*1 25 Co. Lundy v. 1911. April Term, It is the of this that the judgment Court judgment the Circuit Court set aside and the for cause remanded purpose evidence and taking what sum ascertaining should be take care allowed to of the widow.
LUNDY SOUTHERN BELL TELEPHONE AND TELE v.
GRAPH CO. Exceptions
1. not argued are considered withdrawn. 2. Evidence —Master and Servant. —If refusal admit in to evidence danger
notice of signed servant that he knew work was haz- precautions ardous and would take to protect himself danger from error, it prejudicial, was not experi- as was shown he was an lineman, enced there testimony was other that he knowledge had of that fact. Companies 3. Electric Charge liability as to —Cities and Towns.— streets, permitting construction of electric lines its even erroneous, prejudicial if to appellant, was not and when construed whole not to charge subject the objection that the
were not instructed that the electric was not unless liable proximate was the cause of the injury. Companies Neoligence.—Those — 4. Electric operating electric wires very high degree streets exercise a in their care construction, inspection repair, prevent injury maintenance to others. n 5. properly Ibid.—Ibid.—Issues.—Where wires are suspended their whereby they charged become
breaking falling, with a underneath, the company current from wires would render liable injury resulting negligence, an absence that is a jury. for the question adopt appliances all usual methods to Ibid.—Ibid.—Failure passage harmful of the current prevent through contact and another duty public. breach of wire a Request duty of lineman ascertain as to condition
7. Ibid. — of wires support properly refused as a using them as before 'facts. Telephone;
Exceptions. [90 C.S. who as to of servant has 8. Master asd *2 Servant. —Reciuest refused, ways perform to an act as properly choice of two to applicable the facts this case. Damages. testimony tending here to show 9. Punitive was —There punitive damages. entitled to plaintiff was Companies Negligence—Issues.—Those of elec- 10. Electric — proportioned care in their maintenance as is tric wires must use such for jury and the of care is under all danger, to the keep to their They perfectly are not wires circumstances. insulated, to them in that condition. to the utmost care nor use Richland, Reversed. May, J., Before DeVoRE, administratrix of Charles Lundy, Minnie C. Action by Telegraph Bell Lundy, against Southern Railway, Light Street and Columbia Electric Company defendant, Telephone Company, Power Company. exceptions: appeals following Mrs. Honor erred in allowing plaintiff, 1. “That his defend- objection Minnie to over testify, C. Lundy, had her husband she counsel, since the death that ant’s of herself mill for the support in a hosiery working been accus- child; she had not been that to her prior marriage work, husband’s but that since her do that kind tomed to for of work to do that kind compelled- she had been death support. irrelevant, in that said testimony
“The error being the complaint to responsive any allegation that it was not element of any not tend to prove damage and did to the prejudicial were responsible, the defendants defendants, it tended to inflame the minds in that reason of the 'by alleged jury showing had been to subjected unusual plaintiff of the defendants hardships. and unaccustomed witness, Honor erred permitting 2. “That his Harth, objection over of defendant’s testify, Talley counsel, or as rule did practice regulation follows: What Ti5ijsphone April Terra, 1911. with you adopt reference to linemen your going upon pole, to the use of regard Did gloves? you any I ? none did not them require to use gloves working- wires. telephone In your opinion, representing that, control of did you consider it necessary proper make any regulation? “ His is not object. opinion competent, ‘Mr. Belser: We and speculative. “ I think he can his express ‘The Court: opinion. “ ‘I no reason he wear rubber why saw should gloves more handle than handle telephone.’ that it was for the solely say, “The error being *3 case, under the facts whether or not of the the failure to wear rubber was deceased and gloves negligent, appear- that the deceased was in the the witness at employ of ing accident, the time and the witness being stranger defendants, to both which he any may or regulations not his adopted, or as to whether or not such opinion or proper necessary, regulation entirely incompe- tent, deceased, and the have concluded that jury may used all obeyed and having regulations precautions witness, his was not required by employer, as negligent in the failure to use rubber this defend- charged in gloves, ant’s answer.
