44 N.C. App. 1 | N.C. Ct. App. | 1979
Did the court err in granting summary judgment in both instances in this case?
Only when there exists no genuine issue as to a material fact should a motion for summary judgment be allowed. G.S. 1A-1, Rule 56(c). Summary judgment for a defendant, in a negligence action, is proper when the uncontradicted evidence shows the absence of negligence on the part of the defendant, or where contributory negligence on the part of the plaintiff as a matter of law is established by uncontradicted evidence, or where it is established that the purported negligence of the defendant was not the proximate cause of the plaintiff’s injury. Hale v. Power Co., 40 N.C. App. 202, 252 S.E. 2d 265 (1979); Bogle v. Power Co., 27 N.C. App. 318, 219 S.E. 2d 308 (1975), cert. denied 289 N.C. 296, 222 S.E. 2d 695 (1976).
Summary judgment provides a drastic remedy and should be used cautiously so that no one will be deprived of a trial or the chance to present evidence on a genuine disputed issue of fact. The moving party has the burden of establishing clearly the lack of a triable issue; and his papers are carefully scrutinized while those of the opposing party are indulgently regarded.
The court properly granted the motion for summary judgment in favor of the defendants, R. L. Turnage, Jr., and wife, Corabob Smith Turnage.
Our courts have held that a supplier of electricity owes the highest degree of care to the public. Hale v. Power Co., supra, citing Small v. Southern Public Utilities Co., 200 N.C. 719, 158 S.E. 385 (1931). “The danger is great, and care and watchfulness must be commensurate to it.” Haynes v. The Raleigh Gas Co., 114 N.C. 203, 211, 19 S.E. 344, 346 (1894). The standard is always the rule of the prudent man, so what conduct constitutes reasonable care varies in the presence of different conditions. Small v. Southern Public Utilities Co., supra.
It is not negligence per se to use uninsulated wires. The rule as stated in Mintz v. Murphy, 235 N.C. 304, 69 S.E. 2d 849 (1952), provides that the duty of providing insulation should be limited to those points or places where there is reason to apprehend that persons may come in contact with the wires.
The Town of Ayden had adopted the National Electrical Code as an ordinance. The Code requires that electrical conductors be insulated and that there be a minimum clearance for conductors carrying more than 600 volts. The power company recognized this and installed insulated wires initially. However, the wires had become bare in spots, and the evidence indicates that they may have been below the minimum clearance.
Certainly, roofs have to be inspected, maintained and repaired, requiring the presence of people. The variance in the height of the wires above the roof along with the degree of “bareness” of the wires could have a bearing on the degree of care which must be exerted by an employee on the roof.
Was the plaintiff contributorily negligent? What degree of care did the plaintiff take in avoiding the wires? Did his precautions to avoid the wires meet the rule of the prudent man? The complaint alleges that the distance of the wires from the roof was deceptive because of their location.
It is well settled that when a person is aware of an electric wire and knows that it might be or is highly dangerous, he has a legal duty to avoid coming in contact with it. Floyd v. Nash, 268 N.C. 547, 151 S.E. 2d 1 (1966); Alford v. Washington, 244 N.C. 132, 92 S.E. 2d 788 (1956). This does not mean, however, that a person
The plaintiff testified in deposition that he remembered raising a 10-foot downspout and that was all he remembered. The other witnesses did not see the accident — only the downspout in contact with the wires and the plaintiff.
We conclude that defendant Town failed to carry its burden of showing the absence of negligence, or that defendant was con-tributorily negligent as a matter of law, as it was required to do in order to prevail on its motion for summary judgment. At trial, of course, the burden will shift and plaintiff will have the burden of showing that his injury was proximately caused by the negligence of defendant. Summary judgment in favor of defendant Town was not appropriate, and it must be reversed.
Summary Judgment in favor of defendant Town is reversed.
Summary Judgment in favor of third party defendants Turn-age is affirmed.