Wales v. Pacific Electric Motor Co.

GAROUTTE, J.

This is an appeal from a judgment in favor of Mary Wales, based upon the death of her son, alleged to have been killed by coming in contact with h live electric wire, which was improperly insulated and maintained by defendant in violation of an ordinance of the city of San Francisco'. Deceased was 'engaged in painting a building at the time, and, while changing the position of the wire by taking hold of it, he received a shock which precipitated him to the street below and caused his death. The facts are ample tó support the verdict, and it is unfortunate that the giving of certain instructions to the jury constitutes error which demands a retrial of the case.

The electric wires were situated upon the cornice of the builds ing and fastened thereon by wooden brackets. Itjis in evidence that one of these brackets had been broken off from its position by the foreman of the painters a short time prior to the accident, which act probably changed, to a very limited extent, th'e location of the wire which subsequently caused the death of the deceased. In view of the 'evidence upon this point, the defendant requested, and the court gave, the following instruction to the jury: “That before plaintiff can recover in this action yon must be satisfied that her decedent, without contributory negligence on his part, received his injuries by ccjming in contact with a wire in the position in which it was maintained

[523]

by the defendant; and if you find that he received his injuries by coming in contact with a wire which had been broken from the insulator, and not in the position in which it was maintained by the defendant, then your verdict should be for defendant.” By reason of our conclusion as to the unsoundnossof another instruction we will not analyze the foregoing proposition of law in detail. If it be intended by the language used to declare that a mere change in the position of the wire by some extraneous element, after it was originally placed upon the building by defendant, in violation of a city ordinance, acquitted it of negligence in this case, then the instruction is-radically wrong. Defendant placed the wire upon the building and used it there, and the mere fact that the location of the wire may have been subsequently changed by some extrinsic cause, of itself, in no way defeats plaintiff’s right of recovery. Defendant maintained the wires upon the building in violation of the ordinance, and would be equally guilty regardless of any change in their position. As already suggested, it becomes unnecessary to decide whether or not the jury disobeyed this instruction in finding a verdict for the plaintiff.