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District Court of Appeal, Second District, Division 2, California.

Vernon Leroy SNYDER, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA EDISON CO., Defendant and Respondent.

Steve James GRADICH, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA EDISON CO., Defendant and Respondent.

Civ. 20041, 20042.

Decided: November 22, 1954

Alex D. Fred, Edward Feldman and Bodle & Landye, Los Angeles, for appellants. Crider, Telson & Ruppe, Los Angeles, for respondent.

These are consolidated appeals* by plaintiffs from respective judgments rendered in favor of the defendant after trial before a jury, in an action to recover damages for personal injuries.

Facts: On September 5, 1951, at about 1:15 p. m., plaintiffs were working near the top of a 50 foot wood electric power pole on the side of a steep slope in Latigo Canyon in the Santa Monica mountains. Plaintiffs had been on the pole for about one hour when suddenly, without warning, the pole shifted its position, titling toward an existing 16,000 volt power line. At the height at which plaintiffs stood they were unaware of the pole shifting until one of the crew on the ground below alerted them. Plaintiff Gradich, who had been standing on the lower cross-arm on the side near the live line, quickly jumped to the other side and threw a rope down to the crew below. The men below pulled the rope in an attempt to straighten the pole and take it away from the live wire. The pole stood upright for an instant and then toppled downward toward the bottom of the canyon carrying the plaintiffs with it. There was not time for either plaintiff to climb down the pole prior to its toppling over. Both plaintiffs were seriously injured.

Plaintiffs were employed as linemen by the J. W. Wilson Company which erected the pole the morning of the accident. After it had been set plaintiffs worked for an hour installing cross-arms on it. Then they had lunch after which they again climbed the pole for the purpose of mounting the switches. They had worked for approximately an hour before it fell.

The pole had been set in the ground at a depth of less than 6 1/2 feet, contrary to the safety orders of the Public Utilities Commission, which required that 50 foot poles be placed in firm soil, a minimum depth of 6 1/2 feet, and that ‘deeper settings or special methods of pole setting * * * be resorted to’ where soil is not firm.

The Wilson Company acted under a master agreement with defendant Edison Company to construct or repair the transmission, distribution and communication lines used by Edison to distribute electric energy. This master agreement provided, among other things, as follows:

‘2.7 The Contractor shall furnish labor, construction and repair equipment, tools, including hot line tools, transportation of labor and materials, and supervision for constructing and repairing, electric, transmission, and communication lines and shall perform such other work pertaining to the installation of electrical equipment as shall from time to time be ordered by Edison as indicated above.

‘2.8 Contractor agrees to perform all such work in a good and workmanlike manner and in strict compliance with and in conformity to the drawings, plans, and specifications furnished the Contractor by Edison and to do all things required by this Agreement and by said drawings, plans, and specifications.

‘11. Protective Measures:

‘11.1 During the course of the work to be performed hereunder, Contractor shall provide and maintain all necessary signs and signals, lights, guards, protective enclosures, devices, and facilities for protection of the work and the public as may be necessary to warn all persons of danger and to protect against accident, injury or damage, and shall comply with all applicable laws, ordinances, rules and regulations governing safety.’

‘10.1 The Contractor shall comply with all laws, ordinances, rules and regulations bearing on the conduct of the work as drawn and specified. If the Contractor observes that the drawings and specifications are at variance therewith, he shall promptly notify Edison in writing, and any necessary changes shall be adjusted as provided herein for changes in work.

‘10.2 If the Contractor performs any work contrary to such laws, ordinances, rules and regulations, and without notice to Edison, he shall bear all costs and liabilities arising therefrom without reimbursement from Edison.’

Under paragraph 20.1 of the agreement Wilson Company was required to perform all work free and clear of any management, control or supervision by defendant as to the manner, method or details employed by Wilson Company in the performance thereof, but defendant was given the right to have its representative or other agent inspect the work from time to time in order to ascertain whether the work had been done in accordance with the plans and specifications. Such inspection, or the presence of such inspector, was not to constitute or be construed as an exercise of management or supervision over the work, nor be construed as approval of the work as it progressed, nor to limit the right of defendant to reject any part or all of the work when completed in case the work did not conform to the plans and specifications.

