127 S.E. 429 | N.C. | 1925
Claude Graham, a minor, by his next friend, his father, W. H. Graham, brings this action against the defendant for personal injuries sustained by the alleged negligence of the defendant. The defendant owns an electric plant at Lakeview, in Moore County, and owned and operated an electric transmission line extending from its plant across a portion of Hoke County to the State Sanatorium. The electric current was transmitted on uninsulated wires and carried 11,000 voltage. The line was 7 miles long, and constructed about 1 February, 1923. The wires were put on poles about 132 feet apart, three wires, and the current turned on about 15 February, 1923. The plaintiff was injured 23 April, 1923, in less than three months. In the construction of the line, the low wire was 19 feet from the ground. The two lower wires transmitting the current are about 18 inches apart, and a third wire about 18 inches almost above the center of the two lower wires. The wires were strung on brackets on the poles.
The allegations of the plaintiff are that the electric current transmitted over the line was of high, dangerous and deadly voltage, capable of producing death or great bodily harm; that on or near the Gillis land there had been a sawmill and a large quantity of sawdust had been piled up, 15 or 20 feet high; that the defendant well knew, or by the exercise of reasonable care ought to have known, that plaintiff, Claude Graham, and other children in the community were accustomed to use the sawdust pile as a place to play; that defendant, with gross carelessness and negligence, erected its transmission line within 2 or 3 feet above the top of the sawdust pile, within close proximity *383 to any children who might play on the sawdust pile; that the transmission line was uninsulated and defendant transmitted thereon a high and dangerous voltage of electric current; that defendant negligently and carelessly used and operated the wires and line on 23 April, 1923; that the said Claude Graham, the plaintiff, about 15 years old, was an illiterate and ignorant negro boy, not informed of the deadly peril of the electricity transmitted over the wires; that while playing with other boys on the sawdust pile, on said date above mentioned, without any fault on his part, he came in contract with the said wires, carrying a high and dangerous voltage of electric current, and was seriously and permanently injured. "The plaintiff's feet were buried in the damp sawdust, and the electric current, being transmitted by the defendant over the said wires, was grounded through the body of the said plaintiff; that the said plaintiff hanged on the said wires by his neck for some time, until the wires had burned their way to the bone of his neck and head, and until one of his shoes was burned off and his right leg and foot so badly burned that it was necessary for the same to be amputated just below the knee; that the carelessness and negligence of the defendant in constructing and operating the said transmission line and uninsulated and unprotected wires, as aforesaid, was the sole, proximate cause of the injury and suffering of the said Claude Graham."
The defendant admitted that it was "engaged in the business of generating, transmitting and selling electric current, and was so engaged on 23 April, 1923. It is further admitted that said defendant company transmits its electric current by means of the usual mode of transmission used by such companies for such business." It also admitted that "on 23 April, 1923, the said defendant was engaged in transmitting electric current over its transmission line extending across a portion of Hoke County, said current being transmitted from its plant towards Sanatorium, N.C." All other allegations of the complaint were denied. As a further defense the defendant alleges "that the electric line referred to in the complaint, erected to Sanatorium from defendant's power plant, was erected by the defendant over the lands embraced in Camp Bragg territory, under and by virtue of a lease by the Government of the United States to the defendant, said line being erected in the usual manner that all such lines are erected and operated by electric companies, with all precautions taken for the protection of conditions that might arise in connection therewith; that if the plaintiff, Claude Graham, was injured by reason of coming in contact with said wires, it was on account of his own negligence and carelessness, and not on account of any act of this defendant; and that if the plaintiff, Claude Graham, was injured by the electric line of this defendant, he was a trespasser *384 upon the property of the defendant and was at the time at a place he had no right to be, and his injury, if any, was caused by his own negligent and careless act in trespassing on defendant's property and on property of Fort Bragg, and in that said plaintiff carelessly, negligently and purposely brought his body in contact with the wires of the defendant, which had been properly constructed and erected and maintained, as hereinbefore alleged, which wrongful and unlawful trespass of the plaintiff, and his careless and negligent act in putting his body in contact with the wires and property of the defendant, contributed to and was the proximate cause of his injury."
