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BERESFORD v. Pacific Gas & Electric Company, a corporation, Defendant and Appellant.

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District Court of Appeal, Third District, California.

Harold K. BERESFORD, Catherine A. Beresford and Nellie V. Beresford, Plaintiffs and Respondents, v. PACIFIC GAS AND ELECTRIC COMPANY, a corporation, and Public Utilities California Corporation, a corporation, Defendants, Pacific Gas & Electric Company, a corporation, Defendant and Appellant.

Civ. 8416.

Decided: June 23, 1955

John J. Briare, San Francisco, Edmund M. Moor, Red Bluff, Anthony J. Kennedy, Sacramento, for appellant. Rawlins Coffman, Red Bluff, and L. C. Smith, Redding, for respondents.

This is an appeal by defendant P. G. & E. Company from a judgment in favor of plaintiffs in an action for damages for the destruction of plaintiffs' property by fire, alleged to have resulted from defendant's negligence.

Plaintiffs operated a resort at Mineral which is located in the mountains approximately 40 miles east of Red Bluff. During the early morning hours of January 10, 1949, the main lodge building at the resort was completely destroyed by fire. The primary basis of plaintiffs' claim of negligence is predicated upon the falling of a tree across a power line of defendant's, causing that line to come in contact with and energizing telephone lines leading to plaintiffs' lodge, thereby causing a fire to break out in the telephone switchboard located therein.

The record shows that in 1939 plaintiffs granted to defendant a right of way for the erection of a transmission line, referred to throughout the testimony as a ‘tap line’. Pursuant to the easement granted, defendant constructed the tap line from its main power line which was located a short distance south of the highway running through Mineral. The line so constructed was parallel to the highway, along the side of which were telephone lines, some leading to a switchboard at the lodge building about one half mile to the east. The tap line, which was uninsulated, carried approximately 11,000 volts of electricity. Near the south end of the tap line was located a transformer from which appellant took two 110-volt service connections.

At a point approximately one half mile from the lodge and about 25 feet from where defendant chose to erect its tap line along the highway, there stood a 110-foot cedar tree. This tree had a fire burn referred to in the record as a ‘catface’ which, according to the testimony, weakened the tree to a degree. The tree was approximately 36 inches in diameter at breast height and leaned approximately five to ten degrees in the direction of the road across which the tap line was strung. The tree had some dry rot and possibly was somewhat unsafe for the further reason that it was located by itself in a cut-over area so that high winds could exert full force against it. It stood approximately 59 feet north of the telephone lines which were 30 feet from the highway, and it rose approximately 75 feet above the 35-foot poles that supported the tap line. On the night of January 10, 1949, at the hour of 12:35 a. m. or shortly thereafter, and during a high wind, the tree fell across the tap line, forcing it in contact with the bare telephone lines, thereby transmitting high voltage electric current over the telephone lines. Apparently no one witnessed the inception of the fire. Shortly after 1 a. m. an employee of plaintiffs observed a fire in the lodge which he described as coming from the area of the telephone switchboard. Witnesses living in the neighborhood testified to the steady continuous ringing of their telephones at various times beginning shortly after 1 o'clock. They also testified to blue flames and sparks shooting out from electric switches in their homes. In addition they testified that fuses in their homes were blown in some instances and the carbon blocks burned. One of two repeater coils which were located side by side on a terminal pole near the lodge, and through which the escaping power traveled, was burned out. The second, which was in no way connected with the lines on which the power was escaping, remained undamaged. A second fire occurred in a cabin near the lodge some time after 4 a. m. When the tree fell the lines were not broken and the power remained on until approximately 3:14 a. m. when a truck which was then being driven past the fallen tree came into contact with the lines and broke them causing an alarm to ring in the South Power House, awakening the attendant.

Prior to that hour no safety or protective device on defendant's power system interfered with or shut off the escaping power, although there was testimony that such alarms or protective devices could have been so regulated. The communications officer of the U. S. Forest Service testified that the damage to the repeater coils on that agency's lines was caused by ‘a high rate of current flow through a repeater coil for some little time—not an instantaneous surge that was discontinued,’ and that the damage was more severe than that caused by lightening. A witness for the defendant testified on cross-examination that if he had been informed that the repeater coil burned out shortly after the tree fell onto the line, then he ‘would say it had some connection with the falling of the tree.’ One Lynch, an electrical engineer and manufacturer of telephone equipment, testified that the voltage involved would destroy or burn out the telephone lines. Two experts, both electrical engineers and presently employed as instructors at the University of California, were called by plaintiffs, and in response to hypothetical questions involving in general the testimony previously summarized, stated that such conditions would result in a fire. They further testified that relocation of the transformer so that the power crossing the highway would be reduced to 110 volts from the 11,000 it carried, would have reduced the fire hazard as insulated wires would have done.

