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District Court of Appeal, Second District, Division 3, California.


Civ. 14296.

Decided: August 01, 1944

Ray L. Chesebro, City Atty., S. B. Robinson, Chief Asst. City Atty., and Everard L. McMurrin, Deputy City Atty., all of Los Angeles, for appellants. Samuel A. Rosenthal and Burton B. Crane, both of Los Angeles, for respondent.

This is an appeal by the defendants, The City of Los Angeles and its Department of Water and Power, from a judgment in the sum of $20,000, entered upon the verdict of the jury in favor of the plaintiff.

The action was brought to recover damages for personal injuries sustained by respondent. The contentions of appellants may be divided into three groups: (1) That respondent failed to prove any actionable negligence on the part of the appellants; (2) that the evidence shows that respondent was guilty of contributory negligence as a matter of law; and (3) that the trial court committed prejudicial error in instructing the jury.

Appellants, as a part of their business of selling and distributing electricity, erected and maintained power lines along and above the northerly side of Rancho Street which is located in the San Fernando Valley section of the City of Los Angeles. The lines were immediately adjacent to a private estate and were supported by eight–foot cross–arms located near the top of wooden poles, and carried 4800 volts of electricity. The lines were about 3/4 of an inch in diameter, and consisted of No. 6 gauge copper wire insulated with about a quarter of an inch of rubber, about a sixteenth of an inch of fiber, and a wrapping of cloth covered with tar or black paint. They were strung at a height of approximately 42 1/2 feet above the ground and ran through a row of six eucalyptus trees which were rooted on the private estate. Many of their branches, however, extended beyond the property line and over the highway. These trees were from sixty to seventy feet in height and stood six to ten feet apart. On March 28, 1942, the owner of the estate employed respondent to top and trim these trees. Respondent's tree–trimming equipment consisted of an extension ladder of two units, each twenty feet long, ropes, two pruning hooks that were eight feet two inches and twelve feet two inches long, respectively, and a saw. When injured, respondent was using the longer pruner. It consisted of a wooden pole, about one inch square, with a steel hook riveted to the upper end of the pole, and a steel blade that operated within this hook. A steel wire, about 1/8 of an inch in diameter, extended from the blade to a steel lever about six inches in length which was fastened to the bottom of the pole. One end of a coil spring was attached to the lever, and the other end to the pole. The blade at the top of the pruning hook was opened and closed by manipulating the lever. The metal on the pruner was not insulated. At the time of the accident on March 29, 1942, respondent had already trimmed five of the trees, topped the sixth and cut out the dead limbs and thinned out the excess live branches down to a point where he was standing on the ladder between twenty–five and thirty feet from the ground. He was attempting to trim the outer edge of a branch about midway between trees No. 5 and No. 6. He held the bottom end of the pruner with his right hand, and operated the lever with his left. His right foot was on the ladder, which was leaning against tree No. 6, and his left leg was around the tree. He was leaning out from the ladder, fully extending the pruning hook from him. While in this position, respondent contacted one of the electric wires and was injured.

Respondent was an experienced treetrimmer and tree surgeon, having been engaged in that line of work for a number of years, both in southern California and elsewhere. He had had considerable experience in trimming trees near high voltage wires. He saw a “High Voltage” sign posted on the cross–arm of a pole and knew it was a warning of danger. Respondent examined the wires running through the trees when he contracted for the work, again just before starting to trim the trees, and finally from each tree as the work progressed. The first and second inspections were made from the ground. These disclosed that the wires “were well insulated,” that they were “covered wires,” and he “could see no breakage” in the covering. However, respondent could not see the wires at some places where the foliage was heavy. Likewise, there was some interference from the foliage with his inspection of the wires while working in the trees, but as far as he could see the wires were well covered. Actually, however, there was a bare or worn space of approximately three feet in length about midway between trees No. 5 and No. 6.

