Keller v. Pacific Telephone & Telegraph Co.

The plaintiff has appealed from a judgment rendered against him in accordance with the verdict

The telephone company erected and maintained in the sidewalk space, ten inches from the curbing of a street in Willits, a square-sawed nine-inch telephone pole 25 feet in height. This pole was erected by the company in 1924, but it had been previously used, although the evidence does not show how old it was. The outer portion of the pole was decayed near the ground. The evidence indicates that it still contained about six inches of firm timber on the inside of the pole. It was equipped with cross-arms and carried several insulated wires. Apparently it was braced in the usual manner by means of guy-wires.

At 8 o’clock in the evening of October 8, 1932, the deceased parked his Chevrolet roadster on the opposite side of Central Street from the point where the defective pole stood and about 90 feet distant therefrom. The street, which was 54 feet in width, was surfaced with the crown about eight inches higher than the lowest point adjacent to the pole. The curbing at that point was only about four inches high. Seated by the side of Mr. Dempsey, at the time he parked his car, were his wife and Mrs. "White. Dempsey stopped for a brief business interview with a man who lived in that vicinity on Central Street. He expected to be absent from the car but a few moments. He shut off his engine, shifted the lever to neutral gearing, and got out, leaving his wife and Mrs. "White seated in the car. After he left, the ladies got out of the machine and went to the house of Mrs. "White, which was near by. Mrs. Dempsey sat in the middle of the front seat, with a knee on either side of the gear lever. When she left the machine she threw the clutch into reverse gearing, so that she could get out more easily. The battery of this car was weak. It was necessary to use the crank to start the engine. For the sake of convenience, the crank was left on the floor of the car near the lever. It was dark. When Dempsey came back the ladies had not yet returned. He

Upon proceedings duly had, an administrator of the estate of Joseph Dempsey was appointed and qualified. This suit for damages was brought by the administrator against the telephone company for negligence in maintaining the defective pole. The suit was tried with a jury which returned a verdict against the plaintiff. A judgment was rendered accordingly. From that judgment the administrator has appealed.

It is contended by the appellant that he was not accorded an impartial trial for the reason that the court gave to the jury several prejudicially erroneous instructions. The respondent asserts that the giving of erroneous instructions was immaterial because its motion for a nonsuit should have been granted for the reasons that there is no substantial evidence of its negligence in maintaining the telephone pole in question, and because the deceased was guilty of contributory negligence, as a matter of law, in cranking his machine without first examining to ascertain that the gear lever was not safely placed in neutral, and by failing to set his brakes when he parked his car, as required by section 137 of the California Vehicle Act.

We are of the opinion that the question of negligence on the part of the defendant, in maintaining the defective telephone pole under the circumstances of this case, was a problem which was properly submitted to the jury for determination. It was an old pole which was evidently

The defendant is not charged with negligence in maintaining the pole at an improper position in the sidewalk space. The particular charge is that it maintained a defective pole which it should have anticipated would be likely to endanger persons or property. It has been held that it is the duty of a telephone company to select and maintain sound poles which may be reasonably expected to withstand ordinary strain of weather conditions or other ordinary tests of strength, and to that end it is the duty of such companies to make reasonable inspection of its poles to ascertain that they are safe. (8 Thompson’s Comm, on Neg., p. 185, sec. 1244.) In the present case it appears that the surface of the pole in question was rotted at and near the point where it entered the ground, to a depth of approximately one inch and a half. It still contained about six inches of timber at the center which were not decayed. It may, however, be a legitimate question to submit to a jury, as to whether the interior timber of a pole which is so rotted at the surface may not also be deteriorated and weakened thereby to such an extent that it is more brittle and dangerous on that account. We are of the opinion that it is a proper question to submit to the jury as to whether the pole would have broken as a result of the blow received from the automobile under the circumstances of this case, if it had been reasonably sound throughout.

We are also of the opinion the evidence fails to show that Mr. Dempsey was guilty of contributory negligence as a matter of law. He did not violate section 137 of the California Vehicle Act. That section reads: “No person having control or charge of a motor vehicle shall allow such vehicle to stand on any public highway unattended without first effectively setting the brakes thereof and stopping the motor of said vehicle.”

We have carefully examined the entire charge to the jury and we are impelled to hold that it contains several reversible instructions.

