Lynn Ex Rel. Lynn v. Pinehurst Silk Mills, Inc.
179 S.E. 11
N.C.
1935
Check Treatment
ClakksoN, J.

At the close of plaintiff’s evidence and at the close of all the evidence the defendant made motions in the court below for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions, and in this we can see no error.

On motion to dismiss or judgment of nonsuit, the evidence is to be taken in the light most favorable to the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. An exception to a motion to dismiss in a civil action, taken after the close of the plaintiff’s evidence and renewed by defendant after the introduction of his own evidence, does not confine the appeal to the plaintiff’s evidence alone, and a judgment will be sustained under the second exception if there is any evidence on the whole record of the defendant’s liability.

We think there is ample evidence to be submitted to the jury. In Small v. Southern Public Utilities Co., 200 N. C., 719 (721), we find: “Following are some of the various expressions found in the decisions: 'Highest degree of care’ (Ellis v. Power Co., 193 N. C., 357, 137 S. E., 163) ; ‘highest degree of care in maintenance and inspection’ (Benton v. Public Service Corp., 165 N. C., 354, 81 S. E., 448); 'high skill, the most consummate care and caution, and the utmost diligence and foresight . . . consistent with practical operation’ (Turner v. Power Co., 167 N. C., 630, 83 S. E., 744); 'greatest degree of care and constant vigilance’ (Mitchell v. Electric Co., 129 N. C., 166, 39 S. E., 801); 'very high degree of care’ (Harrington v. Wadesboro, supra [153 N. C., 437]); all reasonable precaution’ (Turner v. Power Co., 154 N. C., 437); 'utmost care and prudence consistent with practical operation’ (Helms v. Power Co., 192 N. C., 784, 136 S. E., 9); 'rule of the prudent man’ (Hicks v. Tel. Co., 157 N. C., 519, 73 S. E., 139); 'highest skill *12 . . . which is attainable, consistent with practical operation’ (Electric Co. v. Lawrence, 31 Col., 308) ; ‘necessary care and prudence to prevent injury’ (Love v. Power Co., 86 W. Va., 397).”

In Turner v. Power Co., 154 N. C., 131 (137), it is said: “It was earnestly urged for error that the judge below refused to nonsuit the plaintiff, and this chiefly on the ground that there was no direct evidence that electricity had been negligently transmitted into the building by defendants, and in excess of the voltage stipulated for in the contract. The court was also asked to charge the jury to the same effect, but the position, in our opinion, cannot be sustained. The presiding judge charged the jury that if the injuries resulted by reason of defective apparatus or appliances existent within the building, they would render their verdict for defendants, and in effect excluded from the consideration of the jury any and all imputation of wrong except that which might arise by reason of an excess of voltage transmitted into the building over the wires of defendants and by reason of negligent default on the part of the company or their agents. This being true, on the facts in evidence, the case permits and calls for an application of the doctrine of res ipsa loquitur, and requires that the question of defendant’s responsibility should be determined by the jury. This doctrine has been discussed and applied in several recent cases before this Court, as in Dail v. Taylor, 151 N. C., 284; Fitzgerald v. R. R., 141 N. C., 530; Ross v. Cotton Mills, 140 N. C., 115; Stewart v. Carpet Co., 138 N. C., 66; Womble v. Grocery Co., 135 N. C., 474.” McAllister v. Pryor, 187 N. C., 832; Lynch v. Telephone Co., 204 N. C., 252; Collins v. Electric Co., 204 N. C., 320.

In the Lynch case, supra, at page 258-9, quoting from Jones, 2d Ed., Telegraph and Telephone Companies, part sec. 198, p. 225, et seq., it is said: “Furthermore, where so dangerous an agency as electricity is undertaken to be delivered into houses by electrical companies for daily use, very great care and caution should be observed, and such a degree thereof as is commensurate with the danger involved, and which is enhanced by the lack of the consumer’s knowledge of the safety of the means and appliances employed to effect the delivery. It is generally held that in case of injuries sustained from electric appliances on private property the doctrine of res ipsa loquitur applies, where it is shown that all the appliances for generating and delivering the electric current are under the control of the person or company furnishing the same.”

The court below charged the jury, in part: “I furthermore charge you, gentlemen, that it was the duty of the defendant to keep its transformers and electrical wires outside of the Lynn home in good repair; it was its duty to keep a constant lookout, a constant vigilance, and to observe a high degree of car,e in keeping its equipment outside of the *13 Rouse in good condition. It was tbe duty of tbe defendant to furnish to plaintiff’s borne electrical energy of such voltage as would not melt tbe wires inside tbe bouse and thereby set fire to tbe insulation which covered such wires. It was tbe duty of tbe defendant to see that its transformer was kept in a safe condition at all times, so as to reduce tbe current which flowed through it from a high voltage to a lower voltage — to such voltage as was within the resistance of the electrical equipment inside of the house where tbe plaintiff lived, and if it failed to do so in the exercise of that degree of care with which it is charged under the law, then it would he guilty of negligence, and if you so find, and further find by the same degree of proof that such negligence on its part was the proximate cause of the plaintiff’s injuries, it would be your duty to answer the first issue 'Yes,’ and if you fail to so find by the greater weight of the evidence, it would be your duty to answer it 'No.’ ”

The court below had theretofore fully and correctly charged the law •of actionable negligence and proximate cause. We think this charge, on the facts of this case, favorable to defendant. We do not think the •exceptions and assignments of error in regard to the charge comply with what is said in Rawls v. Lupton, 193 N. C., 428. Notwithstanding, we have examined the charge as a whole and see no prejudicial or reversible •error — in fact, it is advantageous to the defendant.

We see no error in admitting the testimony of the electrical expert, .Bunker. In its other exceptions and assignments of error to the evidence admitted as competent by the court below, the defendant says, in its brief: “This evidence, to which objections and exceptions were interposed, is, for the most part, inconsequential.”

We see no error in the admission of the evidence complained of. On the record, we find

No error.