Kerstens v. Pacific Gas & Electric Co.

STURTEVANT, J. The plaintiff sued to recover damages for personal injuries. The action was tried before the court sitting with a jury. A verdict was returned in favor of the defendant. The plaintiff made a motion for a new trial specifying all of the statutory grounds. Thereafter an order was made that the motion be granted. From that order the defendant has appealed under the alternative method.

In its brief it makes only one point and that is that the evidence showed the plaintiff was guilty of contributory negligence as a matter of law. In that connection it concedes that in instructing the jury the trial court erroneously gave an instruction which in part was as follows: “Before the [490]plaintiff can recover against the defendant he must prove by a preponderance of the whole evidence . . . that the plaintiff was himself not guilty of negligence contributing to the accident and the resulting injuries.” Continuing, it asserts that because of said error the trial court granted a new trial. Although the record "does not show the fact, we will assume the statement of the defendant is correct. Further continuing, the defendant asserts the evidence showed that the plaintiff was guilty of contributory negligence as a matter of law. Thereupon it argues that in giving the erroneous instruction the error became immaterial. If, as contended by the defendant, the plaintiff was guilty of contributory negligence as a matter of law, the order appealed from should be reversed, otherwise it should be affirmed. We therefore pass to a consideration of the facts recited in the defendant’s brief on which it is asserted that the plaintiff was guilty of contributory negligence as a matter of law.

The accident occurred on August 7, 1929, at about 10 o’clock in the morning. The plaintiff was an experienced iron worker who had been working at his trade in San Francisco for ten years or more. He was familiar with electric power lines and knew the dangers in working about them. On that day he and two assistants were sent by their employer to install some metal rods in a new hotel building which was being constructed on the east side of Fillmore Street near Fulton Street in San .Francisco. On arriving he found that the framework of the building six stories high had been installed. Floor joists 18 inches apart were in place. A power line extended north and south on the east side of the building. The distance between the wall of the building and the wires was about 9 feet 6 inches. The power line consisted of poles 25 or 30 feet long. At the extreme top of the poles were crossbars and attached to those crossbars were two wires owned and operated by the defendant and which the evidence discloses carried 11,000 volts. Below those wires were others which were the property of the Market Street Railway Company and which were a part of the power line for the operation of its cars. A hoisting pulley was already in place. A beam had been placed on the top of the building extending out into Fillmore Street two or three feet. At the end of the beam a pulley was at