3. “That his Honor erred in evidence admitting deceased, ‘notice to employees,’ signed by and reading as follows: Bell and Telephone ‘Southern Com- Telegraph Notice to All linemen, The attention pany. Employees. and all inspectors, repairmen, employees of this company, same, climb work occasion to or having upon the or in or conduits of upon underground this or company, central office upon apparatus, other part is of this called to property company, hereby the hazardous such work. conditions surrounding “ such ‘Every employee hereby notified to carefully same, before inspect pole each and climbing to thoroughly Telephone [90 C. Exceptions. above and the surface every pole, test each and both below Cross-arms, of the to avoid accidents. platforms, ground, other attachments placed upon poles, and should steps, for sup- before same carefully inspected depending port. “ ‘All of this who have occasion employees company, lines, work on the other of the pole parts property and where plant this there are current company, high owned either or other companies, per- firms, sons or are warned of the extra hazardous Specially work, conditions and notified to observe surrounding such extra caution as the conditions each require, and instance to be with rubber and all every provided gloves, other available means protection. “ n of this every employee company required ‘Each themselves with such tools as for provide may be necessary them to perform labor employed by Bell company. Telegraph Southern Co., T. Vice President and Gen’l Gentry, W. Manager. “ T, the undersigned, hereby receipt acknowledge notice, above rule I have care- acknowledge same, am fully read the its acquainted provisions, recognize utility. Charlie (Signed) Lundy, Employee. *4 Dated this third day of 1904.’ August,
“The error that said was being paper competent, in that of the deceased thereto signature had been identified witness, Walker, and R. E. proven by and said paper relevant, was tended to show knowledge of the part deceased of the and dangers perils of place death, in which he the time of his working and of which and could precautions should be used to obviate and such escape dangers. his Honor erred in not “That evidence the
4. admitting deceased, by marked employees,’ signed ‘notice to Exhibit identification, as follows: ‘The reading and T for South- and Telephone Telegraph Company. Bell Notice to ern Telephone April Term, linemen, All The attention of Employees. inspectors, and all repairmen, this occa- employees company, having sion same, to climb work poles or or in or upon upon conduits of this underground or the cen- company, tral office other of the apparatus, part property this company, is called to the hazardous hereby conditions such work. surrounding “ such ‘Every employee notified to hereby carefully same, each inspect pole before and to climbing thoroughly test each and both above below every pole, and the surface of the Cross-arms, to avoid ground, accidents. platforms, and steps, other attachments be placed upon poles, should carefully inspected before same for sup- depending upon port. “ ‘All of this who have occasion to company, employees lines, work on the and other pole parts property there are of this where current plant company, high owned this or other company companies, per- either firms, warned of the extra hazardous sons or are specially work, such and notified to observe conditions surrounding caution as conditions in each and require, extra all instance with rubber every provided to be gloves, other available means of protection. “ is required every employee ‘Each themselves with such tools as provide necessary them to the labor for perform employed by Bell company. Telegraph Southern Co., T. Vice President and Gen’l Gentry, Manager. W. “ T, the undersigned, hereby acknowledge receipt notice, that I have care- above rule and acknowledge same, am with its acquainted provisions, read fully Charles utility. Lundy, Employee. recognize (Signed) --.’ Dated this-day that said paper competent,
“The error in that being of the deceased thereto been identified had signature *5 Mrs. Minnie C. and said proven by plaintiff, Lundy, and TeuephoNE
Exceptions. [90 C.S. relevant, knowledge to show in it tended paper perils and of the deceased of the dangers the part death, his and at the time in which he was place working obviate be used to should and could precautions such escape and dangers. first in plaintiff’s “That his Honor erred charging has author- a city as follows: ‘Where
request charge, power company electric and light ized a and telephone the necessary poles to erect its streets and public places use and otherwise permit and to thereupon, and string in the business their operate allow them to conduct and and power and electric light usual manner of telephone become assume or such does not thereby companies, lines, such and poles duty inspecting with the chargeable protection in for the them safe condition nor maintaining in the per- such poles the streets persons using using duties, only but its extends duty formance their liable it is such and companies, only over general supervision has been negli- caused when itself injuries by defects notice of defect. any after actual or constructive gent, and inspecting maintaining, operating properly wires, pro- care to proper their and poles taking toor all have a to use such poles tect who persons right thereon, rests come to the wires proximity strung main- or electric so telephone companies operating injured and if person such taining poles fail- on account of a of such by companies and to ure to the wires properly, erect string reasonable the same safe and condition proper liable companies proper inspection, therefor.’ not state
