Alford v. Washington, 78 S.E.2d 915

Alford v. Washington

78 S.E.2d 915

N.C.

1953

Check Treatment

PlaiNtief’s Appeal.

WihboRNe, J.

Did the court err in signing judgment sustaining the demurrer of the defendant city of Kinston ? This is the question on plaintiff’s appeal.

Admitting the truth of the allegations of fact set forth in the complaint, as well as relevant inferences of fact necessarily deducible therefrom, but not of conсlusions of law, as is done in testing the sufficiency of a complaint to state a cause of action, when challenged by demurrer, Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761; Muse v. Morrison, 234 N.C. 195, 66 S.E. 2d 783, and numerous other cases, we are of opinion that the complaint fails to state a cause of action against the dеfendant city of Kinston, a municipal corporation, owning and operating an electric lighting system within its corporate limits, if it be conceded that it was acting in a proprietary capacity.

Also, if it be conceded that the city of Kinston were negligent in the respects ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍alleged, it appears upon the face of the complaint that the injury to and death of plaintiff’s intestate was “indeрendently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person.” Smith v. Sink, 211 N.C. 725, 192 S.E. 108. See also Harton v. Telephone Co., 146 N.C. 429, 59 S.E. 1022; Mintz v. Murphy, 235 N.C. 304, 69 S.E. 2d 849; Smith v. Grubb, ante, 665, and numerous other cases therein cited.

*699 There would have been no injury to intestate of plaintiff but for the intervening wrongful act, neglect or default of those in control of and operating the. automobiles involved in the collision at the intersection of East and Blount Streets at the time and under the circumstаnces alleged, over which the defendant city of Kinston had no control, and of which the city had no knowledge.

True, a municipal corporation engaged in the business of supplying electricity for private advantage and emolument is, as to this, regarded as a private corporation, and, in such capacity, is liable to persons injured by the actionable negligence of its servants, agents and employees. Fisher v. New Bern, 140 N.C. 506, 53 S.E. 342; Harrington v. Wadesboro, 153 N.C. 437, 69 S.E. 399; Rice v. Lumberton, 235 N.C. 227, 69 S.E. 2d 543. Mintz v. Murphy, supra.

And this Court declared in Helms v. Power Co., 192 N.C. 784, 136 S.E. 9, that: “Electric companies are required to use reasonable care in the construction and maintenance of their lines and. apparatus. The degree of care which will satisfy this requirement varies*. of course, with the circumstances, but it must always be commensurate with the dangers involved, and where the wires ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍maintained by a company are designed to сarry a strong and powerful current of electricity, the law imposes upon the company the duty of exercising the utmost carе and prudence consistent with the practical operation of its business to avoid injury to those likely to come in contact with the wires.”

And in Small v. Utilities Co., 200 N.C. 719, 158 S.E. 385, it is said that, “Due to the1 deadly and latently dangerous character' of electricity, the degree of care required оf persons, corporate or individual, furnishing electric light and power to others for private gain, has been variously stated.” Then after reciting such expressions, the Court said: “In approving these formulae, as to the degree of care required in such casеs, it is not to be supposed that there is a varying standard of duty by which the responsibility for negligence is to be determined . . . The standard is always the rule of the prudent man, or the care which a prudent man ought to use under like circumstances. What reasonable care is, оf course, varies in different cases and in the presence of different conditions.” .

Moreover, we find it stated in 18 Am. Jur. 491-2, subject Electricity, Sec. 97, “That the duty of providing insulаtion should be limited to those points or places where there is reason to apprehend that persons may come in сontact with the wires, is only reasonable. Therefore, the law does not compel companies to insulate . . . their wires everywhere, but only at places where people may legitimately go for work, business, or pleasure, that is, where they may be reasonably expected to go. The same rule applies with equal, if not greater, force in regard to placing warning *700 signs.” This principle is recognized by this Court in Ellis v. Power Co., 193 N.C. 357, 137 S.E. 163. See also 29 C.J.S. 582 — Electricity, Sec. 42.

And while it is alleged that the city of Kinston should have foreseen that motor vehicles would collide at the intersection in question, and come into contact with the light poles of the city’s lighting system, — this is a conclusion that does not follow the law. “One is not under a duty of anticipating negligence on the part of others, but in the absence of anything which gives or should give notice to the contrary, a person is entitled to assume, and to act upon the assumption that others will exercise care for their own safety.” 45 C.J. 705. See Shirley v. Ayers, 201 N.C. 51, 158 S.E. 840; Murray v. R. R., 218 N.C. 392, 11 S.E. 2d 326; Hobbs v. Coach Co., 225 N.C. 323, 34 S.E. 2d 211.

Hence, on plaintiff’s аppeal the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍judgment below is affirmed.

ON Defendant WashiNgton’s Appeal.

Did the court err in signing the judgment overruling the demurrer of the defendant Melvert Washington? This is the question on his appeal.

This appellant contends that the allegations of the complaint properly interpreted are that the city of Kinston was negligent in the construction and maintenance of the city electric lighting system, and, hence, if he were negligent as alleged, the negligence of the city insulated his negligence. However, the principle of insulating negligence does not support this сontention. It relates to acts and conduct subsequently occurring. See Harton v. Tel. Co., supra; Smith v. Sink, supra; Butner v. Spease, 217 N.C. 82, 6 S.E. 2d 808; Mintz v. Murphy, supra; Smith v. Grubb, supra.

This apрellant also contends that the allegations of the complaint, accepted as true, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍show that intestate of plaintiff was contributorily negligent as a matter of law.

True the law imposes upon a person sui juris the obligation to use ordinary care for his own protection, and the degree of сare should be commensurate with the danger to be avoided. And since the danger from uninsulated or otherwise defective wires is proportionate to the amount of electricity so transmitted, contact with such wires should be avoided where their existence is known. Thus where a person seeing such a wire knows that it is, or may be highly dangerous, it is his duty to avoid coming in contact therewith. See 18 Am. Jur. 471, Electricity 76. Also see Rice v. Lumberton, supra, and Mintz v. Murphy, supra.

Nevertheless, the principle, sometimes designated the rescue doctrine, is applicable to the factual situation alleged in the сomplaint. See Norris v. R. R., 152 N.C. 505, 67 S.E. 1017. 38 Am. Jur. 912, Negligence Sec. 228. 65 C.J.S. 736—Negligence Sec. 120. See also Annotations 5 A.L.R. 206, and 19 A.L.R. 4.

*701 In the American Jurisprudence citation just mаde the author states: “The rule is well settled that one who sees a person in imminent and serious peril caused by the negligence of another cannot be charged with contributory ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍negligence, as a matter of law, in risking his own life or serious injury in attempting to effect a rescue, provided the attempt is not recklessly or rashly made.” To like effect is the text from C.J.S. Moreover, in the Norris case, supra, our own Court, in opinion by Hohe, J., clearly stated and applied the principle. Hence in the light of this rule, a case for the jury is alleged in this respect.

Thus the allegations of negligence against this appealing defendant are sufficient to withstand the test of a demurrer. And, the judgment overruling his demurrer is

Affirmed.