Respondent bases his right to recover upon the theory that it was the duty of appellants, in the exercise of reasonable and ordinary care, to keep and maintain their power lines through this row of eucalyptus trees in an insulated and reasonably safe condition so that they would not endanger the safety of persons employed by the owner of said trees to work upon, in or among them; that appellants negligently failed to perform that duty; and that injury to respondent resulted from the failure to perform such duty. Respondent cannot recover unless he can sustain these propositions. Minter v. San Diego Consol. Gas, etc., Co., 1919, 180 Cal. 723, 182 P. 749; Monroe v. San Joaquin L. & P. Corp., 1941, 42 Cal.App.2d 641, 647, 109 P.2d 720.

Appellants, however, attack the very foundation of respondent's argument by insisting that they violated no duty owed respondent. It is true, as appellants point out, that an electric utility is not an insurer of the safety of the public (29 C.J.S., Electricity, § 38, p. 573; Hayden v. Paramount Productions, Inc., 1939, 33 Cal.App.2d 287, 293, 91 P.2d 231), and that the law does not require its wires to be insulated everywhere. Anderson v. Southern Cal. Edison Co., 1926, 77 Cal.App. 328, 337, 246 P. 559. “The standard to be attained is that of ordinary and reasonable care, and this means such care as a reasonably careful and prudent person, having in view the dangers to be avoided and the likelihood of injury therefrom, would exercise, under the circumstances, in order to prevent injury.” Fairbairn v. American River Electric Co., 1915, 170 Cal. 115, 118, 148 P. 788, 789; McCormick v. Great Western Power Co., 1932, 214 Cal. 658, 663, 8 P.2d 145, 81 A.L.R. 678; Irelan–Yuba, etc., Min. Co. v. Pacific G. & E. Co., 1941, 18 Cal.2d 557, 564, 116 P.2d 611. Appellants take the position that they have met this standard of care by placing their wires some 42 1/2 feet above the ground. The soundness of this position must be tested by the proposition as to whether or not they could reasonably have anticipated the danger. Fairbairn v. American River Electric Co., supra; McCormick v. Great Western Power Co., supra; Hauser v. Pac. Gas & Elec. Co., 1933, 133 Cal.App. 222, 226, 23 P.2d 1068; Irelan–Yuba, etc., Min. Co. v. Pacific G. & E. Co., supra; Monroe v. San Joaquin L. & P. Corp., supra. In our opinion, appellants could reasonably have anticipated the danger. Since the row of eucalyptus trees was on a private estate immediately adjacent to a public highway, it is apparent that they were being maintained for ornamental purposes as well as, perhaps, for other purposes. It is a matter of common knowledge that such trees so located must from time to time be trimmed and have the dead limbs removed. This is necessary to enhance their aesthetic appearance and to protect the traveling public from possible injury from falling branches that might be blown off such trees during a high wind. It was therefore to be anticipated that the owner of the estate would have occasion to send someone, as he did respondent, into these trees to perform for him the very service that respondent was performing when he was injured. Particularly applicable then on the question of the appellants' breach of duty is the statement of the Supreme Court in Minter v. San Diego Consol. Gas, etc., Co., supra, 180 Cal. p. 726, 182 P. 749, 750 quoted with approval in Irelan–Yuba, etc., Min. Co. v. Pacific G. & E. Co., supra, 18 Cal.2d pages 564, 565, 116 P.2d 611, that: “If, guided by those considerations which ordinarily regulate the conduct of human affairs, an ordinarily prudent person would have had reasonable ground to suspect that the wires so placed would cause injury, the plaintiff can be said to have proved a breach of duty. And if reasonable men might fairly differ as to the answer to this question, the verdict for the plaintiff should not be disturbed.”

