LENNON, J., Dissenting.
I dissent. In this action for damages for personal injuries sustained by the plaintiff while in the employment of the defendant, a corporation engaged in the business of generating, transmitting, and
[555]
distributing electricity for lighting, heating, and power purposes, the prevailing opinion reversed the judgment in favor of the plaintiff upon the theory that the evidence adduced upon the whole case did not support the finding of ' the jury, implied from their verdict, that the defendant was guilty of gross negligence in the maintenance and operation of that part of its power plant' where the plaintiff was injured during the course of his employment. The prevailing opinion holds that defendant corporation was not guilty of gross negligence. I cannot concur in this conclusion.
The facts of the case, as I find them from a perusal of the record, are these: Along defendant’s main transmission line, which carries electricity at one hundred thousand volts from its generating plant or power-house in Butte County to San Francisco Bay, are several substations. These substations are installed for the purpose of reducing the voltage carried by the main transmission line for distribution from the substations for commercial use in the "surrounding districts. At /the • time plaintiff was injured he was employed as an operator at one of the substations of defendant located at Isleton, California. It is the duty of an operator in such a substation to watch the apparatus and keep it in proper working condition. In this substation where plaintiff was employed were three transformers, standing in a row north and south. They were eleven feet in height, six or seven feet in diameter, and consisted of coils of copper wire in a metal casing, into which the electricity was carried at one hundred thousand volts by means of wires connected with the main transmission line. After being reduced in voltage, the electricity was carried from the transformers at twenty-two thousand volts by wires issuing from the covers of the transformers. The covers of the transformers, which were of boiler iron, were rounded, sloping from the center toward the edges the only fiat portion of the surface being a manhole cover about eighteen inches wide and two feet long. Upon the top of each transformer, projecting at an angle therefrom and close to the edge of the transformer shell, were two bushings, four and one-half feet in height and about ten inches in diameter at the bottom, tapering toward the top. The purpose of these bushings, which were made of fibre rings alternating with
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fibre discs, was to insulate the one hundred thousand volt wires so as to prevent the electricity running to ground over the metal shell of the transformer. There were .also two smaller bushings for the purpose of insulating the twenty-two thousand volt wires issuing from the tops of the transformers, but they are of no importance for the purposes. of this case. In addition to the connection with the main transmission line, the several substations were also electrically connected between themselves, so that, in case of a shut-down at any one substation, electricity. could be fed to the district thus affected from other substations.
It was the custom to shut down the substations once a month in order to clean the apparatus of the substations, and this was ordinarily done after midnight when the demands for electricity were at a minumum. There were three operators at defendant’s substation at Isleton-—Dorman, the chief operator, Post, and the plaintiff. It was arranged to have a general cleaning of this substation after midnight, November 3, 1913, and plaintiff, in compliance with a direction from Dorman, opened the switches for the purpose of shutting off the current from the wires leading into and out of the substation. All of the wires and apparatus in the substation were thus entirely freed from electricity with the exception of the station bus, which consisted of three parallel .wires near the roof and about twenty feet from the ground, running east and west (at right angles to the row of transformers) across the south end of the building, and feeders dropping therefrom into oil switches set on the shelf against the south end of the building. This station bus -was fed from other substations and carried electricity at twenty-two thousand volts. No cleaning was to be done on the station bus and it was left charged in order to furnish electricity to the neighboring towns and light for the substation while the high-tension bank was shut down during the cleaning process. After the substation was thus shut down the three operators went upon the roof of the building to clean some of the apparatus. They then began to work inside the building and Dorman told plaintiff to “take No. 3,” meaning thereby to clean the bushings and wires on the top of the transformer farthest toward the south, known as “No. 3.” Plaintiff, standing on the top of the transformer, cleaned its north bushing
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and then proceeded to work on the south bushing. After cleaning the south bushing, he began to dust the wire above the bushing. He had a cotton rag, about two feet square, and with this rag reached up as high as he could to clean the upper part of the wire and then, holding the greater part of the rag in his hand, wiped down the wire. Just as he was dropping his hand to his side, the back of the hand was struck by a flash from a live twenty-two thousand volt wire of the station bus, which was just to the south of the transformer upon which plaintiff was standing. The electricity severely burned the back of his right hand and right forearm, and passed through his body, burning the sole of each foot. The shock threw him off the transformer to the floor beneath. On the night in question there was “a very heavy -fog, everything was just wringing wet,” and this condition prevailed inside as well as outside the substation, owing to the doors of the substation being left open for ventilating purposes. At the time he was injured plaintiff was twenty-one years of age and had been working at Isleton about a month. Although he had worked in electricity to some extent before coming to Isleton, he had no experience with high voltage other than one month’s 'work as an operator at defendant’s substation at Cowell. The jury rendered a general verdict in favor of plaintiff for damages in the sum of $6,735.83. On defendant’s motion for a new trial the court- made an order granting the new trial unless plaintiff stipulated to deduct from the damages awarded the sum of $1,735.83. This was consented to by plaintiff and the motion for a new trial was thereupon denied, whereupon the defendant appealed from the judgment.
