Arrington v. Town of Pinetops
149 S.E. 549
N.C.
1929
Check Treatment
Brogden, J.

The plaintiffs seek to recover damages from both defendants upon two theories:

1. That the defendant, Hookerton Terminal Company, negligently excavated around the pole, causing it to slip into the cut and thus leaving the wires, carrying an enormous voltage, only five feet above the ground and adjacent to a cultivated field.

2. That the town of Pinetops was negligent in not discovering the condition of said pole and permitting it to remain in a dangerous situation for an unreasonable length of time.

In Ellis v. Power Co., 193 N. C., 357, 137 S. E., 163, it is declared: “that electric power is an industry-producing agency, and the hydroelectric development has been one of the greatest factors in the State’s progress, and especially its industrial expansion. Every legitimate encouragement should be given to its manufacture and distribution for use by public utility corporations, manufacturing plants, homes, and elsewhere. On the other hand, the highest degree of care should be required in the manufacture and distribution of this deadly energy and in the maintenance and inspection of the instrumentalities and appliances used in transmitting this invisible and subtle power.”

The principles of law creating liability have been declared and reiterated in many decisions of this Court. Harrington v. Wadesboro, 153 N. C., 437, 69 S. E., 399; Ferrell v. Cotton Mills, 157 N. C., 528, 73 S. E., 142; Ferrell v. R. R., 172 N. C., 682, 90 S. E., 893; Graham v. Power Co., 189 N. C., 382, 127 S. E., 429; Helms v. Power Co., 192 N. C., 784, 136 S. E., 9; Ellis v. Power Co., 193 N. C., 357, 137 S. E., *437 163; Ramsey v. Power Co., 195 N. C., 788, 143 S. E., 861; Murphy v. Power Co., 196 N. C., 484, 146 S. E., 204. In Graham v. Power Co. this Court approved the rule of liability announced by the Court of West Virginia in Love v. Virginia Power Co., 86 W. Va., 393. The rule is thus stated: “A company maintaining an electric line, over which a current of high and dangerous voltage passes, in a place to which it knows or should anticipate others lawfully may resort for any reason, such as business, pleasure, or curiosity, and in such manner as exposes them to danger of contact with it by accident or inadvertence, is bound to take precaution for their safety by insulation of the wire or other adequáte means.” The principle underlying the rule is to the effect that, when any person undertakes the performance of an act which, if not done with care and skill, will be highly dangerous to other persons, known or unknown, the law imposes as a public duty the obligation to exercise such care and skill. Ferrell v. R. R., 172 N. C., 682. Again in Helms v. Power Co., 192 N. C., 784, this Court declared: “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 carry a strong and powerful current of electricity, the law imposes upon the company the -duty of exercising the utmost care and prudence consistent with the practical operation of its business, to avoid injury to those likely to come in contact with its wires.”

Applying these principles to the case at bar, it is obvious that permitting an uninsulated wire, carrying thirteen thousand volts of electricity, to remain only five feet from the ground, near a cotton field, where people are constantly at work, created a dangerous situation. Under such circumstances severe injury or death ought reasonably to have been anticipated. In effect the defendant, Hookerton Terminal Company, undermined a pole, causing it to slip down until high powered wires were within five feet of the ground. To leave a live wire charged with deadly current in such condition was evidence of negligence to be submitted to the jury.

The question as to whether the town of Pinetops, in the exercise of due care, should have discovered the condition of the wire and to have made the necessary repairs, was a question of fact for the jury. Certainly this Court cannot declare, as a matter of law, that the town of Pinetops was free from negligence under the facts and circumstances disclosed at the trial of the cause.

The Hookerton Terminal Company insists that the little girl was a trespasser upon its property and that her administrator should not be *438 allowed to recover. The identical contention was made in the case of Ferrell v. R. R., 172 N. C., 682. The Court, however, in disposing of this defense, says: “It is undoubtedly the general rule that a trespasser cannot maintain an action against the owner for negligent injuries received by reason of conditions existent upon the premises, but this is a principle growing out of and dependent upon the right of ownership and considered essential to their proper enjoyment.” . . .

Louis Morgan, father of plaintiff, testified that be rented the land up to the right of way of the railroad. If so, be and bis children, in cultivating the cotton field, bad a right to use the land, and the defendant,' Hookerton Terminal Company, was charged with notice that these children were working in the field only eleven steps away, and that they bad a right to use the woods for any lawful purpose. While there was no pathway or walkway at the place where the pole was excavated, still these children, doubtless attracted by the machinery and sand pit, could not be reasonably held as .trespassers in a legal sense because they came up to the bank out of curiosity and peeped over into the sand pit.

No error.