I dissent from the order denying a rehearing. The opinion of the court omits some facts which I deem highly material to the question of contributory negligence. Shade and his companions, traveling on a public road, on a descending grade, at a brisk pace, suddenly became aware of the suspended wire, barely in time to stop their carriage on the bridge. They were not at that point thirty feet distant from the wire. The insulator attached to the wire was thirty feet distant, but the wire itself extended alongside of the carriage over one side of the bridge, and they were in a position where it was impossible to turn back except by doing what they finally did, — that is, by unhitching the horses and backing the carriage by hand to a point on the road where there was a sufficient space to enable them to turn it. In this way, and in this way only, can it be said that they could have turned back. And the evidence does not, in my opinion, make it appear probable that they could have driven past the obstruction without risk. The only evidence on this point was the testimony of one of defendant's witnesses, — an expert electrician, — who, on his cross-examination, admitted that he would not himself have taken the risk of driving between the fence and the wire when the current was on. The case, then, as it appears to me, is that Shade and his party, without any fault of their own, found themselves in a position where it was difficult to turn back and perilous to go forward. They were on a public road in the exercise of their undoubted right. Was it then such contributory negligence on the part of Shade as necessarily precludes a recovery to attempt in a cautious and prudent manner to remove the obstruction?
It is true, as stated in the opinion of the court, that he was not a backwoodsman who knew nothing of electric plants and the danger which lurks in live wires. On the contrary, he was *Page 15 perfectly aware of the danger of coming in contact with the wire, and he was assisted in all that he did by his father-in-law, Mr. Hodges, who was an engineer in the supply department at Mare Island, and in actual charge of an electric-generating plant there. They both knew of the danger of touching the wire, or coming in close proximity to it, and, according to all the evidence, they carefully avoided those dangers. Shade took a cord fifty-three inches long, and, holding it by the two ends, threw the loop over the skirt of the insulator. Then, with both hands held about two feet from the wire, he tied a knot in one end, so as to form a slip noose inclosing the other end, and then by drawing out the free end he slipped the noose down upon the insulator without getting any nearer to the wire. At this moment, while he was holding the cord with one hand and reaching with the other for the stick which he intended to tie to the cord, the explosion occurred, fatally injuring him and knocking Hodges down and rolling him over and over.
The evidence is clear that the current did not pass through the cord, and the circumstance that the insulator was slightly broken is of no possible significance. It was one of those large porcelain affairs, fourteen inches high, used on the poles of high transmission lines. It had been tested for one hundred and twenty thousand volts and the line was carrying only fifty thousand. It does not appear what the break in the insulator was, but it does appear that it was fastened to the wire by the upper portion, and hung down under the wire in its proper position, so that a cord thrown over the skirt would be at more than sparking or arcing distance from the wire. In short, the testimony of all the witnesses — defendant's as well as plaintiff's — shows conclusively that the current did not reach Shade through the cord or insulator. But defendant's expert witnesses testify that he must have come in actual contact with the wire, or within less than two inches of it. The eye-witnesses of the accident testify that he was never within less than fourteen inches of the wire, and there is no doubt that he was consciously and carefully avoiding a near approach to it. In deciding that he must have touched the wire, the court is obliged to disregard the testimony of the eye-witnesses in favor of the theory that he could not otherwise have been injured. Can we lay this down as a proposition of law? Is *Page 16 it competent for this court to say that a sudden and fatal explosion may not have occurred in consequence of some unusual condition or combination of causes which no one could reasonably have anticipated? If not, and if Shade was using all due precaution for the safe removal of a dangerous obstruction to a highway along which he desired to pass for a lawful purpose, I do not think he is chargeable with contributory negligence. For myself I do not profess to know enough about the possible eccentricities of electric force to deny the possibility of the accident having been due to a cause which no one could have reasonably anticipated, and the evidence on the part of plaintiffs shows that Shade in attempting to remove the obstruction took every precaution to avoid the only danger that is ordinarily involved in such operations.
It is to be observed that according to the authorities cited in the opinion of the court (Studer v. Southern Pacific Co.,121 Cal. 400, [66 Am. St. Rep. 39, 53 P. 942], and Flemming v.Western Pacific R.R. Co., 49 Cal. 253, it is only when the evidence introduced by the plaintiff in chief shows clearly and without conflict that the person injured has been guilty of culpable negligence directly contributing to the injury complained of that this court can set aside the verdict of a jury upon that ground. Here several of the matters stated in the opinion of the court rest wholly and entirely upon evidence introduced by the defense. There was nothing in the evidence introduced by the plaintiff tending to show that the insulator was broken, that plaintiffs' party had room to pass the obstruction without risk, or that Shade could not have received the injury without coming in contact with the wire (unless that is a datum of science of which courts must take judicial knowledge). On the contrary, the evidence for the plaintiffs is clear that he was never within arcing distance of the wire.
I can conceive of no principle upon which the decision of the court can be sustained except this: that where a person lawfully passing along a public road encounters an obstacle which may possibly injure him if he attempts to pass it or remove it, the mere fact that he is injured in the attempt to do one or the other is proof conclusive that he has been guilty of culpable negligence. This was in effect the sort of argument urged upon this court in Robinson v. Western Pacific R.R. Co., 48 Cal. 409. There a woman passing a street of *Page 17 Stockton attempted to cross a railroad track behind a train of cars, which suddenly started back and injured her. In substance the argument was, if she had kept off of the track she would never have been injured. Here the argument seems to be that if Shade had not attempted to remove the obstruction he never would have been injured, and no allowance is made for the ample precautions he took (according to the evidence in chief) to avoid the only danger ordinarily involved in the attempt. I cannot concur in a view which limits so strictly the rights of persons lawfully using the public roads.