146 N.C. 429 | N.C. | 1907
Lead Opinion
after stating the case: Before discussing the principal question involved in this appeal, it is important to note a difference, in an important respect, between the testimony certified to us in this and the former appeal (141 N. C., 455). In that appeal Alexander Mayes, a witness for plaintiff, after testifying in regard to the condition in which the pole was left by the overseer of the road, eight or ten days before the accident, says: “I told the lineman about the dangerous condition of the pole two or three days after we had worked the road. I told him it was the pole near Morrow’s stable. In a few days I noticed a stob had been driven by the pole, but that did not appear to make it any safer.” (Becord, p. 13). In this record the same witness says: “I-made report to the lineman of defendant company. I told him the pole was dangerous, and, if it rained and the ground got wet, that it would fall. I told him which one it .was.”
The first testimony, if true, showed negligence, either in failing to repair the dangerous condition in which the road overseer left the pole, or in doing so negligently. If the lineman was told of its dangerous condition “two or three days” after the work on the road, it was at least six or seven days before the injury was sustained by plaintiff’s intestate. To fail to repair the condition and make it secure, after six or seven days’ notice, was manifest negligence. Ilis Honor, Judge Allen, so regarded it. From the testimony in this appeal it does not appear how long _ prior to the accident notice was given the lineman. It is clearly the duty of a telephone company to exercise reasonable care — and reasonable
It is conceded that the defendant had discharged its duty in regard to construction of its line. Plaintiff’s witnesses say that, before the road overseer plowed near to it, the pole was secure — “all right.” We cannot say that a failure to inspect for eight or ten days, in the absence of any notice of trouble, was negligence. In the absence, therefore, of evidence of the time the lineman was notified of the dangerous condition of the pole, we think there was no evidence of negligence. The mere fact that the pole fell on Sunday, following a heavy rain the night previous, would not constitute evidence of a failure to repair within a reasonable time after notice, there being no evidence when notice was given.
In vieAV of the fact that this case has been twice tried and a new trial upon this' point would prolong an expensive litigation, and in view of the further fact that the cause was' tried below and argued in this Court upon its merits, we deem it our duty to express the opinion to which we have arrived. When the case was here upon a former appeal, a majority of the Court thought that plaintiff should have gone to the jury, under Judge Allen’s instructions. The case, as now presented, enables us to pass upon the right of plaintiff to recover upon his own and such portions of defendant’s evidence as are not contradicted and which the jury may find to be true.
Before stating the case thus presented, we will eliminate the question whether plaintiff’s buggy wheel struck the prop placed by Carpenter to support the pole and thereby caused it to fall. More than one conclusion may be drawn from the testimony upon this point. ILence we must, in discussing the request for instructions, assume that the wheel did not strike the prop. We do not think that there is any evidence of negligence on the part of plaintiff. 1 We also assume, for this purpose, that defendant’s lineman was guilty of negligence in' failing to repair the condition of the pole, and that it fell by reason of such negligence, thus eliminating the heavy rainfall on Saturday night.
Thus considered, the case comes to this: The pole, having fallen by reason of defendant’s negligence, was lying on the ground, across the road, on Sunday. Carpenter and several others came along and put the pole back in the hole from which it had fallen by reason of the support being removed by the overseer of the road, and the rain. He and those with him, for the purpose of making it secure, went to a wood pile near by and got a pine stick or pole, of the size and length described by them, and propped the pole in the manner described. They propped it up to get it out of the way. They could have held it up and driven under it, as they did another pole not far away. Carpenter* had no connection with and did not act in behalf of defendant. In less than an hour after Carpenter put the pole up, the plaintiff and his daughter, riding in a buggy and driving a mule, came along the road, and, just as they passed, without any suggestion of the immediate cause, other than inherent weakness in the support
Tbe question is thus presented, whether tbe act of Carpenter or tbe original negligence of defendant, in legal contemplation, was tbe proximate cause of tbe injury sustained by plaintiff’s intestate. We think it manifest that Carpenter negligently — that is, insecurely — placed tbe pole in tbe bole from wbicb it bad recently fallen. The dangerous condition in wbicb it was left by tbe overseer was the result of plowing near to it, removing or loosening tbe earth by wbicb it was supported. This, followed by tbe heavy rain, caused tbe pole to fall. This was manifest to Carpenter. All of the evidence is to this effect. Carpenter and those aiding'him recognized it by going to a wood pile and getting tbe pine stick with wbicb to prop it. That it fell within a short time' — less than an hour — shows that it was left by Carpenter in an insecure and dangerous condition. His motive — purpose—was doubtless to restore tbe pole and serve tbe defendant and its patrons, but tbe act was unauthorized. He could not impose upon defendant any new or different duty or liability from that wbicb it assumed by its original negligence. If tbe pole had struck plaintiff’s intestate when it fell tbe first time, or if, after being down across tbe road, she bad, without contributory negligence, driven against it and been injured, tbe defendant would have been liable. It was liable for all such damages as resulted or flowed in ordinary natural sequence from tbe negligent omission to repair tbe dangerous condition of tbe pole after a reasonable opportunity to do sotbe reason being, as said by Pollock, probably tbe most accurate writer on tbe subject, “that a person is expected to anticipate and guard against all reasonable consequences of bis negligence, but that be is not expected-to anticipate and guard against
The rule, as announced by Justice Strong, in Railroad v. Kellog, 94 U. S., 469 (p. 415), is usually regarded as sound in principle and workable in practice. He says: “The question always is, Was there an unbroken connection between the wrongful act and the injury — a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence, or an act amounting to a wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable conseqrrence of the negligence, or wrongful act, and that it ought to have been foreseen in the light of attending circumstances.”
In many of the cases found in the reports, in which it is claimed that intervening agencies have broken the causal connection between the wrong and the injury, it will be noted that the intervening agencies are either natural or conventional conditions, as when a house is negligently burned, whereby the
In Sharp v. Powell, 7 L. R. (1812), 253, Bovill, C. J., says: “No doubt, one who commits a wrongful act is responsible for the ordinary consequences which are liable to result therefrom; but, generally speaking, he is not liable for damage which is not the natural or ordinary consequence of such an act, unless it be shown .that hé knows, or has reasonable means of knowing, that consequences not usually resulting from the act are, by reason of some existing cause, likely to
After more than usual reflection and investigation, with the aid of exhaustive argument by able counsel, we are of the opinion that the defendant was entitled tó have the court instruct the jury that, if they believed the evidence, they should answer the first issue “No.”
We have not discussed the seyeral instructions given by his Honor, because our opinion renders it unnecessary to do so. It is but just, however, to say that his Honor followed the rule laid down in the opinion of the Court. There was some difference in the testimony, to which sufficient weight was not given.
Eor the error pointed out, there must be a .
New Trial.
Concurrence Opinion
concurring: My opinion as to the general principles applicable to a case of this character was stated at some length on a former appeal, and will be found reported in 141 N. C., 455. I think, too, the Judge below conducted the present trial according to the general views expressed in that opinion. The case, even then, was a source of much perplexity, and the fuller statement of the conduct of Carpenter, as it appears in the present record, has led me to the conclu
I therefore concur in tbe opinion of tbe Court.