Mark v. Pacific Gas & Electric Co.

WRIGHT, C. J., Concurring and Dissenting.

I concur with the majority that nonsuits were properly entered against plaintiffs in favor of the defendant landlords and the defendant City and County of San Francisco. I would further hold that the nonsuit was also properly entered in favor of Pacific Gas and Electric Company (P. G. & E.) and, accordingly, I dissent from the majority holding that the judgment in favor of that defendant is to be reversed.

The record fairly establishes, as the majority conclude, that there is sufficient evidence to support a finding of negligent conduct on the part of P. G. & E., its employees or agents, at least for purposes of avoiding a nonsuit on that limited ground. (See Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 586-587 [ 86 Cal.Rptr. 465 , 468 P.2d 825 ].) Plaintiffs must additionally establish, however, the impropriety of the trial court’s finding that the decedent was, as a matter of law, contributorily negligent.

Contributory negligence exists as a matter of law where reasonable men could have drawn no other sensible conclusion than that the conduct of the injured party fell below the standard to which he should conform for his own protection. (Hogue v. Southern Pacific Co. (1969) 1 Cal.3d 253, 259 [ 81 Cal.Rptr. 765 , 460 P.2d 965 ].) An intentional and unreasonable exposure to danger created by defendant’s negligence, of-which danger the decedent had knowledge or had reason to know, constitutes contributory negligence. (Rest.2d Torts, § 466(a).) The majority concede on sound authority that the danger of electrical shock is presumed within the knowledge of all reasonable men. 1 The decedent, who was 24 years of age, undisputedly was thus required to conduct himself as would a reasonable man with knowledge of the dangerous propensities of electrical current.

Contrary to inferences which may be drawn from the majority opinion, the mechanics of extinguishing the light in the instant case were fraught *185 with hazards not apparent in changing a household light bulb. The large two-and-one-half-foot plastic canopy enclosing the bulb was secured to the steel pole by three metal clips which first had to be loosened or disengaged before the canopy itself could be removed. Thereafter it was necessary to extinguish the light by unscrewing the hot bulb from its porcelain socket. This could be accomplished by standing on a metal fire escape and leaning against or reaching across a metal railing. This action the decedent took while barefooted. With the canopy removed not only the bulb but also the heavy bare electrical terminals were exposed to sight and touch. Through these terminals flowed current which powered such an, intense light that one could read even with the drapes drawn and the room lights extinguished. To remove the bulb the decedent, wearing ski gloves, of necessity faced a bright light and reached his hands into an area which was within a few inches of the exposed terminals. 2 The issue, then, is the simple one whether a person with knowledge of the danger of electrical shock and who has conducted himself in the manner indicated has exercised that degree of care which he is required to use for his own protection. Even though decedent may have thought there was no other method available by which he could seek refuge from the disturbing effects.of the bright light, the reasonable man would not engage in the type of conduct undertaken by decedent and encounter the risk of electrocution. (Cf. Rest.2d Torts, § 473, com. d.) Wilful disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow (cf. Prosser, Law of Torts (4th ed.) p. 185) resulted in decedent’s unfortunate death. I cannot realistically come to any other conclusion but that, as a matter of law, the decedent completely failed to conform to the standard required of him, and that his failure was a proximate cause of his death.

The judgment of nonsuit is thus compelled and I would affirm the judgment in its entirety.

McComb, J., and Sullivan, J., concurred.

part of this common knowledge is the fact that even household current can produce a fatal shock. In my opinion, the majority erroneously attempts to distinguish knowledge of “high voltage” current from the current involved in the case at bar.

included in the record are photographic exhibits clearly protraying the juxtaposition of the window, fire escape, lamp post, canopy, bulb when exposed, and the exposed terminals and circuitry within the canopy at the base of the bulb.