Brown v. Northern California Power Co.

Negligence—Loss by Dire—Nearness oe Power Line to Telephone Line—Besetting Telephone Poles—Blowing Over op Telephone Wire in Storm—Pleading.—In an action for alleged negligence of a power company in connecting its power line within three feet of a telephone wire, and in resetting the telephone poles to lean away from the power line, and that owing to their proximity the telephone wire was driven by a storm against the power line, causing the loss of plaintiff’s property by fire, the recovery by plaintiff must be limited to the charges of negligence stated in the complaint. No recovery can he had on any acts of negligence not alleged.

Id.—Burden of Proof to Show Loss from Negligence.—The burden of proof is upon the plaintiff to show that the contact of the two wires which caused the loss was caused by some negligent act or acts alleged in the complaint.

Id.—Support of Findings.—Where the trial court found that the fire was caused by the contact of the telephone line with the power line, hut was not caused by the proximity of the lines, nor by any wrongful acts or negligence of the defendant, it is held that upon a careful consideration of the evidence the findings of the trial judge are amply supported, and are beyond disturbance by the appellate court.

Id.—Proximity of Lines — Undisputed Fact — Negligence not Presumed in Law.—The mere undisputed fact that the defendant constructed and maintained its power line of twenty thousand volts, which is a much higher voltage than that of the telephone line, within a distance of three feet from the telephone line, does not warrant a presumption of negligence on the part of the defendant per se, as matter of law.

Id.—Cause of Contact of Wires—Question of Fact—Negligence— Superhuman Cause—Conclusive Findings.—The question of fact which necessarily arises, in view of the proximity of the wires, is as to the cause of the contact between them, whether the actual negligence of the defendant, or an “invisible superhuman cause.” The findings upon that question of fact are conclusive that it was not caused by any negligence of defendant in resetting the telephone poles, but was the result of a heavy wind storm in December several months after the completion of the power system, which caused the breaking of a telephone pole and threw the telephone wire against the power line, thus proximately causing the fire.

Id.—Order Denying New Trial—Discretion.—The trial court had discretion to deny a new trial on the ground of insufficiency of the evidence, and where there is evidence which supports its findings, the order denying a new trial must be affirmed.

Id.—Vacation of Order of Supreme Court Granting Hearing in Bank—Absence of Judge from State.—Where an order granting a hearing in the supreme court, after decision in the district court of appeal depended upon the concurrence of four justices, one of whom was absent from the state when the supreme court made its order, the order granting the rehearing is void, and must he vacated.