To the same effect are the following authorities: Ebrite v. Crawford, 215 Cal. 724 , 729 [ 12 Pac. (2d) 937 ]; Jordan v. Great Western Motorways, 213 Cal. 606 [ 2 Pac. (2d) 786 ]; Elsey v. Domecq, 114 Cal. App. 42 , 51 [ 299 Pac. 794 ]; Queirolo v. Pacific Gas & Elec. Co., 114 Cal. App. 610 [ 300 Pac. 487 ]; Dodds v. Gifford, 127 Cal. App. 629 , 634 [ 16 Pac. (2d) 279 ]; Bartolini v. Andrioli, 123 Cal. App. 350 [ 11 Pac. (2d) 66 ].

The appellant assigns seven of the instructions which were given to the jury at the request of the defendant, as prejudicially erroneous. Several of these challenged instructions were reread to the jury, at its request for further instruction on the subject of contributory negligence. This request was made some time after the jury first retired to deliberate on its verdict. Contributory negligence was the only subject upon which the jury desired further instructions. After receiving that final charge, the jury retired for further deliberation and later returned a verdict in favor of the defendant. It therefore seems probable that the jury was prejudiced by these very erroneous instructions on the subject of contributory negligence.

Defendant’s instruction number 28 invades the province of the jury as the sole judges of the weight and

The very gist of the liability of the defendant, if any such liability does exist in this case, is the maintaining of an alleged decayed and dangerous telephone pole. The vital question for the jury to determine was whether the defendant knowingly maintained a pole in such decayed and weakened condition that a reasonably prudent person should have known it was dangerous to persons or property. But in effect the jury was told in this instruction that the maintaining of this very pole in the condition in which it existed at the time of the accident, as a matter of fact, did not constitute negligence, and therefore did not entitle the plaintiff to recover damages. It was equivalent to informing the jury that the evidence is insufficient to support the plaintiff's charge of negligence. (Sullivan v. Market Street Ry. Co., 136 Cal. 479 [ 69 Pac. 143 ].) This was an invasion of the province of the jury.

Defendant's instruction number 30, which was given to the jury, has no application to the facts of this case, since the deceased did not leave his automobile parked on the street “unattended”, but, on the contrary, he left it in charge of his wife and another lady who were seated in the machine at the time he went away. The instruction is therefore inapplicable, misleading and prejudicial. It reads, “I instruct you that the Vehicle Act of this state, in force at the time of this accident, provided that ‘no person having control or charge of a motor vehicle shall allow such vehicle to stand on any public highway unattended without first effectively setting the brakes thereon and stopping the motor of said vehicle'. If you find from the evidence that the decedent allowed this automobile to stand on Central street without either first effectively setting the brakes thereon or stopping the motor of said vehicle, and that such omission proximately contributed to his death, then your verdict must be for the defendant.”

This is one' of the instructions which was read to the jury at their request, the second time. Since the brake was not set when the deceased left his automobile parked at the side of the street, the jury must have gained the im

In defendant’s instruction number 32, the court charged the jury that if they found that the deceased cranked his engine without first ascertaining that the gear lever was in a neutral position, and that an ordinarily prudent man would not have done so without that precaution, or “that any other conduct or omission of decedent proximately contributed to his injury”, then their verdict must be in favor of the defendant. We may assume the preceding italicized language was inadvertently used. But it is unfortunate for the reason that it informs the jury that any omission of the deceased which contributed to his accident is fatal to the plaintiff’s right to recover, whether it amounts to negligence or not. Of course, it is only the omission of such acts as would amount to negligence, or the lack of ordinary care, that would defeat plaintiff’s right of recovery on the ground of contributory negligence. This instruction served to emphasize the error which was contained in instruction number 30. It is only such acts as amount to an absence of ordinary care which will preclude a plaintiff from recovering damages on the doctrine of contributory negligence. (19 Cal. Jur., p. 648, sec. 77.)

The preceding instruction omits any reference to the question of whether the pole was dangerously decayed or defective. The chief defect in this instruction, however, is that it informs the jury that if the deceased “allowed said automobile to collide with said pole”, he was guilty of contributory negligence which precludes the plaintiff’s right of recovery. It omits the element of negligence. It fails to inform the jury that the conduct of the deceased which resulted in his machine colliding with the pole must have amounted to negligence on his part, in order to defeat his right to damages on the ground of contributory negligence. The language of this instruction is peculiarly unfortunate since the undisputed evidence is that the deceased was actually present and apparently he was using his best efforts to stop the runaway ear and prevent it from hitting the pole. This instruction also invades the exclusive right of the jury to determine whether the striking of the pole by the automobile was due to the fault of the deceased.