With respect to any particular job, the Wilson Company would receive a work order from defendant. The Wilson Company furnished the men and equipment and the defendant furnished the material, such as poles and wire used on the job. The particular job on which the Wilson Company crew was working at the time of the accident was the installing of a new feeder line and replacement of the deteriorated poles on the existing 16,000 volt line running from Latigo Canyon to the Pacific Coast Highway. The Wilson Company, including the plaintiffs, had been working on the job for approximately three weeks before the accident. The plans and specifications for the job had been prepared some time from two months to a year prior to January 10, 1951, the date on which the work order was prepared.

No soil test had been made of the area where the pole fell. The soil where the pole was set was shale and at least its upper portion was loose soil or ‘slop-over’ from the cut of the road above.

With respect to the work done by Wilson Company, defendant maintained an inspector whose duty it was to inspect all construction done by ‘contract crews'. Among his duties was the requirement that he observe and see that the contract crews ‘meet the specifications of the Edison standards and the state laws' including General Order No. 95, of the Public Utilities Commission.

Although defendant's inspector was in the general area of the job during the progress of the work, the depth at which the pole which fell had been set was never inspected by him or anyone else for defendant until after the accident. It was not the defendant's policy to inspect the pole setting depths.

Questions: First: Was there any evidence in the record of any negligence on the part of defendant, its agents, servants or employees?

No. It is conceded that Wilson Company was an independent contractor in the performance of its work for defendant at Latigo Canyon, including the setting of the pole which resulted in the accident.

The law is settled that a principal is not liable for the negligence of an independent contractor employed by him. (Green v. Soule, 145 Cal. 96, 99, 78 P. 337; Barton v. McDonald, 81 Cal. 265, 267, 22 P. 855; Barrabee v. Crescenta Mutual Water Co., 88 Cal.App.2d 192, 196[4], 198 P.2d 558; Robbins v. Hercules Gasoline Co., 80 Cal.App. 271, 273[1], 251 P. 697; Schmidlin v. Alta Planing Mill Co., 170 Cal. 589, 591, 150 P. 983.) In the present case the evidence fails to disclose any negligent act upon the part of defendant, nor was there any evidence that defendant was negligent in any manner in connection with the inspection of its work. It was its practice to make an inspection of the work upon its completion. Defendant had an inspector on the job at all times who had inspected each and every pole up to and including the pole five poles distant from the pole on which plaintiffs were working at the time of the accident. After the installation of the pole in question, plaintiffs did not examine the pole, or its stability, but immediately climbed the same, found it to be steady, and worked on it until the time of the injury without waiting for defendant to make an inspection thereof.

There is no evidence that defendant did not exercise ordinary and reasonable care in its inspection of the work on the job as it progressed, since it relied upon a competent and experienced contractor and upon the fact that the contractor would comply with applicable rules and regulations. Likewise, defendant at no time gave instructions to Wilson Company to place the pole in an excavation only 6 feet in depth.

Second: Did Rule 49.1C of General Order No. 95 of the Public Utilities Commission impose a nondelegable duty upon the defendant to comply with the setting requirement?

No. Section 30 of the Public Utilities Act, 2 Deering's General Laws, Act 6386, provides: ‘Every public utility shall obey and comply with each and every requirement of every order, decision, direction, rule or regulation made or prescribed by the commission in the matters herein specified, or any other matter in any way relating to or affecting its business as a public utility, and shall do everything necessary or proper in order to secure compliance with and observance of every such order, decision, direction, rule or regulation by all of its officers, agents and employees.’

Rule 49.1C provides that wood poles 50 feet in length shall be set in soil to a depth of 6 1/2 feet.

Section 73 of the Public Utilities Act, 2 Deering's General Laws, Act 6386, provides as follows: ‘(a) In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done, either by the constitution, any law of this state or any order or decision of the commission, such public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injuries caused thereby or resulting therefrom, * * *.’

Defendant did not violate any provisions of the foregoing rules or regulations. It is not reasonable to interpret the rules and regulations as imposing a non-delegable duty upon defendant in connection with the installation of electric power poles. Section 30 of the Public Utilities Act requires that a public utility obey and comply with the rules and regulations of the commission. In the instant case the evidence shows that defendant insisted that Wilson Company comply with the commission's regulation as to pole-setting requirements. Section 30 of the Act does not state that defendant cannot delegate the responsibility of compliance with the pole-setting requirements to an independent contractor. The Act provides that the public utility ‘shall do everything necessary or proper in order to secure compliance’ with the rules by all of its officers, agents and employees. It recognizes that the utility shall exercise reasonable care to see that applicable rules are complied with. Defendant as a corporation can act only through its officers, agents and employees. The requirement is that it do ‘everything necessary or proper’ to see that its agents and employees comply with applicable rules. In this case defendant by securing a competent contractor to install electric power poles for it, specifying that all rules and regulations should be complied with, making provision for inspection of the work after it was completed to see that there was compliance with applicable rules has, under the facts, done everything ‘necessary or proper’ to see that pertinent rules of the commission were complied with.