It is appellant's first contention that the trial court erred in denying its motion for a nonsuit and for judgment notwithstanding the verdict since no actual negligence on their part was shown by the evidence. There can be no question but that defendant operated a power line; that a tree fell, bringing that line into contact with telephone lines leading into plaintiffs' resort; and that the telephone lines were abnormally energized. Under these circumstances whether or not defendant was negligent was a question of fact for the jury.

In Polk v. City of Los Angeles, 26 Cal.2d 519, 525, 159 P.2d 931, the court made the following statement, quoted with approval in the recent case of Dunn v. Pacific Gas & Electric Co., 43 Cal.2d 265, at page 272, 272 P.2d 745, at page 749:

“On the subject of negligence the standard of care is, that one maintaining wires carrying electricity is required to exercise the care that a person of ordinary prudence would exercise under the circumstances. Among the circumstances are the well known dangerous character of electricity and the inherent risk of injury to persons or property if it escapes. Hence, the care used must be commensurate with and proportionate to that danger.”

Again, in Lozano v. Pacific Gas & Elec. Co., 70 Cal.App.2d 415, 422, 161 P.2d 74, 78, and also cited with approval in the Dunn case, this court held that:

‘The duty of due care with which the company was charged consists not only in the proper installation of the dangerous instrumentality but in the maintenance thereof in a safe condition at all times and places and under the changing circumstances of the particular case. Even if at the outset of the installation of the equipment the company may have been entirely free from fault, yet, if, under changing circumstances, a hazardous condition arose, nonaction or the failure to remedy such condition would constitute culpable negligence.’

As noted in the Polk case the care used must be commensurate with and proportionate to the dangerous propensities of electricity. It has further been held that it is not unreasonable to require the defendant to anticipate that during a high wind a tree might fall across high voltage lines as was the situation in the present case. Irelan-Yuba Gold Quartz Mining Co. v. Pacific G. & E. Co., 18 Cal.2d 557, 116 P.2d 611, 617.

Here the defendant is arguing the same as it did in the Irelan-Yuba case, that since the tree was on the property of plaintiffs it had no obligation and no right to enter upon the plaintiffs' land and cut down the tree. But as the court in that case said, ‘It is not decisive that the tree was not within the limits of the portion of the right of way which had been cleared.’ In Rocca v. Tuolumne County Elec., etc., Co., 76 Cal.App. 569, 245 P. 468, 472, a like question was presented, and this court held that such an argument was ‘untenable, and does not relieve the company from liability for failure to protect its wires or take the ordinary precautions which the circumstances demanded.’ Again in Smith v. San Joaquin etc., Power Corp., 59 Cal.App. 647, 649, 211 P. 843, the court sustained the contention of plaintiff that if the tree in question stood in such a position as to endanger the defendant's wire, the defendant should have properly protected the same, and in failing to do so its omission was an act of negligence.

In the case of Sullivan v. Mountain States Power Co., 139 Or. 282, 9 P.2d 1038, 1044, which case is cited with approval in the Irelan-Yuba case, the court held as follows:

‘The required degree of care is always graduated according to the danger attendant upon the activity one is pursuing. The standard does not vary—it is the conduct of an ordinarily prudent person. But such an individual exercises care commensurate with the dangers to be avoided and the likelihood of injury to others. Such being true, it may be well to take note of the harmful quality of electricity. Electricity is a dangerous force whose destructive qualities are greatly facilitated by its subtle, invisible, and mysterious nature. Since the plant where it is generated is often many miles distant from the place of consumption, the transmission lines frequently pass over country roads, city streets, through forests, and other places where danger to life or property lurks if the electrical current escapes from the conduit. The length of the transmission wires renders impossible the character of supervision generally bestowed upon other dangerous substances.

‘* * * Accordingly, we conclude that the defendant, in the performance of its duty to maintain its right of way safe for the transmission of electricity, was bound to exercise a degree of care commensurate with the highly dangerous commodity which it was conveying over its wires. This duty remained unperformed so long as it permitted trees to grow in such close proximity to its uninsulated wires that it, in the exercise of the judgment of a reasonably prudent person, should have known that the tree and the wires would come into contact in a manner that would endanger the safety of others or their property.’

Defendant's second contention is that the court committed reversible error in precluding its cross-examination of a witness for the plaintiffs, Harvey Brown, concerning his arrangements with the plaintiffs relative to the cutting down of trees on their property. Defendant's argument in support of such contention is that since its answer raised the issue of contributory negligence, it should have been allowed to show that if Brown considered the tree hazardous, then by reason of the alleged agency relationship between him and plaintiffs, his knowledge, under the law, would become the knowledge of plaintiffs. The same argument is also made as to the court's restriction of its cross-examination of plaintiffs concerning the same matter. Obviously such contention includes two assumptions: (1) That Brown was the agent of plaintiffs, and (2) that plaintiffs as owners of the adjacent land were thereby under a duty to inspect the trees naturally growing on their land.