This phase of the problem is further complicated from appellants' point of view by the fact that the wires had been, and appeared to respondent to be, insulated. Appellants knew that there were pretty brisk winds in that particular section in March, April and May––sufficiently strong to make these eucalyptus trees sway as much as from three to six feet at the approximate height where the electric line passed through them––and that the swaying of the trees caused the insulation to deteriorate and wear off. Appellants had this line inspected only every six months––the last time prior to respondent's injury being in the previous October. The purpose of these inspections was to insure continuous service. If the covering on a particular wire was worn or bare in one or more places it was neither repaired nor reported because the service was in no way affected thereby. However, if different wires were worn or bare at places that were opposite each other, a report thereof was made because contact between two such spots might burn down the line. Since appellants could reasonably have anticipated the presence of persons lawfully in the pursuit of their business in these trees the jury might well have concluded that appellants' practice regarding inspection and repairs of said lines constituted a breach of the duty owed respondent. Support for this proposition is found in Tackett v. Henderson Bros. Co., 1910, 12 Cal.App. 658, 663, 108 P. 151, 153, where, quoting from Bourke v. Butte Electric & Power Co., 33 Mont. 267, 83 P. 470, the court said: “ ‘The owner or operator of an electric plant is bound to exercise a reasonable degree of care in erecting pole lines, selecting appliances, insulating the wires wherever people have a right to go and are liable to come in contact with them, and in maintaining a system of inspection by which any change which has occurred in the physical conditions surrounding the plant, poles, or lines of wire, which would tend to create or increase the danger to persons lawfully in pursuit of their business or pleasure, may be reasonably discovered.’ ” To the same effect see, also, Foley v. Northern Cal. Power Co., 1910, 14 Cal.App. 401, 406, 112 P. 467, and Roberts v. Pac. Gas & Elec. Co., 1929, 102 Cal.App. 422, 431, 283 P. 353.

Appellants' contention that respondent was guilty of contributory negligence as a matter of law is not well founded. The first part of this argument is based on the proposition that respondent should have used an insulated pruner, rubber gloves, or some other protective device. The answer to this proposition is that upon respondent's inspection of the wires, when he started the work, they appeared to be “well insulated.” Furthermore, respondent had the right to assume, within reasonable limits, from the location of these wires and the fact that they appeared to be insulated that they would be carefully inspected as often as reasonably necessary and that any worn or deteriorated portions of the insulation would be properly and promptly repaired. He could not be expected to know that inspection and repair of the lines was for the sole purpose of maintaining continuity of service. Under such circumstances it cannot be said that respondent was guilty of contributory negligence as a matter of law in using the type of pruner that he used in trimming the trees.

Appellants also argue that respondent was guilty of contributory negligence as a matter of law in his failure to observe the bare or exposed place on the wire between trees No. 5 and No. 6. “To establish the defense of contributory negligence as against the verdict of a jury, the evidence must be such that the appellate court can say that there is no substantial conflict on the facts, and that from the facts reasonable men can draw but one inference, which inference points unerringly to the negligence of the plaintiff proximately contributing to his own injury.” Crawford v. Southern Pacific Co., 1935, 3 Cal.2d 427, 45 P.2d 183, 184; Bellon v. Silver Gate Theatres, Inc., 1935, 4 Cal.2d 1, 47 P.2d 462; Cooper v. So. Pac. Co., 1941, 43 Cal.App.2d 693, 111 P.2d 689; Matteoni v. Pac. Gas & Elec. Co., 1942, 53 Cal.App.2d 260, 127 P.2d 574; Demmon v. Smith, 1943, 58 Cal.App.2d 425, 136 P.2d 660. Whether or not in view of the interference of the foliage and the other circumstances here disclosed the respondent was guilty of contributory negligence in not observing the bare or exposed place on this wire was clearly a question of fact for the jury. McCormick v. Great Western Power Co., 1933, 134 Cal.App. 705, 26 P.2d 322; Kerstens v. Pacific Gas & Elec. Co., 1935, 3 Cal.App.2d 489, 39 P.2d 469.

