Plaintiff, a lineman, in the employ of defendant, came in contact with an electric current upon defendant's wires, and received permanent and shocking injuries. He brought his action for damages for these injuries and recovered judgment. From that judgment and from the order denying its motion for a new trial defendant appeals.
The two principal contentions of defendant are that the evidence fails to establish any negligence on its part toward its employee, and, second, that the evidence affirmatively establishes the employee's contributory negligence.
The two propositions may be considered together on the following statement of facts: Plaintiff, while not a scientific electrician or electric engineer, was a skilled and experienced lineman. He had entered the employ of the defendant company and had assisted in the general work of erecting poles, running wires, and placing transformers. He had been in the employ of the defendant before it actually commenced its business of furnishing electric power and light. He was familiar with the construction of the entire system. He understood the difference between direct and alternating currents. He was familiar with the construction and use of the switch-board. He understood generally the nature and was familiar with the workings of the system. He had previously been employed by the San Jose Railway Company as electrician and machinist, and had been injured by coming in contact with a live wire. He knew when a wire had become infused with electricity. He had been called into consultation with reference to the apparatus and machinery in the sub-station generally. He was able to turn on or off any current if so instructed. He was acquainted with and understood what was meant by "phase A" and "phase B." He had assisted in constructing "phase A" and "phase B," and understood the details. He was quite familiar with the methods of operating the power and knew when it was turned off and on. He was injured on the twenty-fifth day of September, 1901. About ten days before this date, while at work, a hammer fell on his head and he temporarily "laid off" from the fourteenth *Page 112 to the twentieth of September. On the twentieth day of September he returned to work, and spent the next five days building a switch-board. At the time he was injured by the falling of the hammer three currents were in use by the company: a current for supplying arc lights, carrying a voltage of 110; and two alternating currents ("phase A" and "phase B") for incandescent lights, carrying a voltage of 2300. These currents for the incandescent lights were known as primary currents. "Phase A," "phase B," and the arc-light current were each two-wire currents, — that is to say, two wires for each of the three currents ran from the sub-station through the town of Colusa. It appears that in the economical administration of the system it was necessary that the current should be turned on and off "phase A" and "phase B" together. The current upon "phase A" or "phase B" could be cut off and the one current used independently of the other, but this was never done, as it impaired the efficiency of the service and of the machinery. In practice, therefore, these two currents were always turned on or cut off together. Plaintiff knew this practice, knew that such was the "custom" of the company, but did not understand scientifically why the practice was adopted. Respondent's witness Putnam furnishes additional proof of this practice in the following language: "Referring to the custom of the defendant company, it was customary to turn on both phases when we turned on one, an unvarying custom so far as I know. I never heard of an instance when one phase of an electric and light power system was turned on when another corresponding phase was not turned on to balance it, except in cases when we wanted to test some particular piece of work. The customary meaning of the phrase `to turn the current on,' the custom of the electric company, of its foreman and manager and as the term is used with all the employees — that would mean to turn all the currents on of the two phases, and the customary meaning of the phrase `to turn the current off' would be to turn the current off both phases." There was but one occasion within the plaintiff's knowledge when the two currents of "phase A" and "phase B" were not operating concurrently, and upon that occasion it was plaintiff himself who cut off one of the phases. He testifies: "There was one time when one of the phases was turned off and the other remained *Page 113 on. On the night when Hamburg's saloon burned, at the fire alarm, I went down and turned out the `B' phase. I know of no other time." Plaintiff further explains why upon that occasion he turned off the "B" phase. The firemen were working in close proximity to this phase and using a great deal of water, and he was afraid that some one might come in contact with the current. In substantiation of this custom of the defendant company, plaintiff further testifies: "I do not remember that I ever heard an order to turn on a specific current of the power and light phases. I do not know of an order ever given in the town of Colusa to turn on one current."