In the case on appeal it was agreed that the complaint was so amended as to show Claude Graham was below normal, mentally, and defendant's counsel announced in open court, when objecting to the testimony of Dr. Brown and others as to plaintiff's mental condition, that the objections were not based on any failure of plaintiff to allege a subnormal mental condition in his complaint, since it had agreed at the prior August term that this allegation need not be put into the complaint.
The usual issues of negligence, contributory negligence, and damages were submitted to the jury, and found in favor of plaintiff. The damages awarded plaintiff were $1,500.00.
From the judgment rendered, defendant appealed and assigned error. There are sixty-eight exceptions and assignments of error in the record. The material ones and other necessary facts we will consider in the opinion. This cause was tried, upon the part of the plaintiff, upon the theory that plaintiff was hurt while playing, as a child, with other children, on top of a sawdust pile, on Sunday, 23 April, 1923. The defendant constructed its transmission line 2 or 3 feet from the top of the sawdust pile, where it knew, or by the exercise of reasonable care and prudence ought to have known, that children were in the habit and accustomed to play. Plaintiff, while playing, came in contact with the "live wire" of defendant near the pile and was seriously injured.
There were numerous families living in the neighborhood, and plaintiff and other boys were accustomed to go there and play on the sawdust pile. The sawdust pile was a few yards from a neighborhood road. The wires were close to and in easy reach of the children playing on the sawdust pile, which was 15 or 20 feet high. *385
The theory of defendant was that the plaintiff, after being warned by his companions not to do so, deliberately undertook to test out the effects of the wires, and purposely jumped from the top of the sawdust pile to the wires, catching and coming in contact with at least two or three of the wires, causing a short-circuit through his hand and neck until, when the weight of his body had sagged the wires sufficiently, his right foot touched the sawdust pile, causing the electric current to pass through his right side into the ground, burning his foot at the point of exit. That the wires were set out of reach, some 10 or 12 feet from any point on the sawdust pile, and plaintiff, to come in contact, had to jump to catch the wires. That defendant did not know that children played around the sawdust pile, and had no reason to suppose they played there. That the nearest house was about one-quarter of a mile away, and the plaintiff and other boys lived as much as three-quarters of a mile away.
The evidence was in conflict as to where the sawdust pile was located, whether on the Duncan Gillis land or Fort Bragg territory. There is no evidence in the case that plaintiff trespassed on any land of defendant, nor was there any evidence in the case that the sawdust pile was on defendant's land or right of way. From the facts in this case, we do not think this material.
Defendant's first group of exceptions and assignments of error is to the testimony of Dr. G. W. Brown, a medical expert. This testimony was to the effect that plaintiff was mentally below normal; that he had inherited insanity. The plaintiff was 15 years old when he was injured. The medical expert went so far as to say that plaintiff "hasn't the mind of a boy over 8 or 10 years old." We think this evidence material and competent, and the fact that he had inherited insanity also competent as corroborative of the main fact that plaintiff was mentally below normal.
In S. v. Cunningham,
It is well settled law that "The inference of a medical practitioner is frequently and favorably invoked with regard to questions relating to *386 mental condition." The Modern Law of Ev. (Chamberlayne), Vol. 3, part sec. 2006. 11 Rawle C. L., p. 603, sec. 29.
The mental condition may be shown by persons who are not experts, but who have had opportunities for observing and have observed the person.
In White v. Hines,
The next group of exceptions and assignments of error by defendant is to the fact that plaintiff, at the trial, testified that he was hurt playing on the sawdust pile, when in fact he said, the day he was hurt, "The last I can remember is when I was there at Uncle Jack Watson's." This was before he was hurt. This testimony was stricken out by the court below and the jury instructed not to consider it. Defendant, in its brief, says: "Later, William H. Graham, father of the plaintiff, was questioned by plaintiff's counsel, and testified that `I asked him (plaintiff), and he said he was just playing on the sawdust pile, but how it happened he didn't know.'"
Defendant contends that this evidence was very material to plaintiff and prejudicial to defendant. It sustains plaintiff's theory of the injury and contradicted the defendant's.