The last mentioned contention of defendant, and the assumptions therein contained, can best be considered together with its next contention that the trial court erred in taking the issue of plaintiffs' alleged contributory negligence from the jury. Defendant's argument in this regard in substance appears to be that if it was a question of fact for the jury whether or not defendant was negligent in failing to take precaution against the tree falling thereby causing the power line to come in contact with the telephone lines, then likewise it was a question of fact whether or not plaintiffs were contributorily negligent for the same reason, and hence both were questions of fact for the jury. As previously noted, inherent in such contention is the assumption that plaintiffs as the owners of adjacent land were thereby under some duty to inspect the trees naturally growing on their land, and if necessary to alter the natural conditions of their property. Neither party has cited us to any California case directly in point. However, to carry defendant's contention to its end result would be to charge the owners with responsibility for damage arising from the natural conditions of the country through which the power line ran. As the court noted in Salmon v. The Delaware, Lackawanna and Western Railroad Co., 38 N.J.L. 5, 20 Am.Rep. 356, in the absence of special legislation a man does not become a wrongdoer by leaving his property in a state of nature.

The only statute in point appears to be Rule 35 of General Order 95 of the P.U.C. which provides in part that when overhead wires pass through trees, safety demands a reasonable amount of trimming; and that ‘* * * trees so located they can fall into a crossing span or into any span that could communicate the trouble to a crossing span, shall be removed wherever practical.’

It would thus appear that the inspection and removal of trees near a power line is the duty of the defendant—not the property owner. Furthermore there is no question but that it was he defendant alone who selected the location of its power line, unaided and unaffected in any way by plaintiffs. The route so selected was in virgin mountain territory. The tree itself was not planted by plaintiffs—it was a wild native tree which partook of the character of the land itself. Under such circumstances it cannot be said that the taking of plaintiffs' land under the statutory authority vested in defendant, and the building of the power line, that thereby defendant could impose upon plaintiffs the duty of inspecting trees in order to make safe the transmission of power over those lines. The very essence of Order Number 35 in no way reflects upon the use to be made of the franchise, but rather is to effect the safety of its operations.

In view of what has heretofore been said, it is manifest that plaintiffs were not chargeable with any legal neglect for failure in not inspecting trees along defendant's right of way, nor for failure to remove any which might have appeared to be dangerously close thereto. Neither were they called upon to anticipate negligence on the part of defendant and by way of prevention to make provision against its effects. Here the fire in question was found by the jury to have been caused by the tree which fell upon the high-powered lines of defendant which in turn energized the telephone lines, and since, as we have concluded, plaintiffs owed no duty to defendant to anticipate such an occurrence, plaintiffs were not compelled to alter the natural characteristics of their land or to place it in a condition to withstand such a result, and hence could not be guilty of contributory negligence in failing so to do. It necessarily follows that the trial court did not err in taking the question of contributory negligence from the jury. For like reasons the trial court did not err in limiting defendant's cross-examination of the witness Brown or of plaintiffs since the result sought by defendant related to plaintiffs' knowledge of the possibility that the tree might fall—a fact immaterial to the issues.

Defendant next contends that the trial court erred in admitting over its objection, testimony relative to experiments made by the witnesses Saunders and Pritchett. As previously noted, these witnesses were electrical engineers now serving as professors at the University of California. After exhaustive questioning concerning their knowledge of the case, they were asked concerning the experiments which they made; that is, whether power escaping down telephone lines and into a telephone switchboard in the manner shown by the evidence could break down such equipment and cause a fire. They both replied in the affirmative. Certain of their experiments, of which there were seven, were stricken; the remainder, however, were allowed to remain in the record. Defendant now contends that it was error to allow any of their testimony, primarily because it did not meet the necessary standards of such testimony, and secondly because it allowed the jury to speculate.

