Shade v. Bay Counties Power Co.

McFARLAND, J.

This action was brought jointly by the parents and widow of John Chester Shade, deceased, to recover damages for the death of said deceased, alleged to have been caused by the negligence of the defendant. The plaintiffs are the only heirs of the deceased. The jury returned a verdict for plaintiff, fixing the damages at eight thousand dollars, for which amount judgment was rendered. From the judgment and from an order denying defendant’s motion for a new trial the defendant appeals.

Defendant makes a number of contentions for a reversal, but under our view of the case only one of these contentions need be specially considered,—namely, that the facts show as a matter of law that the deceased was guilty of contributory negligence, which was the proximate cause of his death, and therefore defendant’s motion for a new trial should have been granted, etc. We think that this contention must be sustained.

With respect to the principle of contributory negligénce, it is well established “that where the facts are clear and undisputed, and where no other inference than that of negligence can be drawn from them, the court is not required to submit the question to the jury, but may itself make the inference.”

(Studer

v.

Southern Pacific Co.,

121 Cal. 400, [66 Am. St. Rep. 39, 53 Pac. 942].) In Thompson on Negligence (vol. 1, sec. 1249) the rule, supported by ample authority, is stated to be that “the traveler cannot recover if he could have avoided the accident by the exercise of reasonable care on his part.” (See, also,

Flemming

v.

Western Pacific R. R. Co.,

49 Cal. 253.)

In the ease at bar the facts were these: At the time of the occurrences out of which this litigation arose the defendant

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was the owner of an electric-power system and carried electricity by means of poles and wires along and over the side of the American Cañón public road in Solano County. On the morning of July 4, 1904, the deceased, Chester Shade, and seven other persons were traveling in a three-seated two-horse wagon along said road, and when approaching a certain bridge they saw that a few yards on the other side of the bridge one of the electric wires of defendant’s system had become detached from a pole and was hanging down over the side of the road a few feet from the ground. The wagon was stopped on or about the middle of the bridge, which was about forty-one feet long, so that when the wagon was stopped it and its occupants were about thirty feet away from the hanging wire. The deceased and one of the parties, named Hodges, got out of the wagon and went a short distance towards the hanging wire. The deceased then returned to the wagon and took from it a small rope or cord, about a quarter of an inch thick and about four feet long, and started with it towards the wire. Another party, Forbes Brown, said to him, “Don’t touch the wire, Chester, whatever you do,” and the deceased replied, “There is no danger of my doing that; I would not think of doing that.” The deceased and Hodges then went near to the wire, which had attached to it an instrument in the form of an insulator. It does not appear to what extent this insulator was intended to be a protection to appellant’s employees even when the wires were in proper position on the poles. It appears that it was not a protection against a large voltage, which sometimes passed' through the wires. It appears to have been fastened to the wire on one side only, so that it was more dangerous to touch it at some points than at others. Moreover, it had been broken by the fall, and pieces of it were lying on the ground near the pole. The deceased approached the hanging wire quite closely, for he threw the end of the short cord over the insulator and fastened it there by a knot. He then reached toward Hodges for a flagpole which the latter had, and to which he intended to tie the cord, when he received a charge of electricity, which caused his death a day or two afterwards.