DOOLING
NEVIS
v.
PACIFIC GAS & ELECTRIC CO. * Feb. 1, 1954.
Rehearing Denied March 3, 1954.
Hearing Granted March 31, 1954.
Robert H. Gerdes, John J. Briare, J. J. Quill, Dana, Bledsoe & Smith, San Francisco, for appellant.
M. F. Hallmark, Wm. J. Thorburn, Oakland, for respondent.
DOOLING, Justice.
Defendant appeals from a judgment for $40,000 based upon a jury's verdict. Plaintiff and respondent was so seriously injured, when a hay derrick that he was operating came in contact with a high-voltage electric wire installed over the farming land of one Amen by appellant, that it was necessary to amputate one of his legs. The hay derrick is admitted to be of a kind in common use in the area for many years and this particular derrick had been operated by its owner, Fernandez, for 15 years. The derrick was mounted upon a carriage fitted with wheels and was drawn about and operated by a jeep. The hay which was being loaded onto a truck on the day in question was baled and had been stacked beneath the high-voltage wires. The derrick was equipped with a born which could be raised and lowered and when raised was held in position by a chain. When in use the boom was raised and fastened in this manner.
Respondent had never been on Amen's ranch before and testified that he did not notice the wires with which the boom came in contact until after his injury. After loading the front end of the truck without incident respondent moved the boom to another position to load the rear and in doing so made contact with the wires. He testified that after his injury he looked up and saw that the wire was in contact with the boom about nine inches below its top.
Appellant argues (1) that the evidence was insufficient as a matter of law to establish appellant's negligence; (2) that under the evidence the respondent was guilty of contributory negligence as a matter of law; (3) any claimed negligence on the part of appellant was not shown to be the proximate cause of respondent's injuries; and (4) alleged errors in the giving of certain instructions.
The court instructed the jury: 'At the time and place of the accident in question, the defendant Pacific Gas & Electric Company was required to maintain its power lines at least 22 feet above the ground.'
This instruction was based upon a portion of General Order 95 of the Public Utilities Commission, which reads:
'Rule 54.4-A (2) In Rural Districts, Conductors of 750-20,000 Volts: (a) Crossing Roads or Driveways: In rural districts the minimum clearance of 25 feet specified in Table 1, Case 3, Column E may be reduced to 22 feet above ground for conductors crossing or overhanging traversable portions of public or private roads or driveways * * *.
'(b) Above Agricultural Areas and Along Roads: In rural districts the minimum clearance of 25 feet specified in Table 1, Case 4, Column E may be reduced to 18 feet above ground for lines across areas capable of being traversed by agricultural equipment and along roads where no part of the line overhangs any traversable portions of a public or private roadway * * *.'
Appellant argues that it was a question of fact whether the wires crossed or overhung a private road or driveway. Amen, the owner of the land, testified that his ranch road made a loop about the place where the injury occurred and ran under the wires on both sides of it. Not only was this testimony not contradicted or questioned in any way but at appellant's own request the following instruction was given by the court:
'At the time and place of the accident in question, the defendant Pacific Gas & Electric Company was permitted to maintain its power wires at a distance of 22 feet above the ground.'
It is true, as appellant points out, that an instruction that appellant was permitted to maintain its wires 22 feet above the ground is not equivalent to an instruction that it was required to do so; but it is significant that no proposed instruction is included in the record referring in any way to the height limit of 18 feet over agricultural lands where no part of the line overhangs any portion of a public or private roadway. By limiting its instruction to the 22-foot provision of the rule appellant in effect conceded that that was the portion of the rule applicable in this case and, under the settled rule, having assumed that position in the trial court appellant may not now change its position on appeal. Not only does the uncontradicted evidence support the questioned instruction, but appellant's conduct in the face of that evidence does so as well.
Appellant argues that there is no showing that the ranch road ran under the wires when they were installed. Amen testified that these wires were changed six or seven years before and the jury was entitled to infer, as appellant impliedly conceded at the time of trial, that the road about Amen's hay lot was in existence at the time of this change in the wires.
Appellant also claims that there is no substantial evidence to support a finding that the wires were in fact less than 22 feet above the ground. Respondent testified that after the accident he was present when Fernandez measured the height of the top of the boom above the ground when the boom was raised to its maximum height and that that measurement was 23 feet 2 inches. He further testified that the boom dropped from 1 foot to 1 1/2 feet below its maximum height after he adjusted it on the day of the accident and that the point of contact with the wire was 9 inches below the top of the boom. This evidence was clearly sufficient to support a finding by the jury that the wire which the boom contacted was less that 22 feet above the ground. There were inconsistencies in respondent's testimony as to the height of the boom but the weight and effect of his testimony was for the jury. If the jury in fact found that the wire was less than 22 feet above the ground appellant's negligence appears as a matter of law.
