at the amount thereof, and we, therefore, do not deem it necessary to discuss this question, but leave it for determination by the jury when the case is retried.
The judgment is reversed, and the cause remanded for a new trial.
MALLERY and HILL, JJ., concur.