“The That said does error being: (a) aof a correct of law to the duties proposition regard are con- whose streets electric and lines city along bar, maintained, the case at applied structed and when in the complaint, appears by that it alleged *6 Lundy Tbupphone Co. v. April Term, 1911. that the bore to
testimony, city Columbia and deceased servant, each other the relation of and the master fact deceased, death, that at the time his at his was work for master, Columbia, defendant, the city of of this does not absolve said from the duties which-it owed to master, the deceased as That he to the failed instruct (b) therewith, connection jury, that order to render such liable, electric or telephone or their its must be the proximate cause of the sustained. injury
6. “That his Honor erred in sec- charging plaintiff’s ond to charge, follows: 'Where wires charged with a deadly current of electricity are strung along streets of a city, degree care to prevent to injury property persons the streets or who have the to right about or duty go to such proximity governed by amount of dan- such ger -use of the attending the owner highways by wires, and it is a general proposition that is an electricity- invisible force, and impalpable to life and highly dangerous make, sell, property, distribute, and those who use or handle it are to bound exercise care in to proportion the danger involved, those using public streets for electric carrying current are bound to use a very high degree of care construction, in the repair, inspection and maintenance of such lines to prevent to those injury lawfully going upon ways, who come in con- tact with such wires.’
“The error That it was a (a) being: charge upon facts, in that it was what of care say degree for. should be exercised defendant under the circum- case, stances of the That this defendant was (b) only care, bound to use and not a ordinary very high degree case, care, under the circumstances of the That said (c) erroneous and that it misleading, in failed between the owed an electric distinguish lineman in the intestate, position of at plaintiff’s work defendant’s upon
Exceptions. [90 C.S. streets pole, public, public general passing along to the same defendant highways, held work of care to prevent persons lawfully injury have no as to poles, pre- where the public right go, vent streets. injury persons using public *7 in
7. “That his Honor erred the the follow- charging jury qf ‘And fifth portion plaintiff's request charge: ing held, law, it is as a of on the part matter to be negligence that, of in a wires such company suspend position in will the event of their become falling, they breaking with a current of from wires dangerous electricity charged underneath.’
“The That error he as being: (a) charged jury fact, matters of when he that act stated the particular mentioned constituted under the therein negligence, in case said in effect was that this testimony charge defendant was of actionable That guilty negligence, (b) law, does not state a request said correct proposition law, that it as a matter of part negligence, that, a wires a in the “suspend position in such event of will 'their become they charged breaking falling, with a current of from wires under- electricity neath;” but in such of fact case it is a every question sus- by determined whether or not the jury stringing pension of wires such constitutes position negligence. the fol- the jury “That his Honor charging
8. erred to charge: sixth request plaintiff’s lowing portion and methods to pre- all usual appliances ‘Failure to adopt through the current and hurtful passage vent contact The error to the public.’ is a breach of another wire death, since, Lundy Charles at the time of his being defendant, where of this one upon erroneous, said has no to go, public right general care than to a it held this defendant higher in that circumstances. under such the law requires LuNdy Telephone: April Term, 1911. his Honor defendant’s “That erred refusing Tf the fourth to. which was as follows: charge, believe that a man of jury ordinary pru- from evidence dence, for his own under care exercising ordinary safety circumstances surrounded Charles accident, telephone time of the would have tested the to ascertain if were wires safe before himself bringing in contact with or in con- said while standing cable, tact with the and without such test prior should, care, in the clear exercise ordinary kept said cable and its time and that at the supports, Lundy, accident, so, of this failed to failure was do that such accident, cause of the proximate without which the same occurred, would not have then the cannot recover plaintiff must find for the defendants.’ The error that said law request stated correct being principle to the facts of case and applicable the issues raised *8 and was not covered his Honor in his pleadings, by gen- eral charge.
