Smith v. San Joaquin Light & Power Corp.

STURTEVANT, J.

The plaintiff, through his guardian

ad Uiem,

commenced an action against the defendant to recover damages for personal injuries. Judgment was entered in favor of the plaintiff and the defendant appealed under section 953a of the Code of Civil Procedure.

The defendant owned and operated as a part of its general system, an electric power line consisting of wires strung on poles in the usual manner along the north side of the public highway known as North Avenue in the county of Fresno, running west from the public highway known as Elm Avenue, to and beyond the intersection of said North Avenue with the public highway running north and south known as Fruit Avenue, which power line was used for the purpose of transmitting and distributing electricity for light and power purposes to various consumers. In the morning of November 10, 1920, the plaintiff, a child of seven years, whose parents lived on the south side of North Avenue, was sent to a neighbor’s house on the north side of said avenue for some milk. After procuring the milk and while on his way home walking on the north side of the avenue, which is a county highway, he observed a wire hanging from the top of a pole and reaching to within a foot or two of the ground. This wire, at the time, was charged with electricity. The lad took hold of the wire, with the result that he was very severely injured. As stated in the complaint, his right arm was so badly burned that it became necessary to amputate the same, and the same was amputated at a. point below and near the elbow. The jury’s verdict was for the sum of twenty thousand dollars. The defendant thereafter served and filed a notice of intention to move for a new trial, but the record does not disclose the fact that the motion was ever made or if made on what grounds. Neither does the record disclose any motion or other attack in the trial court on the amount of the verdict.

In instructing the jury the trial court, at the request of the plaintiff, stated to the jury that in such a case the

[649]

doctrine of

res ipsa loquitur

applies. The appellant makes no attack on the language used by the court, and does not claim that the instruction was improperly worded. The objection in this behalf made by the appellant is that the case as made by the pleadings is not a proper case to apply that doctrine. In this contention we think that the California rule is otherwise.