Rhodes v. Amor

DRAPEAU, J. On September 6, 1950, defendant Amor was the owner and operator of a restaurant in the city of Los Angeles. Plaintiff was a paving contractor. On that day plaintiff was preparing to pave and surface a driveway and certain portions of defendant’s property to the rear of the restaurant. A wooden post obstructed the driveway. Prom this wooden post electric wires were strung to other posts on a vacant lot adjoining defendant’s lot on the south. Light bulbs hung from the wires. Previously defendant had used this vacant lot, which was paved, for customer parking.

Immediately south of the paved lot was a brick building, to the side of which an electric meter and switch box were affixed. Electric wires ran up the side of the building; thence to a metal post on the vacant lot; and from there to the wooden post on defendant’s driveway.

Defendant wanted the wooden post removed. Plaintiff testified that “Mr. Amor asked if that post could be removed because it was obstructing his driveway, and I said, ‘Yes, it could be removed.’ . . . And I noticed the wires leading from the posts and I said, ‘What about those wires?’ I said, ‘We can remove the post but are not electricians and can’t handle the matter of the wires.’ . . . He said ... ‘I know about the wires. They have been dead for years.’ . . . Then I told him that I didn’t want to fool with them because they were electric wires . . . He told me, ‘Don’t worry about them, they are dead.’ And he said, ‘You can take a look if you will, that they are turned off. ’ Now on the back of the lot there was a box, a switch box of some description. We started back to it ... I stopped when we had gone about 10 feet and said, ‘I would not know by looking at it whether it is turned off or on. I will have to take your word for it.’ Again he said, ‘Well, they are dead all right, you can depend on that.’ . . . Then we went back 10 feet or so where we had been, and I said, ‘Well, where do you want them cut?’ ” Mr. Amor indicated where he thought was a good place to cut them and again told plaintiff, ‘ ‘ I have been here for quite a long time. I know that they are not live wires. Don’t be worried about it.”

Defendant testified that when plaintiff asked him whether the wires were dead or alive, he replied, “According to my opinion the wires shall be dead. ’ ’ The witness did not recall the conversations testified to by plaintiff.

Mr. Beltrand, an employee of plaintiff, who was assisting [100]with the paving job, testified that he was present when the two men were discussing the removal of the wooden post. He stated that “they talked about getting the post out”; that plaintiff said, “What about the wires that are up there?” That defendant “told him to go ahead and cut them they didn’t have any electricity to them and that they would have been dead. That is what Joe (defendant) said. And I told Frank (plaintiff) not to do it. I told him ‘Gee, I wouldn’t do it if I was you,’ and he said ‘Why not? Joe says here that they are dead, ’ and I just told him ‘ Crap. ’