
    Argued July 1,
    affirmed July 28, 1914.
    DYGERT v. EUGENE. 
    
    (143 Pac. 643.)
    Electricity—Care Required—Proximity of Wires.
    1. The stringing by a city of an electric wire carrying 2,200 volts, only three inches above the wires of an electric company carrying approximately 120 volts, is gross negligence.
    [As to liability of city for negligence in operating an electric light plant, see note in Ann. Cas. 1912B, 817.]
    Electricity—Actions for Injuries—Pleading and Proof.
    2. In an action against a city and an electric company for injuries by a high voltage of electricity conveyed from the city’s wires by contact with the wires of the company which were designed to carry a low voltage, the allegation of the complaint that the defendant well knew the defective and dangerous manner in which the city strung its wire, and negligently permitted it to remain in dangerous proximity to the wires used by the company, was sufficient to admit proof of imputed, as well as acquired, knowledge of the danger.
    Electricity—Care Required—Notice of Defect or Danger.
    3. An electric company is chargeable, not only with actual knowledge of dangerous proximity of the electric wires of the city, but with everything which it reasonably ought to know by reasonable care and diligence.
    From Lane: Lawrence T. Harris, Judge.
    
      Department 2. Statement by Mr. Chibe Justice McBride.
    This is an action by Bertba E. Dygert against tbe City of Eugene, a municipal corporation, and the Oregon Power Company, a corporation, for personal injuries arising out of tbe following facts: Some time previous to tbe year 1912 tbe Oregon Power Company, pursuant to a franchise granted by tbe City of Eugene, erectecf poles and strung wires thereon for tbe purpose of furnishing electric light to tbe public. So far as appears from tbe evidence it was then tbe only company engaged in that business, having tbe field to itself. Tbe wires were properly and safely strung for •the purposes indicated, and but for tbe subsequent action of tbe city hereinafter mentioned there was no danger that any accident of tbe character hereinafter detailed would result from their being placed in tbe positions they occupied. In 1912 tbe City of Eugene installed an electric plant, and strung one of its wires carrying 2,200 volts of electricity so that it crossed an electric light wire of tbe Oregon Power Company at nearly a right angle and only three inches above it. Tbe wires of tbe Oregon Power Company carried approximately 120 volts, sufficient only to afford light and to operate an electric flat-iron, and not strong enough to cause injury. Owing to tbe natural sagging of tbe wire strung by tbe city it came in contact with tbe wire strung by tbe power company, causing a high and dangerous voltage to be transmitted to its wire and along tbe wire to tbe residence of plaintiff. Plaintiff was engaged in ironing with an electric flat-iron, and, happening to lean against an iron sink near tbe table, where she was working, tbe whole current from tbe surcharged wire passed through her body, inflicting very serious injuries. This action was brought against both defendants, the complaint charging negligence by the city in placing its wires in such dangerous proximity to the wires of the power company, and further alleging that the power company well knew that they were so placed and the dangers attendant thereon, and that it negligently permitted such dangerous conditions to continue.
    The defendants answered separately, and upon the trial plaintiff had a verdict and judgment against both defendants, from which they appeal.
    Affirmed.
    For appellant, City of Eugene, there was a brief over the names of Mr. G. F. Skipworth and Mr. Jay L. Lewis, with an oral argument by Mr. Skipworth.
    
    For appellant, Oregon Power Company, there was a brief over the names of Mr. Richard Shore and Messrs. Woodcock, Smith & Bryson, with an oral argument by Mr. Shore.
    
    For respondent there was a brief over the names of Mr. Fred E. Smith and Mr. Lark Bilyeu, with an oral argument by Mr. Smith.
    
   Opinion by

Mr. Chief Justice McBride.

The foregoing statement is greatly condensed, but is deemed sufficient to cover the points raised upon this appeal. The evidence for plaintiff tends to show that the wire of the city should have been strung approximately 24 inches above the wire of the power company, but that as a matter of fact it was strung only three inches above it. That this was gross negligence under the circumstances is clear, and that this negligence was the primary cause of the accident is also clear; and it is unnecessary to consider whether the city is liable only in a case where the evidence shows want of ordinary care or some higher degree of care, the evidence disclosing the fact that practically no care was taken.

On behalf of the defendant power company it is contended that there is no evidence tending to show that it or its agents had any knowledge of the dangerous manner in which the city’s wires were strung, and so far as actual knowledge by this particular defendant is concerned, it must be admitted that the proof is not strong. The allegation of the complaint that defendant “well knew” the defective and dangerous manner in which the city strung and maintained its wire, and negligently permitted it to remain in dangerous proximity to the wires used by it, whereby the plaintiff was injured, was sufficient to admit proof of imputed as well as acquired knowledge: Thompson, Negligence (2 ed.), p. 8; Southern Ry. Co. v. Blevins, 130 Fed. 688 (66 C. C. A. 40).

3. A party is charged not only with that of which he actually takes cognizance by his senses, but with everything which he reasonably ought to know by the exercise of ordinary care and diligence. "Where the means of knowledge exist, accessible to the party and capable of communicating positive information, he is presumed to have known everything which the use of these means would have communicated to him. It is evident that had the power company by its agents made that diligent investigation of the situation which the highly dangerous agencies conducted by them required, it would readily have discovered that the city was placing its wires in such proximity to its own as to be a menace to plaintiff and its other patrons. While the negligence of the city was active and gross, and that of the power company passive, yet as to the plaintiff it cannot be held to be innocent of all negligence. It may be possible, and even probable, that if this were an action between these defendants to determine the matter of contribution after payment of plaintiff’s damages, the company might recover any sum it had been compelled to pay on account of the city’s primary negligence; but we are not called upon in this action to adjust the relative liability of the defendants as between each other, and, the active negligence of one and the passive negligence of the other having both contributed to the injury of plaintiff, both, as to her, must be held liable.

Upon the whole case we are of opinion that'the judgment was such as should have been rendered, and it is therefore affirmed.

Affirmed.

Mr. Justice Eakin, Mr. Justice Bean and Mr. Justice McNary concur.  