Before the time of plaintiff's injury, the defendant company had been supplying incandescent lights through phases "A" and "B" to the town of Colusa. The service of the defendant to this time had been a night service. The currents were turned on between five and six in the afternoon and turned off before working hours the next day. While plaintiff was recovering from his injury, the printing office of the Colusa Sun took electricity to run a motor, and this electricity was supplied from phases "A" and "B." Plaintiff knew from his reading, and from conversation that took place upon the day of his accident, that the Colusa Sun was using electricity for power, and knew that electricity was supplied by defendant company from one of its phases, but did not know that it was supplied in conjunction by the two phases. During the time that plaintiff was ill from the effects of the blow of the hammer, the wires of "phase B" had been carried into the office of the Colusa Sun, and the wires of "phase A" had been extended from the pole on Fifth and Jay streets, where the accident occurred, to the same office and connected with the same motor. Upon the day of the accident, plaintiff, with Howard, the foreman, and Putnam, a fellow employee, had gone to Chinatown to take down a transformer connected with "phase B," and substitute therefor one of lesser lighting capacity. Plaintiff's work as lineman was to climb the pole, make the necessary changes, and, with the assistance of the others, lower the old transformer and hook the new one in place over a cross-bar. This work was done, of course, while the current was off. Having been successfully performed, plaintiff testifies: "Howard and Putnam each called *Page 114 my attention to the fact that the power must be turned on as soon as the transformer was placed. I understood it must be turned on. Putnam got on a bicycle and went down to turn it on. I told him I was now ready for him to turn it on, and started to climb down the pole. I understood that the power was to be turned on for the motor at the Colusa Sun office. I understood that a motor had been placed in the Sun office to operate their machinery in the printing establishment. I understood that it was to be operated in the daytime. At this time I did." It appears, therefore, that plaintiff knew, at least, that the Sun office was taking power in the daytime and that the power had been turned on as soon as he had descended from the pole along which ran the wires of "phase B." He knew, also, that, at least, the Colusa Sun was supplied with power by "phase B," and he knew also the invariable practice of the company to turn the currents of both phases on at the same time. This indisputably was the knowledge which he took with him to Fifth and Jay streets — his next place of working. The pole at Fifth and Jay streets, where the accident occurred, carried the wires of "phase A." They had, as has been said, been extended from that point on to the office of the Colusa Sun. The extension of these new wires was, of course, visible. Plaintiff reached the pole at Fifth and Jay streets, accompanied by Howard and Putnam. He climbed the pole as directed, to put another cross-arm fourteen inches below the cross-arm which carried "phase A," to which new cross-arm was to be hung the transformer which had been brought from Chinatown. This work could be, and was, performed with perfect safety, notwithstanding the fact that the current was on the wire of "phase A" above. It is important here to note just what was the particular work which plaintiff was at that time called upon to do, and the evidence is indisputable that his orders or directions went no further than the placing of the cross-arm. He testifies that when he started from Chinatown to the pole on Fifth and Jay streets, "Howard asked if I had a cross-arm and I answered yes." When he reached the spot he says: "I took what tools then that I needed and went up the pole. The tools I took were a saw, brace and bit, wood-chisel, hammer, pliers, connectors and two screwdrivers, such things as I always carried — my belt tools — and proceeded up the pole to put on the cross-arm to hold the *Page 115 transformer." He further testified: "I next saw Howard and Putnam a few minutes before I was hurt. The cross-arm was up. Putnam sighted the cross-arm for me to see that it was level and I put on the two braces. This was done after they were there. During the time after I had finished placing the cross-arm, Howard at no time instructed or directed me with reference to placing the transformer or issued any instructions or directions at all. He said nothing to me in any way, simply went to work with the transformer, I knowing that was next to go on. He was in no mood to be questioned that day. Putnam said nothing to me with reference to placing the transformer." Howard testifies that after finishing the work in Chinatown he "told Reeve to go down to the corner of Roach's across from the armory and put a cross-arm up there." And further he testifies: "I can give no explanation or reason why plaintiff should have ascended to the top of the pole based upon anything I had said to him or any order or direction. There was no occasion, need or necessity for him to ascend to the top of the pole in order for him to place the cross-arm as I had ordered and directed him." And again: "I remember clearly the specific directions that I gave plaintiff with reference to the work he was to do on the pole on the corner of Fifth and Jay. I told him to put a cross-arm on that pole. I am positive I told plaintiff to put up a cross-arm and that only." The cross-arm having thus been placed in position, plaintiff's own testimony is that, without any further direction, he climbed to the top of the pole, came in contact with the live wires of "phase A," and received his injuries. He says: "I then climbed up the pole to take in the situation below me preparatory to fastening a rope and raising the transformer. By `take in the situation' I mean the situation I saw below and its position and the transformer that he had there working with and the position of Putnam and what he was doing and causing the hand-line to be thrown up."
