149 S.E. 549 | N.C. | 1929
The evidence tended to show that John R. Pitt owned certain land in Edgecombe County, and on 23 May, 1922, conveyed to the town of Pinetops a right of way across his land for the purpose of erecting a transmission line. This deed was recorded on 8 December, 1926. The town of Pinetops purchased electric power from the town of Tarboro, and in order to convey said power from Tarboro to Pinetops, erected a power line consisting of poles and wires. The line carried thirteen thousand volts of electricity, but this voltage was "stepped down" at Pinetops to twenty-three hundred volts. The poles carrying the power were from thirty-five to thirty-seven feet in height and were erected on top of the bank of a "pretty deep cut" on the right of way of the East Carolina Railway Company. On or about 17 June, 1926, Pitt, the owner of the land, entered into an agreement with the Hookerton Terminal Company by the terms of which the said company was authorized to remove sand and gravel from the area on which the poles were situated. *435 There was further evidence that Louis Morgan, father of the plaintiff, Mamie Morgan, rented a crop from Pitt for the year 1926, and was cultivating cotton in a field bordering the transmission line. The edge of Morgan's cotton field was only eleven steps from the power line. There was further evidence tending to show that prior to 6 December, 1926, the Hookerton Terminal Company, in excavating sand and gravel, had undermined one of the poles of said transmission line, which caused the pole to drop down into the excavation, leaving the wires thereon from five to seven feet above the ground on the top of the embankment. On 6 December, 1926, Mamie Morgan, a child about twelve years and ten months old, went into the woods adjoining the field of her father. Coming back from the woods to her work in the field she stopped at the pole in controversy, apparently looking over the embankment into the sand pit below.
The half sister of the deceased, the only eye witness, gave the following narrative: "We came back from the woods and passed by the pole coming back about a yard from it; we stopped and were looking at the sand digger; it was not working. I didn't see anybody on it; we didn't stay there long; I turned around and was coming back to the field and missed Mamie; when I turned to go back to the field is when I missed Mamie; I heard a roaring; I hollered and called Gus and looked around. I saw Mamie standing there; she couldn't get away; her right hand up above her head; she was not so far from the edge of that place; I don't think she was standing on her tiptoes, the best I can remember her hand that was sticking up was touching the wire. I had my back to her and turned around and saw her, and she was standing on the ground, had one hand up above her head on the wire; she didn't stay there long. I screamed and called Gus and Mandy, and Mandy pulled Mamie away, and the wire slung her off. She lay flat on her back on the ground. . . . We walked straight under the wire and looked over the embankment; I peeped over there."
Apparently Mamie Morgan was killed instantly.
The other plaintiff, Mandy Murphy, sister of Mamie Morgan, testified that she heard hollering and looked and saw her sister Mamie on the wire. She said: "I ran there to pull her away, and when I was pulling her away the electricity from her drew me to the pole. I don't remember anything else that happened because I was speechless, and when I came to I was at the house. I felt just like somebody dead, and my left foot and right hand were burned."
There was testimony that from the point where the pole rested on the top of the bank to the wires was about five feet. There was also testimony to the contrary. There was also evidence tending to show that the pole had been in the condition described by witnesses from about 16 *436 October, 1926. There was also strong testimony offered by the defendants to the effect that the pole had been inspected a few days before the death of Mamie Morgan, and that it was then standing and had not been undermined.
The cases were consolidated, and issues of negligence, contributory negligence, and primary and secondary liability were submitted in both cases. The jury answered all the issues in favor of plaintiffs, awarding $1,500 damages in the death case and $250 damages in the case of Mandy Murphy. The verdict also established primary liability against the defendant, Hookerton Terminal Company, and secondary liability against the town of Pinetops.
From judgment upon the verdict both defendants appealed. 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.,
The principles of law creating liability have been declared and reiterated in many decisions of this Court. Harrington v. Wadesboro,
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 ofFerrell v. R. R.,
Louis Morgan, father of plaintiff, testified that he rented the land up to the right of way of the railroad. If so, he and his children, in cultivating the cotton field, had 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 had 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.