On this group of exceptions the full testimony necessary to be considered of the father is as follows:
"Q. Had Claude returned home on Sundays at other times and told you that he and the boys had been playing on this sawdust pile? Answer: `Yes, sir.'
"Q. What did he tell you? Answer: `He told me they had been playing down there in the sawdust pile.'
"Q. Now, Graham, have you tried to find out from Claude as to how this matter happened? Answer: `Yes, sir.'
"Q. What did he tell you? Answer: `He said he couldn't remember. I asked him, and he said he was just playing on the sawdust pile, but how it happened he didn't know.' *387
"Q. Did he say anything else about going there — anything in connection with it? Answer: `No, sir; he said he didn't remember going there. It seemed that that day he can't remember nothing. But he remembered going there at different times before, but it seemed like from the shock he couldn't remember.'"
From the entire testimony we cannot hold it prejudicial. The fact that at other times on Sundays plaintiff and the boys played on the sawdust pile was some evidence going to fix defendant with notice that the pile was a play-place. The father, although saying that plaintiff said "he was just playing on the sawdust pile," follows this with the positive statement, "No, sir; he said he didn't remember going there," etc.
The next group of exceptions and assignments of error of defendant: Dr. G. W. Brown, introduced by plaintiff, was admitted by the defendant to be a medical expert. This witness was permitted, over defendant's objection, to testify as follows:
"Q. From the examination made by you of the boy, Claude Graham, and the condition you found him in, have you an opinion satisfactory to yourself as to whether or not he caught hold of a live wire with either one or both of his hands? Answer: `I have an opinion; I don't think he grabbed the wire; I think that hand just barely touched the wire — his right hand."
Dr. Brown attended the boy, examined and treated him, and gave in detail his injuries. He gave it as his opinion that the condition came from burns; saw a print of wire across his neck — and that he was burned by a live wire.
The court asked Dr. Brown if he had any opportunity for observation of matters of this kind — burns by electricity. He answered, "Very little — not very much." He was asked by the court if he had opportunity to observe conditions before; he answered, "I have seen a few cases." The court then asked witness, "And you have an opinion satisfactory to yourself sufficient to answer the last question?" Answer: "Yes, sir."
Then the question and answer, which defendant particularly objected to, above set forth, was asked and answered. We can see no error under the facts and circumstances of this case to the questions and answers.
"A large class of cases embracing statements as to the probability or the possibility of an event, the capacity or tendency of an act or a machine, the cause or the effect of a fact (italics ours), may fairly be grouped together, because the reason why the opinion rule is urged against them is in general that the thing to which the witness testifies is not anything which he has observed, but is a quantity which lies in *388 estimate only and is the result of a balancing of concrete data. This is no sufficient reason for excluding such statements, because it must almost always be impossible for a witness to reproduce in words absolutely all the detailed data which enter into his estimate, and there can be no danger in receiving such an estimate from a competent witness." 4 Wigmore on Evidence (2 ed.), sec. 1976.
In S. v. Clark,
In S. v. Wilcox,
In S. v. Skeen,
The real controversy in the case is on the motion of defendant as of nonsuit at the close of all the evidence. It is well settled in this jurisdiction that on this motion the evidence must be considered in the light most favorable to plaintiff.
There was evidence sufficient to be submitted to the jury that the defendant knew, or by the exercise of reasonable care ought to have known, that children in the community were accustomed to use the sawdust pile as a place to play, and there were numerous families in the community. It is admitted on all the evidence that defendant had a uniform height — 19 feet from the ground — to string on the poles the wires carrying 11,000 voltage of electric current, and had fixed this as a safe height to carry so dangerous and deadly voltage. Defendant could have constructed its line easily with a small cost some distance from the sawdust pile, but, according to plaintiff's evidence, it was constructed within 2 or 3 feet above the top of the pile — in easy access to children playing on the pile. It was not disputed that these wires, so near the sawdust pile, were not insulated, but "naked and live wires," carrying 11,000 voltage. As to how the injury occurred, the jury accepted the plaintiff's theory.