The rule is well established that at the outset testimony as to experiments is primarily addressed to the discretion of the trial court. However, “it must appear that the conditions or circumstances were in general the same in the illustrative case and the case in hand * * * the determination whether the conditions were sufficiently similar to make the experiments of any value in aiding the jury is a matter resting in the sound discretion of the judge.” People v. Mondshine, 132 Cal.App. 395, 397, 22 P.2d 779, 780. A like statement is found in Ortega v. Pacific Greyhound Lines, Inc., 20 Cal.App.2d 596, at page 597, 67 P.2d 702, 703. ‘The conditions surrounding a test or experiment of this nature need not be identical with those existing at the time of the occurrence in question provided there is a substantial similarity. [Citing cases.] The admission of such evidence is largely a matter of discretion with the trial court, and such a test is merely a circumstance to be considered in connection with other evidence in the case.’ Again, as the court noted in People v. Levine, 85 Cal. 39, 43, 22 P. 969, 24 P. 631, 633, ‘The proof of the result of experiments was equally as open to the defendant as the prosecution, and if other experiments would have shown a different result from that shown by the experiment proved by the prosecution, the defendant had ample opportunity to show the fact. The books are full of authorities sustaining the court in admitting evidence of the result of experiments * * *. [Their] result was not conclusive, but a mere circumstance to be considered in connection with the other evidence in the cause. [They were] both competent and admissible; [their] weight was for the jury to determine.’ A like statement is found in the frequently cited case of County of Sonoma v. Stofen, 125 Cal. 32 at page 38, 57 P. 681, at page 683. ‘Experimental evidence in corroboration or disproof depends for its value upon the fact that the experiment has been made when the conditions affecting the result are, as near as may be, identical with those existing at the time of and operating to produce the particular effect. An absolute identity is, of course, impossible; but a substantial identity must exist to give the evidence value.’

Here the experiments in question illustrated the effect of excessive voltage on what is termed a Kellogg arrestor which was attached to the pine board, the base of the telephone connections in the lodge. It obviously was tendered as an aid to and for the assistance of the court and jury in obtaining a clearer understanding of the extremely technical testimony which was introduced by both sides. Under all of the facts and circumstances presented by the record in this case, we cannot say that the court abused its discretion in receiving such demonstrative evidence.

Defendant's next contention attacks the admission of certain evidence by the trial court. It is first contended that specified testimony given by the two experts, Saunders and Pritchett, was improper since they were not qualified as experts on fire. Specifically, defendant attacks the testimony of these two witnesses relating to the insulation, relocation of transformers and adjustment of circuit breakers. When all of the testimony relative to these questions is read as a whole, it is quite apparent that all were a part of a series of hypothetical questions on the same subject. We do not understand defendant to contend that the field of electricity generally is of such a commonplace nature as not to warrant the use of experts, but rather that the two witnesses were not experts on fire, and that the particular questions were improper. Here the specific facts which were sought to be introduced by the plaintiffs related to whether or not certain arrestors would disintegrate and set a fire through the application of electricity; whether or not the insulation of power lines carrying 11,000 volts would reduce the fire hazard; if the relocation of a transformer, thereby reducing the 11,000 voltage on the tap line to 110 volts, would reduce the fire hazard; and if a different adjustment in the circuit breaker at the power house would reduce the fire hazard. It is evident that each of the basic questions involved related to the general question of the force of electricity of certain voltage when exerted upon other objects. We do not understand such general questions to fall within the category of arson or fire experts generally, but more properly came within the realm of expert testimony by those particularly trained in the field of electricity. Certainly electricity, with its many ramifications and unusual behavior and the ever present threat of fire, was a proper subject for such witnesses to give testimony on as experts.

Defendant's next contention is likewise without merit; that the court in denying its motion for a judgment notwithstanding the verdict since no causation was proved between defendant's transmission line and the fire in plaintiffs' building, was therefore in error. It would seem unnecessary to labor this contention. Suffice it to say that there was direct evidence that the circumstances described at length by both parties would have started the fire. The weight of such testimony was for the jury, not this court on appeal.

The defendant further contends that the court erred in not striking the testimony of one Eckels who testified that he was awakened by sparks flying from a switch to which was attached an electric heater; that he was quite sure his telephone line was operating the day before the tree fell, and that it did not operate thereafter until repaired. Even assuming that such testimony was not shown to be connected with this case, in view of the great amount of like testimony by other witnesses to the same effect, it cannot be said that the admission of this particular testimony was so prejudicially erroneous as to warrant a reversal.

Defendant's final contention is based upon the alleged error of the trial court in allowing a certain photograph, introduced by plaintiffs for identification only, to have been taken by the jury and viewed by it during its deliberation, and in denying defendant's motion for a new trial on this ground. It appears that at the hearing on defendant's motion for a new trial, plaintiffs presented affidavits by two workmen, residents of the vicinity, who averred that they knew the particular tree; that they were engaged to clean up the area where it had fallen; that the exhibit in question was a photograph of the same tree; and that certain exhibits of defendants, introduced in evidence, were views of the same tree. Again, assuming but not so deciding, that it was error to allow the jury to view the photograph, we cannot say it was such error and so prejudicial as would warrant this court in interfering with the determination made by the trial court. California Constitution, Article 6, § 4 1/2.

The judgment is affirmed.

PEEK, Justice.

VAN DYKE, P. J., and SCHOTTKY, J., concur.

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