Appellants contend that the court erred in giving instructions Nos. 11, 11a, and 11b. This contention is sound. These instructions advised the jury that appellants were subject to General Order No. 64–A of the California Railroad Commission, which deals with overhead power line construction and maintenance. It was error to give these instructions, because the California Railroad Commission has no jurisdiction to regulate and supervise municipally owned public utilities, and therefore General Order No. 64–A has no application to the case. The principle that such public utilities are not within the jurisdiction of the Railroad Commission was first announced by our Supreme Court in City of Pasadena v. Railroad Comm., 1920, 183 Cal. 526, 192 P. 25. This principle has been adhered to in subsequent cases. See Los Angeles Gas & Elect. Corp. v. Dept. of Public Service, 1921, 52 Cal.App. 27, 197 P. 962; Jochimsen v. City of Los Angeles, 1921, 54 Cal.App. 715, 202 P. 902; Water Users', etc., Ass'n v. Railroad Comm., 1922, 188 Cal. 437, 205 P. 682.

Since appellants were not subject to the jurisdiction of the Railroad Commission, it was prejudicial error to give these instructions because the jury was in effect told that any failure by appellants to maintain their electric lines in conformity with the rules embodied in General Order No. 64–A constituted negligence. This, of course, is not true, because “if the rules of the Railroad Commission were held to establish as a matter of law the measure of ordinary care, it would do away with the principle that negligence is a question for the jury to determine from the facts in the particular case.” Winkie v. Turlock Irr. Dist., 1937, 24 Cal.App.2d 1, 5, 74 P.2d 302, 305; see also Langazo v. San Joaquin L. & P. Corp., 1939, 32 Cal.App.2d 678, 684, 90 P.2d 825.

Appellants complain that the court erred in giving instruction No. 23. That instruction reads as follows: “Applicable to the defense of contributory negligence, the rule is not that any degree of negligence, however slight, on the part of plaintiff, which directly concurs in producing the injury, will prevent his right to recover, but the rule is that if the negligence of the plaintiff amounting to the absence of ordinary care exercised by an ordinarily prudent person shall contribute proximately, in any degree, to the injury, it will prevent his right to recover.” When considered by itself, this instruction is plainly contradictory. In a single sentence the rule of contributory negligence is first denied and then affirmed. Obviously, both statements cannot be correct. In fact, the negative statement as an instruction is untenable and directly conflicts with the declared law of this state. 19 Cal.Jur., sec. 74, p. 644.

The court also erred in instructing the jury on the question of unavoidable accident. In instruction No. 24 the jury was told that: “This is an affirmative defense and the burden of proving it rests entirely upon the defendants, who allege the same.” This defense does not need to be affirmatively alleged. It is put in issue by the defendants' denial of plaintiff's allegations of negligence. “The law,” says the court in Sitkei v. Ralphs Grocery Co., 1938, 25 Cal.App.2d 294, at page 297, 77 P.2d 311, at page 313, “is settled that under a general denial by defendant of a general allegation of negligence defendant may rely upon the defense of unavoidable accident and does not waive such defense by failing to specifically plead it * * *.” That the burden of proving unavoidable accident does not rest upon the defendant is logically demonstrated in Jolley v. Clemens, 1938, 28 Cal.App.2d 55, 82 P.2d 51. At page 72 of 28 Cal.App.2d, at page 61 of 82 P.2d, the court said: “The dominating consideration in dealing with the whole subject of inevitable accident, as we see the matter, is the elementary requirement that before a plaintiff can recover he must make out his case by the preponderance of all the evidence before the court or jury regardless of the stage of the case at which it may have appeared or the particular party who introduced it. To do this in a negligence case he must show that the defendant was negligent and the negligence was the proximate cause of the injury complained of. But if the accident was inevitable or unavoidable that is the same thing as to say that the defendant was not negligent, or that his negligence, if any, did not cause the accident. In other words, it is to say that the plaintiff has failed in his proof.” It was therefore plainly error to give the jury the above quoted portion of instruction No. 24.