10. “That Honor in his erred this defendant’s refusing sixth to request was as an follows: ‘Where charge, him, employee, in duty of has the discharging of it, choice two in ways one safe and performing entirely the other obviously the dan- greatly dangerous, adopts is, rule, in gerous way, injured, he as a consequence guilty which will bar a negligence based on recovery the defendant’s he cannot negligence, and relieve himself of the consequences of such contributory by show- that it was ing customary perform the in the dan- duty gerous way.’ The error that a request said stated being correct of law proposition to the facts applicable case the issues raised by pleadings, his in covered Honor his general charge. Honor in “That his erred this defendant’s refusing which was as follows: ‘The charge, jury
eighth in case there that this is no evidence to sup- are instructed 3—90 TELEPHONE IyUNDY V.
Argument [90 of Counsel. C. a verdict port punitive vindictive and that damages, cannot defendants;’ damages awarded against that charging jury could award punitive ‘in exemplary act, case the damages wrongful neglect recklessness, default defendants was the result of ' wilfulness or malice.’ The error that there was no being recklessness, evidence of wilfulness or malice on the part defendant, no wilful, wanton, evidence of any reck- less or intentional misconduct or breach of duty by the defendants, and his Honor should not have submitted the issue punitive to the damages jury.
12. “That his Honor erred the fol- charging portion of plaintiff’s ninth lowing request to ‘A charge: company electric wires maintaining over which a volt- high age electricity conveyed, them rendering dan- highly others, gerous is under the duty of using necessary care and prudence where places others the right work, business, either for go, or pleasure, to prevent It is the injury. under such condi- tions to insulated, wire perfectly and it must exer- cise the utmost care to maintain them this condition at such places.’ That
“The error said being: (a) charge does not state law, in that proposition defendant was bound sound use under the law to reasonable care under circum- only case, care,’ stances of the and not the ‘utmost as charged by Honor, facts, his That'it was (b) he stated what acts thereby were necessary constitute due *9 care in the maintenance of such wires.” Palmer,
Messrs. H. W.
J.
Nelson,
B.
Brutus
Clay,
Nel-
Belser,
&
andi
Gettys
son
Melton &
for appellant, cite:
Notices
deceased
signed by
should have been admitted: 85
Request
S.
as
should
C. 383.
deceased
have been
19;
258;
charged:
S.
60
C.
26
42
C. S.
S. W.
1009;
437;
88 Fed. 226.
care
52 R. A.
Same
L.
85
April
1911.
Term,
required as
lineman
to persons
the streets:
using
303;
69 S. C.
é5
146.
S. C.
is not
Company
guilty
neg-
ligence by suspending wires so that
break or
on
they
if
fall
zvires below
will
currents:
charged with
C.
71 S.
156;
307;
69
31
576;
C.
R.
287;
S.
A.
64
L.
Fed.
61
C.
S.
487;.
507;
695;
63
C.
19
S.
35
R.
570;
So.
A.
52 At.
L.
290;
523;
279;
48 At.
72 N. Y.
810;
26
R. A.
22
L.'
L.
635;
962;
A.
43 At.
14
R.
863;
190;
114
S. W.
N. Y. S.
78;
65
R.
;
S. W.
27
A. 365
L.
892.
70 S.
Charge
E.
based
on
supposed is not on
254,
59
303;
C.
S.
facts
facts:
63 S. C. 271. Duty
servant zvhere tzvo zvays are open
himto
to do
work:
Messrs. B. L.
Abney
Barle,
Jno. J.
Mr.
contra.
:
Abney cites Duty
city permitting another to erect wires
on
streets:
cases: com- on Elec. 72 C. 350. Joyce Duty L. S. 445; zvires insidated: pany Joyce, sec. 73 W. S. 654; 217; 66 S. E. S. E. Jno. J. cites: as to condition
Mr. Barle Bvidence admissible: 60 9. Papers C. family signed by deceased’s *10 Telephone Lundy 86 Co. v.
