Rice v. City of Lumberton, 69 S.E.2d 543

Rice v. City of Lumberton

69 S.E.2d 543

N.C.

1952

Check Treatment

WiNBORNE, J.

Thе assignment of error, determinative of this appeal, is directed against the ruling of the trial court in аllowing motion of defendant, renewed at the close of all the evidence, for judgment as of nonsuit under provisions of G.S. 1-183.

*235 In considering sucb motion, “the defendant’s evidence, unless favorable to the рlaintiff, is not to be taken into consideration, except ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍when not in conflict with plaintiff’s evidence, it may be used to explain or make clear tbat wbicb has been offered by plaintiff,” Stacy, C. J., in Harrison v. R. R., 194 N.C. 656, 140 S.E. 598, citing S. v. Fulcher, 184 N.C. 663, 113 S.E. 769. This rule is applied also in these cases: Hare v. Weil, 213 N.C. 484, 196 S.E. 869; Crawford v. Crawford, 214 N.C. 614, 200 S.E. 421; Tarrant v. Bottling Co., 221 N.C. 390, 20 S.E. 2d 565; Jeffries v. Powell, 221 N.C. 415, 20 S.E. 2d 561; Gregory v. Ins. Co., 223 N.C. 124, 25 S.E. 2d 398; Pappas v. Crist, 223 N.C. 265, 25 S.E. 2d 850; S. v. Oldham, 224 N.C. 415, 30 S.E. 2d 318; Atkins v. Transportation Co., 224 N.C. 688, 32 S.E. 2d 209; Buckner v. Wheeldon, 225 N.C. 62, 33 S.E. 2d 480; Humphries v. Coach Co., 228 N.C. 399, 45 S.E. 2d 546; Perry v. Hurdle, 229 N.C. 216, 49 S.E. 2d 400; Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307; Chesser v. McCall, 230 N.C. 119, 52 S.E. 2d 231; Winfield v. Smith, 230 N.C. 392, 53 S.E. 2d 251; Carson v. Doggett, 231 N.C. 629, 58 S.E. 2d 609; Ervin v. Mills Co.., 233 N.C. 415, 64 S.E. 2d 431; Register v. Gibbs, 233 N.C. 456, 64 S.E. 2d 280.

Therefore, taking the evidence offered by the plaintiff, and so much of defendant’s evidence as is favorable to the plaintiff, or tends to explain and make clear that which has been offered by the plaintiff, in the light most favorable to plaintiff, this Court is of opinion, and holds that there is sufficient evidence tо take the case to the jury on the issue of negligence of defendant.

A municipal corporation, engaged in the business of supplying electricity for private advantage and emolument is, as to this, regarded as a private ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍corporation, — and in such capacity, is liable to persons injured by the actionable negligence of its servants, agents and officers. Fisher v. New Bern, 140 N.C. 506, 53 S.E. 342; Harrington v. Wadesboro, 153 N.C. 437, 69 S.E. 399.

The principle is rеcognized and applied in numerous other cases before this Court. See Grimesland v. Washington, 234 N.C. 117, 66 S.E. 2d 794.

And this Court declared in Helms v. Power Co., 192 N.C. 784, 136 S.E. 9, that: “Electric companies are required to use reasonable care in the construction and maintenanсe of their lines and apparatus. The degree of care which will satisfy this requirement varies, of course, with the circumstances, but it must always be commensurate with the dangers involved, and where the wires ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍mаintained by a company are designed to carry a strong and powerful current of electricity, the law imposes upon the company the duty of exercising the utmost care and prudence consistent with the practical operation of its business, to avoid injury to those likely to comе in contact with its wires.”

*236 And in Small v. Utilities Co., 200 N.C. 719, 158 S.E. 385, it is said that “Due to the deadly and latently dangerous character of electricity, the degree of care required of persons, corporate or individual, furnishing electric light and power to others for private gain, has been variously stated.” Then after reciting such exрressions, the Court said: “In approving these formulae as to the degree of care required in suсh cases, it is not to be supposed that there is a varying standard of duty by which responsibility for negligence is to be determined. . . . The standard is always the rule of the prudent man, or the care which a prudent man ought to use under like circumstances. What reasonable care is, of course, varies in different cases and in the presence of different conditions.”

And these principles apply in cаses of broken high tension wires. Diligence must be exercised to repair any breaks in such wires. To permit ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a broken wire charged with electricity of high voltage unnecessarily to remain in or near a highwаy is evidence of negligence. Fisher v. New Bern, supra. And this is true where the company has notice of the condition, regardless of the cause which produced it. However, under some circumstances, in order to shоw negligence in this respect, a reasonable time to repair it must have elapsed. And what is reasonable time depends on the circumstances of each case. On the other hand, where there is a broken wire charged with electricity of high voltage, extending into a street or highway сreating imminent danger to others, whether sufficient time has elapsed to make repairs is not the tеst of negligence. But where an electric company receives notice that its wire, chаrged with electricity of high voltage, is down in a street or highway it should take speedy and efficient aсtion. And, if the situation be such that a reasonably prudent person would cut off the current, this should be donе, and the current kept off until proper precautions are taken to prevent danger to persons or property from the fallen wire, and until it is ascertained that it is safe to turn it on. Where, hоwever, the wire is down at a place where the company has no reason to anticiрate that anyone will be injured thereby, it is not negligent in failing to cut off the electricity at the first opportunity. See 29 C.J.S. 591, Electricity 45; 18 Am. Jur. 480, Electricity 87-95; Fisher v. New Bern, supra; Osborne ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍v. Tennessee Electric Power Co., 158 Tenn. 278, 12 S.E. 2d 947; Lutolf v. United Electric Light Co., 184 Mass. 53, 67 N.E. 1025; Mayor v. City of Madison, 130 6a. 153, 60 S.E. 461; Lexington Utilities Co. v. Parker, 166 Ky. 81, 178 S.W. 1173; Kentucky and West Virginia Power Co. v. Riley, 233 Ky. 224, 25 S.E. 2d 366; Hayden v. Carey, 182 Wis. 530, 196 N.W. 218.

Now, as to the issue of contributory negligence pleaded in answer of defendant: The law imposes upon а person sui juris the obligation to use ordinary care for his own protection, and the degree of such care should be commensurate with the danger to be avoided.

*237 In tbe light of this principle, and under the circumstances which the evidence being considered tends to show, contributory negligencе on the part of intestate of plaintiff is not established as a matter of law. Eather, the evidence presents a case for the jury under proper instruction by the trial judge.

For reasons stated, the judgment of nonsuit is

Eeversed.