Section 73 of the Public Utilities Act provides that a public utility shall be liable if it does cause to be done or permits to be done any act prohibited by an applicable rule, or omits to do any act required to be done by such rule. In the instant case defendant did not cause the pole to be installed in a hole only six feet deep, nor did it permit Wilson Company to do such an act, nor did defendant omit to do an act required by the rules of the commission since it specifically provided in all of its agreements with Wilson Company that the rules of the commission should be fully complied with.

Plaintiff's argument that the violation of General Order 95 was negligence per se may be assumed. However, such violation did not fix liability upon defendant inasmuch as the act which constituted the violation of the order was that of an independent contractor and not that of defendant. The jury was fully and competently instructed upon this subject by the court as follows: ‘Conduct which is in violation of law constitutes negligence per se. This means that if the evidence supports a finding, and you do find that a person did so conduct himself, it requires a presumption that he was negligent. However, such presumption is not conclusive. It may be overcome by other evidence showing that under all the circumstances surrounding the event, the conduct in question was excusable, and justifiable and such as might reasonably have been expected from a person of ordinary prudence. In this connection, you may assume that a person of ordinary prudence will reasonably endeavor to obey the law and will do so unless causes, not of his own intended making, induce him without moral fault, to do otherwise.’

The following authorities cited by plaintiff, Langazo v. San Joaquin Light and Power Corp., 32 Cal.App.2d 678, 90 P.2d 825; Morris v. Sierra & San Francisco Power Co., 57 Cal.App.2d 281, 207 P. 262, Howell v. San Joaquin Light & Power Corp., 87 Cal.App. 44, 261 P. 1107, Polk v. City of Los Angeles, 26 Cal.2d 519, 159 P.2d 931, and Clark v. Pacific Gas and Electric Co., 118 Cal.App. 344, 5 P.2d 58, 6 P.2d 297, are all cases where the plaintiffs were injured when they came into contact with the defendant's electric wires, and in which the defendant in the transmission of the electricity had violated some provision of the law. They did not involve an independent contractor and are therefore not here in point.

Finnegan v. Royal Realty Co., 35 Cal.2d 409, 218 P.2d 17, Roxas v. Gogna, 41 Cal.App.2d 234, 106 P.2d 227, Semanchuck v. Fifth Avenue and 37th Street Corp., 290 N.Y. 412 [49 N.E.2d 507], Boucher v. New York, N. H. & H. R. Co., 196 Mass. 355 [82 N.E. 15, 13 L.R.A.,N.S., 1177], City of Chicago v. Dermody, 61 Ill. 431, Chandler v. Glaser Contracting Co., Sup., 80 N.Y.S.2d 502, and similar cases, cited by plaintiffs to the effect that General Order 95 was a safety measure imposing a nondelegable liability are not here applicable for the reasons hereinbefore stated that Section 30 of the Act imposed upon defendant the duty only of taking reasonable precautions to insure compliance with the Public Utilities Act and the rules and regulations of the commission. For example, in Finnegan v. Royal Realty Co., 35 Cal.2d 409, 218 P.2d 17, the court held that a landlord was liable for personal injury to employees of a lessee where the landlord owed and breached a duty to provide necessary exit doors as required by a city ordinance. In such case the duty imposed by the ordinance dealt directly with the business in which the landlord, as lessor, was engaged and was passed pursuant to the exercise of the police power for the protection of tenants and others who might be in the building. The lease contained a general provision that the lessee would comply with all applicable laws, yet the fact remains that the lessee had no duty to reconstruct the building or to make major improvements such as exit doors. This duty remained with the landlord. There was in such case no failure upon the part of an independent contractor to install exit doors in accordance with the ordinance.

In the present case defendant specified that the pole be set in accordance with the rules and regulations of the commission. However, the independent contractor, Wilson Company, violated the regulations and the specific orders and agreement with defendant and performed the work negligently with the resulting injury to plaintiffs.