Defendant s instruction number 39 is another defective formula instruction. After quoting the principle announced in section 1963, subdivision 4, of the Code of Civil Procedure, that it is presumed “a person takes ordinary care of his own concerns”, the instruction asserts this presumption will be effectively dispelled if the jury should find that the deceased cranked his engine while the gear lever was in reverse, if a reasonably prudent person would not have so cranked the engine. This instruction fails to refer to the plaintiff’s theory that the deceased was ignorant of the fact that his gear lever had been changed from neutral to the reverse. The jury should have been given the' opportunity to pass upon whether his ignorance of that

The defendant’s instruction number 40, with relation to the doctrine of res ipsa loquitur, is inapplicable to the facts of this case, and should not have been given to the jury. It is misleading and must have been prejudicial. It reads, ‘ There is a rule of law known as res ipsa loqiiiUir, which translated literally means ‘The thing speaks for itself. ’ This rule means that when the thing which caused the injury is shown to have been under the management and exclusive control of the person operating it, and the accident is such as in the ordinary course of things does not happen if those who have the management and control use proper care, it affords reasonable evidence, in th,e absence of explanation by the person using it, that the accident arose from want of ordinary care upon the part of the person using it; and I instruct you that if you find that the decedent, while driving or operating his automobile, caused or permitted the same to run upon the sidewalk, and this would not have happened in the ordinary course of things if the decedent used proper care, the doctrine of res ipsa loquitur is applicable to this case, and that the decedent’s act was prima facie negligent.”

The doctrine of res ipsa loquitur is applicable only in the absence of actual knowledge of just how an accident occurs. It then casts the burden of furnishing an explanation of the cause upon him who has the exclusive control of the machine and who is therefore presumed to be better qualified to furnish the necessary evidence of the cause of the accident.

The application of the doctrine of res ipsa loquitur was explained in the ease of Jianou v. Pickwick Stages System, 111 Cal. App. 754 [ 296 Pac. 108 , 109], as follows, “It is the established rule that one who relies upon the doctrine of res ipsa loquitur to establish a cause based upon negligence, must allege merely general acts of negligence. Upon the contrary, when one alleges specific acts of -negligence upon which he relies, the pleading refutes the theory of res ipsa loquitur. The very hypothesis of the doctrine is that the plaintiff has no knowledge of just what caused the accident, and that since the instrumentality by means of which the accident occurred is solely within the control of the

We may assume the same principle will apply when a defendant under similar circumstances seeks to defeat a liability against himself on the ground that the plaintiff is guilty of contributory negligence, the nature of which is unknown to the defendant.

In the present ease both the answer of the defendant,and the uncontradicted evidence show exactly what caused the automobile to back across the street and run into the pole. The doctrine of res ipsa loquitur is therefore inapplicable to the circumstances of this case. Moreover, this instruction improperly informed the jury that if it found that the deceased "caused or permitted” his automobile “to run upon the sidewalk”, and that that result “would not have happened in the ordinary course of things”, that this would constitute a prima facie showing of negligence on the part of the deceased. It is apparent that the doing of a certain thing or permitting it to be done in an unusual manner or “out of the ordinary course of things”, neither invokes the doctrine of res ipsa loquitur nor renders the person guilty of negligence even to a prima facie degree. Merely because an act is performed in an unusual way does not necessarily mean that no one but the performer knows how it is done. Moreover, in attempting to apply the doctrine of res ipsa loquitur to the facts of this case, the defendant failed to instruct the jury that if the actual cause of the accident did appear in evidence, then this doctrine would not apply, and under such circumstances the decedent would not be prima facie guilty of contributory negligence. The evil of this omission is apparent from the fact that the evidence conclusively shows there was no mystery regarding the cause of the automobile’s unexpected journey across the street into ■ the telephone pole. It was because the clutch had been shifted to reverse gear. Clearly this instruction was inapplicable to the facts of the case, and should not have been given.

Defendant’s instruction number 41 is based on the theory that the deceased voluntarily permitted his automo

If it was intended by this instruction to inform the jury that a failure to reasonably inspect the condition of the gear lever before cranking the machine would be equivalent to “permitting his automobile to run upon the sidewalk”, and therefore this omission would amount to presumptive negligence, the hypothetical statement of facts is fatally defective in omitting all reference to any purported negligent acts. This is really an erroneous formula instruction which invades the province of the jury as the sole judges of the weight and sufficiency of the evidence. If it does not contemplate these alleged negligent omissions, it is contrary to the undisputed evidence that the deceased used his best effort to prevent the machine from running on to the sidewalk against the pole.

The judgment is reversed and the cause is remanded for a new trial.

Plummer, J., and Pullen, P. J., concurred.

A petition for a rehearing of this cause was denied by the District Court of Appeal on December 31, 193'4, and an application by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 28, 1935.

Shenk, J., and Thompson, J., voted for a hearing.