From plaintiff's own testimony, therefore, it appears that of his own initiative, after having set the cross-bar, he climbed to the top of the pole to take in the situation and was there hurt. He did this without any directions and without anything to prompt him so to do, for it appears that the transformer was not ready to be set in place, and that it was in the *Page 116 contemplation of Howard to have it set at the noon hour, after the power had been turned off. But conceding that plaintiff knew nothing of Howard's intention, still he did know the custom of the company invariably to turn on the two phases at the same time, and he knew also positively that the current in at least one of the phases (phase "B") had been turned on to supply the Colusa Sun. Needlessly climbing into the wires to the top of the pole, and coming into contact with the live wires of "phase A," under these circumstances, was, as matter of law, contributory negligence. True, he testifies, as anyone would testify, truthfully, that he would not have climbed to this dangerous position if he had knowledge that the current was running over those wires. But this statement cannot relieve against the undisputed facts. He was an experienced man, he did have knowledge of the uniform habit and practice of the company in regard to turning on the two currents, and the conclusion is inevitable that this knowledge had temporarily slipped his mind in a moment of forgetfulness. But for such forgetfulness the defendant company cannot be held responsible. There was no failure of duty upon the part of the employer. The plaintiff's knowledge, experience, and skill relieved the company from the necessity of giving warnings which under other circumstances, it might have been its duty to give. As plaintiff himself testifies, "If I had known that both currents would have been turned on I would have known that the wires on the pole where I was injured were live wires." And, again, having testified that upon one occasion he was warned, he says: "On no other occasion during my work for the company was I warned by any person representing the company with reference to being careful in working with live wires. I never had occasion to be warned." It appears, therefore, irresistibly that, with full knowledge of the danger and risk of his employment, and chargeable with knowledge sufficient to warn him of the danger of climbing to the top of the pole, amongst wires which he should have remembered were probably carrying a current, he did this act either recklessly or in a moment of forgetfulness. Sad and deplorable as the consequences were to him, he alone, under the evidence, is responsible for them.
Certain preliminary objections of the respondent to the hearing of this appeal are without substantial merit. On the *Page 117 day after the verdict was rendered the attorneys for the plaintiff entered into a stipulation with the attorney for the defendant wherein defendant was given thirty days in addition to the time allowed by law within which to serve and file its notice of intention to move for a new trial, its bill of exceptions, statements, or motions in the matter of a new trial, and for the purpose of securing a new trial of the cause. The defendant's attorney construed this stipulation as giving defendant thirty days in addition to the time allowed by law within which to serve his notice of intention to move for a new trial, and also thirty days in addition to the time allowed by law after service of the notice of intention within which to serve the statement on motion for a new trial. The court heard the matter upon the papers and upon affidavits and construed the stipulation in accordance with defendant's understanding. The stipulation was certainly open to this construction, and it was not error for the court so to have construed it.
The second objection urged to the hearing arises from the fact that counsel for plaintiff were brought before the judge to settle the statement without having received any notice from the clerk that the date had actually been appointed for the settlement. The statement of the case was served upon July 12th, the amendment served on August 5th, the statement and amendments delivered to the clerk for the judge on August 12th; the settlement came on to be heard on August 18th. At the time of the settlement plaintiff's counsel made their objection that they had not been notified of the time fixed for the settlement. The court overruled this objection by an order made August 22d. The bill of exceptions was settled on the nineteenth day of September and filed with the clerk upon the twentieth day of September. The objection that the clerk did not notify counsel of the hearing is sufficiently answered by the fact that they were present thereat and made their objection to further proceedings. The objection is extremely technical, and it appears that they were present at the time set for hearing. It is not made to appear that they suffered in any substantial right by failure of the notice, and, moreover, their objection having been overruled upon August 22d, the bill of exceptions was not, in fact, settled until nearly a month thereafter. It thus appears that *Page 118 there was ample time afforded them for all purposes, and the irregularity impaired none of their rights. The court was, therefore, justified in overruling this objection.
For the foregoing reasons the judgment and order appealed from are reversed.
McFarland, J., and Lorigan, J., concurred.