It is contended by appellant, and the prevailing opinion holds, that gross negligence has not been proven. The distance between the dead one hundred thousand volt wires which plaintiff was cleaning and the nearest point of the live twenty-two thousand volt wires of the station bus was twenty-eight and one-fourth inches according to appellant’s measurements, thirty-one inches according to the estimates of witnesses for respondent. Plaintiff’s hand, owing to the thickness of the rag he held and the movement in dropping his hand to his side, was about twenty-one inches from the nearest live wire at the time it was struck. It is pointed
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out by appellant that it was testified to at the trial by the expert witnesses, including those who testified for plaintiff, as well as those called by the defendant, that the arcing distance of twenty-two thousand volts of electricity is, under no conditions, more .than one and two-tenths inches; that is to say, the air space across which a current of electricity .will jump in its effort to reach the ground is ordinarily less than one inch, and, under any circumstances, never greater than one and two-tenths inches. Opposed to this expert testimony is the testimony of the plaintiff that the current “jumped right over through the air and it caught me on the back of the hand.” It is further pointed out that, since electricity seeks the path of least resistance and there were other conductors nearer the wire than plaintiff’s hand, had the electricity jumped from the wire it would have done so, not a distance of twenty-one inches to plaintiff’s hand, but to the conductor the shortest space from the wire, such as the lightning-arrester outside the substation.
The theory is advanced by appellant, in support of the contention that the evidence fails to show any negligence on the part of the company, that, since plaintiff’s hand was admittedly twenty-one inches away from the live wire at the time it was struck, plaintiff must have carelessly brought his rag, by shaking or otherwise, or some other conductor, within an inch of the live wire and thus drawn an arc. It is further argued that, if the. twenty-two thousand volts did arc twenty-two inches directly to the back of plaintiff’s hand, the occurrence was so unheard of and opposed to every known principle of electricity that it was purely an accident and not a" danger which appellant was required to guard against in providing for the safety of its employees.
However that may be, and assuming that twenty-two thousand volts could not jump twenty-one inches, there is no reason thus presented for disturbing the verdict in this case. There were no special findings, simply a general verdict in favor of plaintiff. “It is, of course, the duty of this court to treat all of the facts brought out by the evidence which are necessary to support the verdict as having been found to be true by the jury”
(Clark
v.
Tulare Dredging Co.,
14 Cal. App. 414, 429, [112 Pac. 564, 570]), and, conversely the verdict of the jury cannot be assumed to be based on inherently improbable testimony if there is
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other testimony sufficient to support the verdict. Plaintiff’s action was based upon the alleged personal gross negligence of defendant in maintaining a live twenty-two thousand volt wire in too close proximity to the place where plaintiff was required to work, because of which plaintiff was injured by a current of electricity which “jumped and passed” from the said live wire “and came against and in contact with plaintiff’s right hand and arm.” Consistently with these allegations of the complaint, plaintiff might have drawn an arc by a close approach to the live wire with his rag and, the arc having once been formed, it could, according to the testimony of the expert witnesses, be extended for two or three feet. The jury was entitled to infer, from the evidence adduced upon the whole case, that this was the manner in which the current “jumped and passed” to plaintiff’s hand despite plaintiff’s general statement that the spark jumped directly to the back of his hand.
(Follmer
v.
Rohrer,
158 Cal. 755, [112 Pac. 544];
Bancroft-Whitney Co.
v.
McHugh,
156 Cal. 140, [134 Pac. 1157];
Lynch
v.
Lynch,
22 Cal. App. 653, [135 Pac. 1101];
Turner
v.
Bush
(Cal. App.), 185 Pac. 190.) It is not, therefore, essential to the general verdict in favor of plaintiff, to assume that the jury found that the electricity jumped directly through the air and, without the aid of any intervening substance, the entire twenty-one inches to the back of plaintiff’s hand.
Moreover, there was, in my opinion, evidence tending to show the existence of gross negligence, irrespective of the question of the arcing distance of the twenty-two thousand volts of electricity. While the employer is not an insurer of the safety of his employees, he must furnish a place to work in which is “reasonably safe, having regard to the character of the work itself.”
(Spivok
v.
