This is an action in negligence, to recover for the wrongful death of a man electrocuted while assisting in the placing of a temporary, or test, television antenna. The caption is misleading. As submitted to the jury, this is an action by Eleanor C. Muck, as administratrix of the estate of Otto Max Muck, for the benefit of herself as the widow of the deceased and for the benefit of their minor son. From a judgment on the verdict of the jury in favor of the administratrix the defendant appeals, urging numerous reasons why it was entitled to a judgment of dismissal notwithstanding the verdict of the jury. There is therefore but one respondent, the administratrix.
It was the practice of the store to allow prospective customers to try out television sets in their homes for a few days without obligation to purchase. This necessitated the setting up of a temporary, or test, antenna some twenty-five feet in height, which stood on the ground and was fastened to the side of the house. If a sale resulted, a permanent antenna was installed on the roof by another firm, which specialized in that work.
On the day he was killed, Mr. Muck accompanied Edward Olson, the service man employed by the store, whose duties included delivering television sets and setting up temporary antennas, to the home of Meinard Ulrich, where a console television set was to be left for demonstration purposes and a temporary antenna set up. Mr. Olson testified that the only reason Mr. Muck accompanied him was to assist in carrying the bulky television set into the house, and that if he, Olson, had been going to deliver and install a smaller, table-model television set, he would not have needed assistance. This was the second time Mr. Muck had accompanied him on such a mission.
A short distance from the Ulrich house, the delivery truck stalled. Mr. Muck stayed with the truck to get it started, and Mr. Olson went on to the Ulrich house with the portable temporary antenna, which consisted of five 5-foot sections of steel tubing that could be fitted together to make a 25-foot pole, together with the antenna proper, made up of a 4-foot beam and four or five 70-inch aluminum crossbeams. By the time Mr. Muck got the truck started and approached the house, Mr. Olson had assembled the antenna and had placed
There was a wire fence very close to the house, and Mr. Olson had laid the 25-foot pole across this fence, the end of the pole which was to be on the ground being near the house and the end to which the aluminum crossbeams were to be attached projecting across the fence into a lane. To set the aluminum crossbeams in place, Mr. Olson crossed the fence into the lane. When he raised the antenna into a vertical position on the house side of the fence, he was still on the side of the fence away from the house. We will let him tell the story in his own words from that point:
"Well, I found that it was in sort of an awkward position to let go of the antenna, so I was figuring just what to do. At that time, I saw Mr. Muck coming. He was through with the truck and I saw him coming, and I said, `Will you take hold of this pole while I go up on the ladder and tie it to the antenna?'
"He stepped over the fence while I held the pole; he stepped over the fence and said, `I hope I don't tear my trousers.' That's what he said, and he took hold of the pole. I stepped about three or four steps further down the fence, which was lower at that point, and stepped over the fence and started to go over toward the ladder. At that time, I heard him make a sound and I noticed the antenna started to fall."
The antenna had come into contact with a 2400-volt primary line maintained by the appellant directly over the Ulrich house, and Mr. Muck had been electrocuted.
However, we prefer to hold that, in any event, it has been determined by the verdict of the jury, under instructions of the court, that Mr. Muck was not engaged in duties required of him either by his contract of employment or by specific direction of his employer. The jury was justified in believing that it was not necessary for Mr. Olson to have any assistance in setting up a temporary antenna and that Mr. Muck accompanied him for the sole purpose of helping to carry the console television set into the house. The factual issues, being decided adversely to the appellant on substantial evidence, dispose of the contention that Mr. Muck was engaged in duties required by his contract of employment or by specific direction of his employer. Cugini v. Department of Labor & Industries, 31 Wn.2d 852, 199 P.2d 593 (1948), in which we cite and quote D'Amico v. Conguista, 24 Wn.2d 674, 167 P.2d 157 (1946); see, also, Purinton v. Department of Labor & Industries, 25 Wn.2d 364, 170 P.2d 656 (1946).
The present case is in many respects far stronger than Cugini v. Department of Labor & Industries, supra. There Cugini, the employer, was engaged in an extrahazardous business (logging and trucking) and the injured workman worked during the daytime as a log loader and boom man, and was acting as a watchman (or so it was contended and assumed for the purposes of the decision) at the time of his injury, which was caused by exploding dynamite which he was using for some purpose. The business of the employer and the occupation of the employee were both extrahazardous, yet we there held that, because the employee was not, at the time he was injured, in the actual performance of any duties required by his contract of employment, he was not covered by the act.
Here we have a business (a retail store handling electrical household appliances, radios and television sets) which is not classified as extrahazardous (although certain phases of it are so classified, such as the installation and servicing of radios, and motor delivery, including the duties
An act of negligence by the appellant upon which the respondent relies to sustain the verdict was the maintenance of a high-tension line over the Ulrich house with a clearance of less than six feet, in violation of a rule promulgated by the public service commission of the state of Washington in 1914, pursuant to authority vested in it by law. Laws of 1913, chapter 130, p. 397; 3 Rem. & Bal. Code, §§ 4976-1 to 4976-6, inclusive (now Rem. Rev. Stat., §§ 5435 to 5440). (Authority to promulgate such rules is vested in the director of labor and industries by the Laws of 1921, chapter 7, § 80, p. 43. RCW 43.22.050; cf. Rem. Rev. Stat., § 10838. In the preparation of RCW, the revisers evidently were of the opinion that the Laws of 1913, chapter 130, as amended, had been superseded by the Laws of 1935, chapter 169, p. 574. RCW 19.28.010 to 19.28.350, inclusive; cf. Rem. Rev. Stat. (Sup.), §§ 8307-1 to 8307-18, inclusive. Whether the rule referred to is presently applicable is not material, as the case was tried by all parties on the assumption that the rule is still in effect.)
"A statute designed for the protection of human life is not to be brushed aside as a form of words, its commands reduced to the level of cautions, and the duty to obey attenuated into an option to conform."
Certainly such a regulation is for the benefit of those working on and around the houses over which the high voltage wires are maintained.
"A condition reasonably to be apprehended or anticipated does not imply that the exact condition proven has to have been expressly contemplated, but only that the defendant should reasonably have apprehended that someone working on or around said house rightfully might come in contact with the wire and thereby suffer serious injury or death."
Appellant received all the consideration to which it was entitled on this point when its theory was submitted to the jury.
Parenthetically, we will say that the contention is patently without merit as the basis for judgment of dismissal notwithstanding the verdict, which is the only relief that appellant asks on this appeal, because the most that appellant could have asked was that its theory be submitted to the jury, and it was within the province of the jury to determine whether Mr. Olson was negligent and, if so, whether it was a superseding or merely a concurring negligence. Eckerson v. Ford's Prairie School Dist. No. 11, 3 Wn.2d 475, 101 P.2d 345 (1940); Berglund v. Spokane County, 4 Wn.2d 309, 103 P.2d 355 (1940); Swanson v. Gilpin,
Every defensive theory suggested to the trial court was submitted to the jury with meticulous fairness and care. None of them presented questions of law which could have been determined adversely to the respondent. See Tri-County Electric Cooperative v. Clair, supra, a very recent decision (1949) which reviews a number of similar cases in which the questions of negligence, proximate cause, and contributory negligence were related to the height at which highly charged electric wires were maintained above the ground.
The judgment is affirmed.
SCHWELLENBACH, C.J., HAMLEY, FINLEY, and OLSON, JJ., concur.
October 1, 1952. Petition for rehearing denied.