Shearer v. Pacific Gas & Electric Co.

NOURSE, P. J.

Plaintiff sued for damages for personal injuries and had a verdict for $3,000. Three issues were submitted to the jury—the negligence of defendant, the contributory negligence of plaintiff, and the amount of damage suffered by plaintiff. The defendant concedes that the evidence was conflicting on the first and third issues. Substantial evidence was offered to sustain the verdict upon both of those issues, hence the only question open for argument on this appeal is whether the plaintiff was guilty of contributory negligence as a matter of law.

The evidence upon this issue is without substantial conflict. The plaintiff was the superintendent of the sanitary district in the city of San Anselmo. An unusual windstorm throughout the day had caused damage to defendant’s power lines maintained in the city. At about 2 o’clock P. M. one of defendant’s power lines parted and fell extending through a tree over and upon a truck used by the sanitary district and parked across the street opposite the offices of the district. At about the same hour plaintiff notified the defendant of the fallen wire and was assured that it would be attended to im

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mediately. Defendant failed to send anyone to fix the wire and also failed to shut off the currexxt. Three hours later two of plaintiff’s fellow employees came out of the district offices, one with a bamboo rake and one with a wooden caxxe, for the purpose of removing the wire from the truck so that it could be driven to its place of storage for the night. Plaintiff followed these employees across the street, and, before they were able to remove the wire, he took hold of the door handle with the intention of examining the contents of the truck before its removal. As he seized the handle of the truck he received an electrical shock causing the injuries for which he sued. Plis explanation of his conduct is that he assumed that the defendant had turned off the power during the three hours intervening between notice to the company and the time of the injury.

With this state of the facts two principles of law control the decision. (1) “One who is himself not negligent is entitled to rely upon the presumption that others will exercise due care, so that it is not negligence to fail to anticipate danger which can come only from a violation of law or duty upon the part of another.” (19 Cal. Jur., p. 596.) In permitting the charged electric wire to remain upon a public thoroughfare to the peril of the entire public the defendant was maintaining a public nuisance in violation of law. (Pen. Code, secs. 370, 372.) The plaintiff was entitled to assume that this violation would not continue. (2) “It is only when the facts are clear and indisputable, and when no other inference than that of negligence or contributory negligence can be drawn from the facts that the issue becomes one of law and not of fact.”