Opinion [90 of the Court. S. C. Columbia were not agent city servant deceased of of of 560; 29 290. two com- relevant: 63 C. Ditty S. C. S. of Insulation line sec. 449. panies using poles: Joyce, same of 445; Failure insu- wires: sec. 69 307. Joyce, C. S. of 634, 629, ;843 29 late is se: 114 Fed. negligence per Cyc. 354; 636; 221; 129; 83 63 C. 27 Barb. 78 S. C. S. C. S. 287; 34; 5; 391; 392;'109 101 80 72 Ala. S. C. Ky. C.S. 445, 307; 661; 607; 69 Mo. secs. 69 Joyce, C. 173 S. S. In or to C. absence motion nonsuit direct 307. for cannot was evi- verdict this Court consider there if 200; C. C. 184. punitive damages: dence 87 S. 13, Court opinion November The by delivered action, an administratrix by Gary. This is Mr. Justice deceased, on estate of Charles Lundy, damages husband,
account of the death of her Charles Lundy, caused joint neg- been and concurrent alleged by recklessness, wilfulness, and wantonness of ligence, defendants. time the defendants complaint alleges, mentioned, business in corporations doing were
hereinafter and maintain- and owning Columbia respectively wires, on therein. suspended poles and poles plants, ing 1908, the defend- June, the 11th day That on or about had and wilfully wantonly, carelessly, ants negligently, respective insulate their and safely failed to properly same, in proper and to the same inspect wil- condition, negligently, recklessly and carelessly, safe their wires to suffered respective had wantonly, fully other, rubbing contact with each and come cross other, thereon, the insulation to wear each against awa}*- 1908, while June, the 11th day on or about whereby, duties, of his in the performance Lundy the said Charles Bell said Telephone one of the Southern in said city, on Main street Company & Telegraph *11 April Term, 1911. when he came in contact a wires, with wire or of the said Southern Bell & Telephone Telegraph Company, power- a ful, dangerous and current deadly electricity passed, was conducted from the wire or wires of the said The Columbia Electric Street Railway Eight and Power Com- pany, along through over the said wire or the said Bell Southern & Telephone Telegraph Company, with which the said contact, Charles was in Eundy and into of the body said Charles he Lundy, whereby received fatal shock.
That the duties the said Charles was then Lundy per- were the forming, with, and the arrangement working on certain lines or Columbia, wires of the connected, city or to be connected the said of the said defend- ant Southern Bell & Telephone Telegraph Company, that said duties were being performed for the Columbia.
The defendants denied allegations negligence and set up intentional defenses of wrong, contributory of risk. assumption The rendered verdict favor of the plaintiff, the defendant Bell & Telephone Southern against Telegraph dollars,' thousand and the said defend- Company, twenty which will bé upon exceptions reported. ant appealed exceptions. to consider the proceed We First and Fxceptions: Second These exceptions 1 were not argued by appellant’s attorneys, must be considered being withdrawn. and Fourth These Exceptions: exceptions
Third assign Honor, of his on the part presiding error Judge, the defendant allow refusing company, certain introduce evidence papers, entitled: All which the Employees,” “Notice to signature showed, had been received him Lundy Charles while he was in the previously, employment several years were papers telephone company. offered for Lundy
Opinion [90 of the Court. C.S. had knowl- that Charles Lundy the purpose showing, electric wires. that it was handle Even edge erroneous, not prejudi- that the conceding ruling cial, showed, that was an Lundy experi- as the testimony effect, lineman, and there was other testimony enced facts, which the papers had knowledge intended to prove. were of error cannot be Exception: Assignment “(a),”
Fifth sustained, for the reason that the in this even respect, *12 erroneous, if not to the the prejudicial was rights appel
lant. can Nor error be sus assignment “(b)” tained, 3 as the in this must be con respect, charge
sidered in
with the
connection
entire
when
charge,
seen,
it will be
that the
instructed the
Judge
jury,
presiding
liable,
that the telephone company was not
unless its negli
was the
cause of the
sustained.
gence
proximate
injury
axiomatic,
It is
that the
Exception:
Sixth
caution
exercise,
an
man is
in
ordinarily prudent
bound to
the opera
instrumentalities,
tion of
must be
than
greater
cases,
And,
in those
with
attended
danger.