It should be pointed out, however, with respect to both instructions No. 23 and No. 24, that the jury was elsewhere in the instructions correctly advised on the question of contributory negligence and that the burden rested upon the planitiff to prove that the negligence of the defendants was a proximate cause of his injury. The rule, of course, is that all instructions must be read together, and considered as a whole. Gaster v. Hinkley, 1927, 85 Cal.App. 55, 258 P. 988. “If a single instruction omits an essential element of the cause, but is a correct declaration of the law so far as it goes, and the omitted element is correctly given in another instruction, the omission will ordinarily be cured thereby.” Soda v. Marriott, 1931, 118 Cal.App. 635, 643, 5 P.2d 675, 678; Ferguson v. Nakahara, 1941, 43 Cal.App.2d 435, 442, 110 P.2d 1091. But, “It has been frequently held that the giving of an erroneous instruction is not cured by the giving of other correct instructions, where the effect is simply to produce a clear conflict in the instructions and it is not possible to know which instruction was followed by the jury in arriving at a verdict.” Akers v. Cowan, 1938, 26 Cal.App.2d 694, 699, 80 P.2d 143, 145. See, also, Rathbun v. White, 1910, 157 Cal. 248, 253, 107 P. 309; Pierce v. United Gas & Electric Co., 1911, 161 Cal. 176, 185, 118 P. 700; Starr v. Los Angeles Ry. Corp., 1921, 187 Cal. 270, 280, 201 P. 599. In our opinion it is this latter rule that should govern in this case.

Appellants also complain about instruction No. 27. It reads as follows: “If you believe from the evidence that plaintiff, before undertaking to perform his work of trimming the trees on the property of Norman Levin, exercised reasonable and ordinary care as a reasonable and prudent person in observing defendants' electric wire strung through the said trees, and that in so making his observations of said wires they appeared to him insulated and in a reasonably safe condition so as to permit him to trim said trees without danger of an electric shock to his person, plaintiff was entitled to assume, and act upon this assumption, that defendants' wires were insulated throughout said trees, and he was not imposed with the duty to seek out concealed and hidden defects, if any, in the insulation of said wires, and he cannot be charged with negligence in failing to do so.” The principle there stated is in general correct, but “the right to rely upon the performance by another of the duty to use due care is not absolute. The assumption that another will exercise due care must yield to the realities of the situation to the extent that if the plaintiff observes a violation of duty which imperils him, he must be vigilant in attempting to avoid injury to himself. The assumption is not consistent with the exercise of due care for one's own safety, where relying upon it means ignoring a condition which is openly fraught with peril to the person. One may be guilty of contributory negligence in failing to anticipate and act upon the contingency of another's negligence.” 38 Am.Jur., sec. 192, p. 873. Here, respondent had seen the “High Voltage” sign and knew that it was a warning of danger, and knew that a contact between a worn or bare place on one of the wires with the metal on his pruner would likely result in serious injury. Respondent had worked in and about these trees some seven hours on the day he was injured and had had an opportunity to observe the wires at close range from positions of vantage in each of these trees. His opportunity to observe the condition of the wires was constantly improved by the removal of dead limbs and the thinning out of those that had foliage on them. Also, he had the opportunity of seeing the wires from different angles and elevations. Respondent knew that the covering on the wires was more likely to be worn where the foliage was the heaviest and where a wire was in close contact with a limb. Furthermore, when respondent inspected the wires from the ground prior to starting the work he was unable to see them at certain places because of the interference of the foliage. Under these circumstances, he was not entitled to blindly assume that he was not exposed to any danger. 19 Cal.Jur., sec. 35, p. 597. In 45 C.J., sec. 512, p. 956, it is said that one “may not rely upon the assumption that others will not be guilty of any breach of their duty to avoid injuring him where, under the same or similar circumstances, an ordinarily prudent person would not do so * * *.” “Whether reasonable care is used under the circumstances in any particular case in relying upon the presumption is a question for the jury.” Dickinson v. Pac. Greyhound Lines, 1942, 55 Cal.App.2d 824, 828, 131 P.2d 401, 403; Scott v. San Bernardino Valley, etc., Co., 1908, 152 Cal. 604, 93 P. 677; White v. Davis, 1930, 103 Cal.App. 531, 545, 284 P. 1086. On a retrial, instruction No. 27 should either be modified or supplemented so as to present this question to the jury for its determination.

The judgment is reversed.

FOX, Justice pro tem.

DESMOND, P. J., and PARKER WOOD, J., concur.

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