Likewise, plaintiffs' contention that defendant was a public utility operating under a franchise and therefore responsible for the negligence of an independent contractor in the performance of its duties is without merit. Since defendant is engaged in the production and transmission of electricity, in the performance of such business it could not escape liability by having the work done by an independent contractor. However, this did not prevent it from having an independent contractor build lines and buildings for it subject to the rules generally applicable to independent contractors.

Eli v. Murphy, 39 Cal.2d 598, 248 P.2d 756, Taylor v. Oakland Scavenger Co., 17 Cal.2d 594, 110 P.2d 1044, Luce v. Holloway, 156 Cal. 162, 103 P. 886, Woodman v. Metropolitan R. Co., 149 Mass. 335, 21 N.E. 482, 4 L.R.A. 213, and Kirk v. Santa Barbara Ice Co., 157 Cal. 591, 108 P. 509, are all distinguishable from the present case for the reason that in each of the cited cases the defendant was held liable for the negligence of a contractor performing for defendant a nondelegable duty.

Defendant could not delegate its responsibility for the transmission of electricity, the business for which it was licensed. It could, however, delegate the incidental functions not peculiar to its business such as the building for necessary facilities, including electric power lines. Such delegation is proper providing defendant does everything necessary and proper to insure compliance with the rules of the Public Utilities Commission.

Hard v. Hollywood Turf Club, 112 Cal.App.2d 263, 246 P.2d 716, (hearing denied by the Supreme Court) supports the foregoing views. In such case plaintiff, an employee of the subcontractor, brought an action against defendant general contractor on the theory that certain safety regulations with regard to scaffolding imposed a nondelegable duty upon the general contractor for which it was liable when the scaffolding proved to be defective and broke. The court held that it would be an onerous burden to place upon a general contractor a nondelegable duty to enforce all statutory safety provisions and hold him responsible for the enforcement of safety statutes. At page 268, of 112 Cal.App.2d, at page 720, of 246 P.2d, Mr. Presiding Justice Moore makes these pertinent observations: ‘This leads to the observation that the aim of safety and insurance statutes is not to hinder or do harm to employers. Taking them by and large, those laws serve the best interest of management and of society as a whole by preserving the manpower of industry and by maintaining the established economy. The Legislature could not reasonably have intended to operate a hardship upon employers by making one contractor liable for the neglects of another. If as the generalissimo of a construction job, the general contractor leaves holes in the floor or grease upon it whereby any invitee might suffer injury, of course he would be liable. But where he has agreed by subcontract with an experienced and reputable painter to paint the ceilings and walls of the building under repair and the reputable painter negligently constructs an inferior scaffold that cannot support his workmen, it is nothing short of oppression to require the general contractor to pay the total amount of damages suffered by the injured workman as the result of the painter's negligence and thereby relieve the subcontractor of all charges he might have been obliged to pay on account of the accident.’

In the present case defendant was obligated under Section 30 of the Public Utilities Act to do all that was necessary or proper to obtain compliance with the regulations of the Commission. To hold that defendant is liable for any and all acts of independent contractors and their employees irrespective of the fact that defendant is not negligent in any manner would be to make defendant an insurer of every subcontractor's activities and would operate to relieve the subcontractor entirely of its obligations under the Workmen's Compensation Act. (See also Neuber v. Royal Realty Co., 86 Cal.App.2d 596, 616, 195 P.2d 501; Donahoo v. Kress House Moving Corp., 25 Cal.2d 237, 245, 153 P.2d 349; Chartiers Valley Gas Co. v. Waters, 123 Pa. 220, 16 A. 423.)

Third: Did the trial court err in omitting plaintiffs' instructions to the effect that defendant was under a non-delegable duty to comply with General Order 95 of the Public Utilities Commission and in giving the following instruction to the jury: ‘If you find that the plaintiffs' employer, through its foreman, received instructions from the Edison Company to set the pole involved in this case at a depth less than required by law, and if you further find that the pole in question was set at such depth pursuant to such instructions, you are instructed that it is the law that failure on the part of the employer of the plaintiffs to set the pole at the depth required by law is imputed to the defendant; that is to say, the defendant would be chargeable with such conduct or omission’?

No. In the light of the views hereinbefore expressed, the trial court properly refused to give the questioned instructions. Since plaintiffs' theory that defendant's duty was nondelegable was erroneous the court's action was correct.

An examination of the record discloses that the trial court fully and fairly instructed the jury on each and every issue presented to it in accordance with applicable rules of law.



FOOTNOTE.  By stipulations the two cases were consolidated for trial and on appeal.

McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.