Appellant's claim that respondent was guilty of negligence as a matter of law is based partly on the claim that respondent violated section 385, Penal Code and section 2603, Electrical Safety Orders of the Industrial Accident Commission, both of which prohibited operating the derrick in proximity to these high-voltage wires. Respondent testified that while he had seen some wires about the buildings on first entering the premises he did not see the wires above the hay lot or know that they were there until after he was electrocuted. If he was in the exercise of ordinary care and operated the derrick in ignorance of the presence of the wires he cannot be charged with negligence as a matter of law in that regard. Non-negligent ignorance of the facts which bring a regulation into operation is sufficient to support a finding that the violation of the regulation is excusable. Ornales v. Wigger, 35 Cal.2d 474, 480, 218 P.2d 531; Graf v. Garcia, 117 Cal.App.2d 792, 797-798, 256 P.2d 995.
It is pointed out that the wires were in respondent's direct line of vision as he looked up toward the man on the truck during the loading operations and relying on the doctrine that 'to look is to see' appellant asks us either to disbelieve respondent's testimony that he did not see them or to hold him guilty of negligence as a matter of law in not seeing them. Under the facts of this case we may not do so. With his eyes and mind focused on his work we cannot say that he testified falsely when he said that he did not see the wires, nor that in the exercise of ordinary care he should have looked for wires in that place, i. e., in the middle of a hay lot directly above the point where the farmer had stacked his hay. It was for the jury to determine as a question of fact whether respondent was guilty of contributory negligence. It is only where reasonable minds can draw only one conclusion from the evidence, and that conclusion pointing unerringly to plaintiff's negligence, that courts can say that the plaintiff was guilty of contributory negligence as a matter of law. Dwelly v. McReynolds, 6 Cal.2d 128, 133, 56 P.2d 1232. The situation of a man working on unfamiliar farming land is not similar to that of one about to cross a highway or a railroad track where the absolute duty is imposed to look for approaching vehicles or trains before crossing. We are satisfied that it was properly left to the jury as a question of fact in this case to determine whether or not respondent was guilty of contributory negligence. Polk v. City of Los Angeles, 26 Cal.2d 519, 159 P.2d 931; McCormick v. Great Western Power Co., 134 Cal.App. 705, 26 P.2d 322; Howell v. San Joaquin Light & Power Corp., 87 Cal.App. 44, 261 P. 1107; Neel v. Mannings, Inc., 19 Cal.2d 647, 122 P.2d 576.
Nor can we say as a matter of law that the appellant's negligence was not the proximate cause of the respondent's injuries. The 22-foot height regulation over traversable portions of private roads or driveways is designed solely for the protection of persons using equipment of such height that it might otherwise come in contact with the wires. When the very sort of casualty which the regulation is designed to prevent occurs because of its violation it cannot logically be said that it was not proximately caused by the violation. Meincke v. Oakland Garage, Inc., 11 Cal.2d 255, 256, 79 P.2d 91.
Complaint is also made of the following instruction:
'If you find from the evidence that it was a common practice in the community where defendant was maintaining the power lines involved in this action, of persons loading hay to use derricks such as the one used by the plaintiff in this case, then you are instructed that it was the duty of the defendant to have ascertained such fact and to use reasonable care in maintaining its wires across the agricultural lands and private roads in said community at such height that there was no likelihood that such derricks would come in contact with its power lines, and if you find that defendant failed in this case to maintain the power lines in question according to this requirement, defendant is guilty of negligence.'
Hereon it is argued that even though hay derricks of the type in question were in common use in this area, they were all equipped with booms which could be dropped to a horizontal position, as was the derrick involved here. The evidence shows that in traversing public roads, 'carrying them from one ranch to the other', it was customary to drop the boom, and appellant argues from this that it could not reasonably anticipate that the derrick would be moved in an upright position. We cannot say that the jury could not find that appellant should have foreseen that such derricks while in actual use on private farming land would be moved from one position to another, without lowering the boom. If it should in the exercise of reasonable care have foreseen this its duty to use ordinary care to guard against such danger is clear. Fairbairn v. American River Electric Co., 179 Cal. 157, 175 P. 637.
Judgment affirmed.
NOURSE, P. J., concurs. --------------- * Subsequent opinion 275 P.2d 761.
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