Young v. Vallejo Electric Light & Power Co.

RICHARDS, J.

This appeal is from a judgment of the superior court in and for the county of Solano, based upon the verdict of the jury in favor of the plaintiff in the sum of $2,000 and costs, in an action brought by the plaintiff to recover damages from the defendant resulting from the destruction of a dwelling-house of the plaintiff through a fire which was alleged to have been caused by contact with the electrically charged wires of the defendant which it was alleged to have negligently maintained in such a position as to permit them to rest upon the roof of the plaintiff’s said dwelling, after being notified to remove the same therefrom. The complaint alleged that the plaintiff’s predecessor, William S. S. Young, had, on or about the thirtieth day of April, 1919', entered into a written agreement for the purchase of a certain vacant lot in a tract known as “Vallejo Heights,” located near the city of Vallejo, from William D. Pennycook and his wife, the then owners thereof, whereby they had given to .said Young the right to take and hold possession of said property and to occupy and improve the same. At the time of making said agreement and for some time prior thereto there was extended and maintained over and across said lot from a service pole of the defendant located on one of the streets of said tract two live electric wires for the purpose of supplying a house which adjoined said vacant lot with electricity. The complaint further alleged that the defendant had so constructed and extended said wires across said vacant lot while the same was owned by said Pennycook without his consent or knowledge, and had thereafter maintained the same across said premises without the permission or consent of the owner thereof. The complaint further alleged that immediately after entering into the said contract for the purchase and sale of said lot Young entered upon the same and commenced the construction thereon of a one-story wooden dwelling-house at such a position upon the lot that it was

[640]

located immediately beneath the said electric wires; and that said Young continued the construction of said dwelling-house to completion so that when the same was erected said live electric wires rested upon its roof; that during the course of the construction of said house Young notified the appellant to remove said wires, but that it failed and neglected so to do, but continued to carelessly and negligently maintain said wires upon and across said lot and in immediate contact with the roof of the said dwelling which Young had thus erected. Shortly after the completion of said building Young apparently undertook to diminish the danger resulting from the contact of said live wires with the roof of his dwelling by inclosing the same, at their place of contact, with a piece of rubber hose about three feet long and three and a quarter inches in circumference, but notwithstanding this action on his part the roof of said house took fire at or about the place where said wires crossed and came in contact with the roof of said house, with the result that the house with its contents were entirely destroyed by said fire, to the damage of said Young in the amount for which said suit was brought. The answer of the defendant denied all the material allegations of the complaint with reference to these imputed negligences, and alleged contributory negligence on the part of the owner of said dwelling in erecting the same vso that its roof came in contact with the defendant’s wires, and also in attempting to inclose said wires within said piece of rubber hose, which directly and proximately caused or contributed to the destruction of said house by said fire. The issues in the ease were submitted to a jury, which returned a verdict in favor of the plaintiff for the aforesaid sum. Prom the judgment rendered thereon the defendant has prosecuted this appeal. The evidence in the case was uncontradicted in so far as it related to the location of said wires, and that they had been so placed and maintained without the consent of the owner of the premises, and since there was no evidence introduced which showed that the defendant was maintaining its wires and electric service across said lot under any acquired right so to do from the previous owner thereof, it must be assumed in support of the verdict that the jury found the defendant to have been a trespasser on said property in so doing, and that being such trespasser