4
electric wires
are liable to
exceed
streets
become
unless
it
ingly
neces
dangerous,
properly guarded,
follows, that
those
sarily
operating
appliances,
to exercise
con
very
of care
their
high degree
struction,
maintenance,
repair, inspection
order
prevent injury
Co.,
to others. Parsons v.
69
Electric
C.S.
305,
Seventh of the the whether jury, question consideration there part com telephone 5 negligence the wires. suspending pany, then properly suspended, If wires were their break became with a dan whereby they charged or falling, ing underneath, from electricity, would current of gerous liable for an result injury not render therefrom, in the absence of on its part. ing v. 89 Tbuephonb
1/UNDY April Term, 1911. is a Negligence question, mixed law and fact. It is .Court to define but it is the negligence, province determine, of the jury whether exists in a : particular case.
The
presiding
Judge
variance
rule
thus stated in the case of
Co.,
Parsons
Electric
Under the said conceivable, it is charge, hardly how verdict, could have rendered except plain- tiff, as they were not permitted consider the question negligence.
This is exception sustained. Eighth Exception: much of the So out request as set
in the exception, is an exact reproduction of Court, 6 language in the case of Parsons v. Co., 305, 284, Electric S. C. S. E.
exception overruled. Ninth Exception: refused presiding Judge properly *13 request that it ground embodied charge
facts. 49; Weaver v. 76 Ry., 657; C. 56 S. S. E. 7 Martin 568, v. Ry., 993; 84 S. C. 66 E. Turbyfill S.
v. Ry., 395, 86 687; S. C. 68 Finch S. 87 v. Ry., E. C. 190. S.
Tenth In Exception: in refusing request mentioned this exception, presiding Judge assigned the following “Now, the reasons: sixth I request to refuse 8 because that you, request sets distinctly forth the which employee,
relation is the law that governs and servant. The first which I master charge you, not have reference to employee did master and serv does; ant; I do think the the sixth sixth is applicable case.” These reasons to this show that the request was refused. properly
40 v.
Opinion [90 C. the Court. S. for As case must remanded Exception: Eleventh trial, it not to comment we deem advisable new state, testi that there was but to merely testimony, show, was entitled that the plantiff 9 to mony tending Besides, par even no though to damages. punitive alone, to show that the plain ticular fact be sufficient nevertheless, when damages, to punitive tiff was entitled v. Railroad have effect. they may considered together, 334, 237; Cox, 55 Partlow, Rich. v. 75 C. S. 14 Dantzler 388; v. Cotton 774; v. C. Rhodes S. Wertz S. E. Ry., Mills, 87 C. S. In the case Parsons Exception: Electric
Twelfth
305,
“The rule
Co.,
68 C.
the Court uses
language:
in
of care
the use of electricity,
to
other
as in the use of steam and
the same
agencies—
In
must be
to -the
care
proportionate
danger.
control,
is the
of those
danger,
duty
determining
all the
surroundings, including
contiguity
view
wires,
fall
in con-
other
and their
and come
liability
tact,
wires. As said by
with the dangerously charged
Jersey
of New
Anderson v.
Jersey
City
Court
Supreme
Co.,
means
Questions injuries where negligence arising sustained, contact have been with electric wires through streets, be like all other of are to determined questions the facts in the upon particular negligence, by jury, case, unless of one inference. only susceptible
Therefore, that was when the presiding Judge charged of a keep telegraph company, insulated, and that it must exercise the perfectly condition, only utmost care to them in that he not invaded the but the tele- province jury, care, than graph telephone company, greater degree law such cases. imposes This is therefore sustained. exception Court, that the judgment It is judgment reversed, and the case remanded to that the Circuit Court a new trial. Court Mr. I concur in the opinion Hydrick.
Mr. Justice ninth to the disposition except Gary, Justice wherein the defendants’ to see I am unable exception. But the facts. there a charge embodies fourth error in refusing or reversible prejudicial was no as is the same instruction substantially because request, in other parts to the requested given therein the charge.