Independent Sash & Door Co.,
173 Cal. 438, 440, [160 Pac. 565, 566].) The jury when arriving at a general verdict were warranted to taking into account the dangerous nature of electricity, the high voltage which the wires carried, the youth of plaintiff, his inexperience in high-voltage work, the fact that he had never before performed the particular duties upon which he was engaged at the time of his injuries. It further appears that at least one expert witness, a consulting engineer, testified that, although twenty-two thousand volts could not arc over one and two-tenths inches, the place in which plain
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tiff was working was not a
safe
working distance from the live wires, and that, under the circumstances, twenty-eight and one-fourth inches, or even thirty-one inches, was in dangerous proximity to the twenty-two thousand volt wire, because of the likelihood that a person working in that position would come sufficiently close to the live wire to produce a short circuit. It was stated by this witness, and others, that the only safe method of construction in a situation of that kind was the erection of a concrete barrier in the form of a concrete wall about the transformers; that this was the general practice; that the wires were thus properly protected in other substations belonging to the defendant; and that this “barrier should be there for a twofold purpose—one for operating purposes and the other for the safety of anybody working in the cell.” There was testimony, and it is conceded, that if the barrier had been erected in this case the occurrence now under consideration could not have happened. The evidence also shows that the standard distance between one hundred thousand and twenty-two thousand volt wires is between thirty-six and forty-two inches, but in one or two cases where there were building difficulties, as at Isleton, this distance was cut down. There is also evidence that, by installing a switch at a cost of less than one hundred dollars, it would have been possible to render the substation entirely free from current by shutting off the current from the station bus and obtaining light for the substation from a small transformer-house outside the substation.
While most of the evidence above set forth was by no means uncontradicted, the weight of the testimony was, of course, to be determined by the jury. Viewing the record as a whole and irrespective of any conclusion this court might reach from the same evidence, it cannot be said that the jury was unwarranted in concluding that, even assuming that the electricity could not directly arc a distance greater than one and 'two-tenths inches, defendant failed to exercise the required degree of care for the safety of its employee in requiring him, under the above-described conditions' and in an inconvenient location such as that presented by the transformer cover, to work within twenty-eight and one-fourth, or thirty-one, inches of a live twenty-two thousand volt wire and unprotected therefrom.
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This, I take it, must be so in keeping with the rule generally accepted and uniformly invoked in the admeasurment of the degree of care required of electric companies for the safety of their employees, and which is to the' effect that, while such companies are not required to operate their plants to the point of perfection in so far as concerns the material construction of the plant or the character of the apparatus and appliances, for the reason that they are not insurers of their employees against accident, nevertheless, they are obligated to use reasonable care, that is to say, such care as, under all the circumstances, would obviously be required in a given situation in the construction, maintenance, and operation of their plants. Falling short of this, they will generally be held responsible for resultant injuries to employees. It is a reasonable corollary of this rule that the degree of care to be employed by electrical companies in the maintenance and operation of their plants varies with the degree of danger dependent upon a particular situation, for, obviously, a prudent person, individual or corporate, must augment the character and quantity of the care according to the contingencies of differing and varying situations. Thus, if the danger of injury to an employee is but slight, as, for instance, in a situation involving the likelihood of contact with transmission wires carrying merely a harmless current of electricity, as do ordinary telephone and telegraph wires, ordinary care only will be demanded of the company in the maintenance and operation of such wires. On the other hand, where the transmission wires are heavily loaded with high voltage, a very high degree of care—indeed, the highest degree of care commensurate with human prudence and caution and consistent with the practical conduct of business—is required to guard against accident or death which inevitably follow contact with such high-voltage wires. (Crosswell on Electricity, sec. 234; Curtis on Electricity, sec. 405.) The rule is, perhaps, better stated in the case of
Uggla
v.
West End Street Ry. Co.,
160 Mass. 351, [39 Am. St. Rep. 481, 35 N. E. 1126], where it is said: “The vigilance and attention required must conform to the nature of the emergency and the danger to which others may be exposed, and is always to be judged of according to the subject matter, the danger and force of the material under the defendant’s charge.” This being so, then the
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question of whether or no the required care has been used is, in the majority of cases, necessarily one for the jury, except when the court can say positively that no reasonable man would have acted in the manner complained of, or that a reasonable man must have acted in the manner complained of.
(Lee
v.
Electric Light Co.,
140 Pa. St. 618, [21 Atl.
405]; Southwestern Tel. & Tel. Co.
v.
Woughter,
56 Ark. 192, [19 S. W. 575].)
With this rule in mind, and having in mind also the facts above referred to, namely, the high voltage, the insecure footing afforded by the cover of the transformer, the youth and inexperience of plaintiff, among other circumstances, I cannot concur in the conclusion of the prevailing opinion that the corporation defendant was not guilty of negligence in the maintenance of its plant or that part of its plant in which the plaintiff was injured while at work for the defendant. And surely if in keeping with that rule it can be fairly said, as I think it can be so said, that the corporation defendant was, under all of the circumstances of the shown situation, negligent in not making a known highly dangerous place reasonably safe to work in with the means at hand to do so, then in view of the further fact that the expenditure of the paltry sum of one hundred dollars by the corporation defendant was all that stood between the plaintiff and reasonable safety from serious injury, it is not difficult to see and rightly say that the corporation defendant was indeed negligent out of all measure and beyond all allowance, in a word, that it was guilty of gross negligence.
I would find no.difficulty in demonstrating that such gross negligence was the personal negligence of the corporation itself. But, in view of the'fact that the prevailing opinion rests a reversal of the judgment solely upon the ground that the evidence shows no gross negligence on the part of the defendant, it would be an idle act to discuss the question of personal negligence or any of the several other questions involved upon the appeal. '