The learned and accurate judge in the court below who tried this case charged the jury: "Now, gentlemen, one who maintains dangerous instrumentalities or appliances as could or would likely attract children in play, or permits dangerous conditions to exist, with a knowledge that children are in the habit of resorting there for amusement, or by the *389 exercise of reasonable care and prudence ought to know that children are so in the habit of going there to play, is liable to a child who is injured — that is, as to a child of tender years who from infirmity is incapable of exercising a proper care or degree of care for its own protection. The degree of care must be commensurate with the dangerous nature of the article, and greater or less as would be reasonably expected of young children. A boy of the age of 14 years is presumed to have sufficient capacity to be able to sense danger and to have power to avoid it, and this presumption will stand unless rebutted by proof of such lack of intelligence as is usual of a boy of similar age. The law imposes upon minors the duty of giving such attention to their surroundings and acts to avoid dangers as may reasonably be expected of persons of their age and capacity. Children, as well as adults, must use such discretion as persons of their age and discretion ordinarily have, and one who is apparently capable of sensing peril or danger cannot be permitted with impunity to indulge in conduct which he knows or ought to know to be reckless." The court below gave a full and accurate charge on the issues submitted, applied the law to the facts, and gave fairly the contentions of the parties. No exception was taken to the charge.
Is defendant liable to plaintiff on the facts and circumstances of this case? We think it is, and that the nonsuit was properly refused. The weight of authorities in this and other States sustain this view.
In Haynes v. Gas Co.,
In Harrington v. Wadesboro,
In Ferrell v. Cotton Mills,
In Benton v. Public Service Corp.,
In Love v. Va. Power Co.,
In Talkington v. Washington Water Power Co.,
In Meyer v. Menominee Marinette L. T. Co.,
In Temple v. Electric Light and Power Co., (Miss.), 11 L.R.A. (N.S.), 449, the Court said: "It is perfectly idle for the appellee to insist that it was not bound to have reasonably expected the small boys of the neighborhood to climb that sort of tree. The fact that such boy would, in all probability, climb that particular tree, being the kind of tree it was, was a fact which, according to every sound principle of law and common sense, this corporation must have anticipated. The argument that it did not almost suggests the query whether the individuals composing this corporation, its employees and agents, had forgotten that they were once small boys themselves. The immemorial habit of small boys to climb little oak trees filed with abundant branches reaching almost to the ground is a habit which corporations stretching their wires over such trees must take notice of."
The editors of the L.R.A., in citing the Temple case, supra, after reviewing a number of decisions, say: "As to the duty to guard against danger to children in placing electric wires, no rule can be enunciated that would be accepted by all courts. As in the `turntable' cases and those involving other `attractive nuisances,' the authorities are in irreconcilable conflict. It would seem, however, that reason and humanity, alike, support the rule laid down in the above case, that those dealing with such an extremely dangerous agency as electricity should, in stringing their wires in places where it is reasonably probable that children will go, be charged `with the very highest degree of skill and care' to protect the children from injury while in the vicinity of such places, even though they may be trespassers."
In Parker v. R. R.,
In McAllister v. Pryor,
The great weight of authorities sustain the contention of plaintiff in this case. The development of electric power is of vast importance to the commercial, domestic and civic life of our people, and should be encouraged. Electricity is an invisible and subtle power. In the manufacture and distribution it requires trained and skilled artisans. People, unless educated in the use of it, know little about its deadly qualities. It can only be discovered by the touch, and that brings bodily affliction and death if there is a high voltage in the wires. Those who are engaged in the business are held by the courts to the highest degree of care in its manufacture and distribution.
The protection to be given the uniformed public, especially children, is not burdensome or expensive. Naked wires can be easily clothed — insulated. In the instant case the defendant's wires, running within 2 or 3 feet of the top of the sawdust pile, were naked "live wires," carrying a high voltage — a deadly current of electricity. It was in a community of numerous families, near a road and a place frequented by the negro boys of the community, where they played, as was their custom. This was known, or by the exercise of reasonable care ought to have been known, to defendant.
We think there was sufficient evidence to go to the jury, and the motion as of nonsuit was properly refused. On the entire record, we can discover.
No error. *394