Lewis v. Pacific Gas & Electric Co.

PEEK, J. This is an appeal from a judgment of nonsuit entered in an action brought by the plaintiff on her own behalf and as guardian ad litem of her three minor children to recover damages for the alleged wrongful death of Willard Lewis, her husband and father of her children.

The complaint alleged that certain high powered lines of the defendant were so negligently strung, maintained and operated as to cause them to come into contact with a crane upon which decedent was working, thereby causing his death. It was further alleged that defendant had knowledge of the construction project on which decedent was working and of the presence of workmen at said place.

Defendant’s answer denied the allegations as to their negligence and alleged that the decedent was contributorily negligent.

At the conclusion of plaintiffs’ case the defendant moved for a nonsuit, which motion was granted, and from the judgment entered pursuant thereto plaintiffs have appealed.

Reviewing the evidence, as we must, in the light most favorable to plaintiffs it appears that on the date of the fatal accident decedent was employed an an oiler by the Stockton Construction Company, which firm was then engaged in constructing an underground sewer line for the city of Stockton along Charter Way, a public street. The fatal accident, however, occurred outside the Stockton city limits. By virtue of a franchise defendant, at the time of the accident and for some time prior thereto, maintained a high voltage power line parallel to the southerly edge of Charter Way at a height of approximately 26 feet above the ground. The sewer line also was being laid parallel to the southerly edge of said street. Immediately preceding the accident decedent was helping to move sections of concrete pipe from a field south of said street to where the excavation was being made for the sewer line. A self propelled crane having a boom of 26 feet was used to move the pipe. Decedent’s particular duties were to attach a large hook to each section of pipe, after which the crane would move it to the excavation where decedent would release the hook, and the operation would be repeated [62]as each section of pipe was so moved under the power lines. The fatal accident occurred when the boom, in swinging back toward the field after releasing a section of pipe, struck one of the power lines, electrocuting decedent. Although there were no eyewitnesses to the actual electrocution the briefs of both parties state that at the time of the contact decedent still had the hook in his hand. Neither the decedent nor the crane operator had worked on the job prior to that morning and neither knew what voltage the line carried. The crane operator testified that they did not know they were working under a high power line; that they thought at most the line carried only 400 volts since it appeared to them to be a very small line apparently running to a small pump house. No warning signs of any kind were in evidence. The defendant stipulated that it had knowledge that the sewer line was to be installed.