Hicks v. Western Union Telegraph Co.
73 S.E. 139
N.C.
1911
Check Treatment
*524 'Walker, J.,

after stating tbe case: It seems to us that no case could have been more accurately tried, under tbe rules of law, tban tbis one was by tbe able and learned judge wbo presided at tbe trial in tbe court below. Tbe charge was full and complete in every respect, and surely there is nothing in it of which tbe defendant has any just or valid reason to complain. Tbe jury bave acquitted tbe Light and Power Company of any negligence upon evidence supporting tbe verdict and under instructions free from any error, and it is not necessary that we should consider that part of tbe case. There was evidence coming from defendant’s own witnesses that tbe wires of that company were regarded as live and dangerous, and work in tbe proximity of such wires was always conducted with reference to that fact, and it was its legal duty to assume that those wires were dangerous. Haynes v. Gas Co., 114 N. C., 203. There was also evidence that it was tbe general custom of tbis telegraph company and of linemen generally, while working in close proximity to tbe wires of other companies, which are assumed to be live and dangerous, to use a rope in stretching wires when they are likely to come in contact with tbe wires of other companies, and tbis is done to prevent tbe necessity of taking bold of tbe wires with tbe naked band, which would result in injury if tbe two wires should come in contact with each other. No guard wires were used so as to prevent such contact, nor were any other precautions taken to make tbe work of tbe plaintiff’s intestate reasonably safe. Under tbe evidence and tbe instructions of tbe court, tbe jury must necessarily bave found that tbe death of tbe intestate was not due to any negligence of Asherst, wbo is alleged to bave been a fellow-servant, and wbo was on tbe bridge manipulating one of tbe wires, for tbe court instructed tbe jury that, if tbe negligence of tbe fellow-servant, Asherst, caused the death of tbe intestate, they should answer tbe first issue “No” — that is, that bis death was not caused by defendant’s negligence, and tbe jury answered tbe issue “Yes,” and that instruction was without reference to any orders from a superior officer or vice-principal, under which Asherst may bave been acting at tbe time. If Asherst was not negligent — and tbe jury bave so found as a fact — what difference can it make, if tbe judge did modify tbe *525 defendant’s eighth, prayer for instructions, for it is predicated entirely on the negligence of Asherst, and it is, of course, immaterial whether his negligence, if in fact there was any, consisted in disobeying safe orders or in pulling or dragging the wire negligently and in disregard of them, so that the wire sagged and fell on the live wires of the company, causing a deadly current of electricity to be transmitted to the body of the plaintiff’s intestate, which resulted in his death? Let us repeat, and in a more definite manner, that the court, in giving the instruction contained in the defendant’s seventh prayer, told the jury that Hicks and Asherst were fellow-servants, and if they found from the evidence that intestate’s death was caused by his negligence in handling the wire — that is, any kind of negligence — it - could not be imputed to the telegraph company as its negligence, although he was employed by it, and they should answer the first issue “No.” It follows logically from their affirmative answer to that issue that the next prayer, which was modified, was immaterial, as it would be vain and idle for' the jury to consider whether the company was negligent by reason of any unsafe orders to Asherst, or otherwise, after they had found that Asherst was not negligent at all. Of course, the company could not be made answerable for a negligence that did not exist. Besides, the court expressly told the jury, as we have seen, that if it was Asherst’s negligence that caused intestate’s death, it would not be the negligence of the company, and they should answer the first issue “No”; so the defendant virtually got the benefit of the instruction it asked for in its eighth prayer, in the instruction given in response to its seventh prayer.

We think that, perhaps, this is a case which calls for the application of the rule laid down in Turner v. Power Co., 154 N. C., 131, as follows: “When a thing which causes injury is shown to be under the management of the defendant, and the accident is such that in the ordinary course of things does not happen, if those who have the management use the proper care, it affords reasonable evidence,- in the absence of explanation by the defendant, that the accident arose from a want of care. And- this statement will be found to be in accord with well-considered cases in other courts, as in Griffin v. Manice, 166 *526 N. Y., 188; Hawser v. R. R., 80 Md., 146; Sheridan v. Foley, 58 N. J. L., 230; Armour v. Golkouska, 95 Ill. App., 492.” And again: “These and numerous other authorities on the subject will disclose that it is not the injury alone that can call for the application of this doctrine or maxim, but the injury and the facts and circumstances immediately attending it and constituting together the occurrence or event which present the conditions when it may properly be allowed to prevail. Thus in Shearman and Redfield on Negligence, sec. 59, the authors say: ‘In many cases the maxim res ipsa loquitur applies; the affair speaks for itself. It is not that in any case negligence can be assumed from the mere fact of an' accident and an injury, but in these cases the surrounding circumstances which are necessarily brought into view, by showing how the accident occurred, contain without further proof sufficient evidence of the defendant’s duty and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof that the injured person is able to offer or that it is necessary to offer.’ ”

But it is not necessary that we should go so far, for his Honor put the case to the jury practically upon the “rule of the prudent man,” both as to the conduct of the defendant ’and of Hicks, and they found that the defendant had not, under the circumstances, exercised ordinary care. Cases showing the measure of duty of those who employ this dangerous agency in their business have been decided by this Court. Haynes v. Gas Co., supra; Horne v. Power Co., 144 N. C., 375; Harrington v. Wadesboro, 153 N. C., 437; Turner v. Power Co., supra. In the Haynes case, Justice Burwell, speaking for the Court, said: “The danger is great, and the care and watchfulness must be commensurate with it.”

It appears in this case that the defendant did absolutely nothing to provide for the safety of its servant, who was killed. Our attention has not been called to any precautionary method adopted by it for that purpose. There is no doubt as to what was the duty of the defendant to its servant occupying a position of great danger in performing his work, and there is very little law in the case. It presents substantially and largely a question *527 of fact, wbicb, under a faultless charge, tbe jury have found against tbe defendant. We take this extract from plaintiff’s brief, adding tbat we tbink it states a correct principle of law: “It may be taken as settled by tbe overwhelming weight of authority tbat a company maintaining electric wires carrying a high voltage of electricity, is fixed with tbe duty of using all necessary care and prudence to make tbe wires safe at places where others might have tbe right to go either for work, business, or pleasure. Mitchell v. Electric Co., 129 N. C., 166.” “Tbe defendant company was engaged in tbe business of manufacturing, producing, leasing,’ and selling light made from tbe use of electricity, wbicb is -the most deadly and dangerous power recognized as a necessary agency in developing our civilization and promoting our comfort and business affkirs. It differs from all other dangerous utilities. Its association is with tbe most inoffensive and harmless piece of mechanism, if wire can be classified as such, in common use. In adhering to the wire, it gives no warning or knowledge of its deadly presence; vision cannot detect it; it is without color, motion, or body; latently and without sound, it exists, and being odorless, tbe only means of its discovery lies in tbe senses of feeling, communicated through tbe touch, of a person, wbicb, as soon as- done, be becomes its victim. In behalf of human life and tbe safety of mankind, it behooves those who would profit by tbe use of tbis subtle and violent element of nature to exercise tbe greatest degree of care and constant vigilance in inspecting and maintaining tbe wires in perfect condition.” Mitchell v. Electric Co., 129 N. C., 169.

We do not tbink there was any error- in tbe other rulings or in tbe charge to wbicb exceptions were taken.

No error.