Granius v. Pacific Gas & Electric Co.

[128]

DRAPER, P. J.

After verdict and judgment thereon for defendant, plaintiffs’ motion for new trial was granted. Defendant appeals.

The action is for damages caused to plaintiffs’ house by a fire originating in a vacant building next door. In 1950 defendant removed its gas meter from the vacant building. Plaintiff husband testified that in May of 1956 and often thereafter he saw on that property an upright pipe, the open end of which was closed only by a wooden plug. He admitted on cross-examination that he had not notified defendant of this fact. The fire occurred in July 1957. There was evidence that at about where that pipe had been seen there was an “extra lot of fire,” “a flame shooting out” 8 to 12 feet, which was blown toward plaintiffs’ house. Defendant denied negligence and proximate cause and pleaded contributory negligence.

At the outset of the trial, immediately after calling the first 12 prospective jurors for

voir dire,

the court made a brief explanation of the ease, in which it pointed out that defendant had pleaded contributory negligence, stated that “at the conclusion of this trial I will explain the law involved in this case,” and then defined contributory negligence, making clear that “if the plaintiff who is claiming damages was himself negligent and careless and his own negligence and carelessness proximately contributed to his injuries he is not entitled to recover.”

During trial, but out of the presence of the jury, defendant withdrew the issue of contributory negligence. Defendant offered no instruction on that subject, and plaintiffs did not request an instruction that the issue had been withdrawn. In the instructions given after the close of evidence and arguments, the court made no reference whatever to contributory negligence.

In its memorandum opinion granting the motion for new trial, the court pointed out the absence of instruction on contributory negligence, and concluded that “ [a]lthough the plaintiff did not offer any instructions on this subject the Court is of the opinion that the jury may have been misled” by the absence of an instruction removing the issue from jury consideration.