Williams v. Carolina Power & Light Co.
250 S.E.2d 255
N.C.
1979
Check Treatment
*402 COPELAND, Justice.

The only issue presented for review in this case is whether the entry of summary judgment in favor of the defendant was proper. The Court of Appeals held that it was. Williams v. Carolina Power & Light Co., 36 N.C. App. 146, 243 S.E. 2d 143 (1978) {Arnold, J., concurred in by Morris and Martin, JJ.). As this Court has determined that the motion was erroneously granted, we must reverse.

When a party moves for summary judgment under Rule 56 of the North Carolina Rules of Civil Procedure, the court must first determine whether there are genuine issues as to any material facts and then whether the movant is entitled to judgment as a matter of law. Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E. 2d 823 (1971). We have emphasized that summary judgment is a drastic measure, and it should be used with caution. Id. This is especially true in a negligence case in which a jury ordinarily applies the reasonable person standard to the facts of each case. Page v. Sloan, 281 N.C. 697, 190 S.E. 2d 189 (1972).

The defendant first claims that it was entitled to summary judgment because the undisputed facts show it was not negligent as a matter of law. We cannot agree.

The -plaintiff alleged, inter alia, that the defendant was negligent by not insulating the wires running near Mr. Tucker’s roof. While it is not negligence per se to use uninsulated wires, the rule in this jurisdiction was aptly stated in Mintz v. Murphy, 235 N.C. 304, 69 S.E. 2d 849 (1952).

“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, is only reasonable. Therefore, the law does not compel companies to insulate . . . their wires everywhere, but only at places where people may legitimately go for work, business, or pleasure, that is, where they may be reasonably expected to go.” Id. at 314, 69 S.E. 2d at 857 (quoting 18 Am. Jur. Electricity § 97 (1938)).

There is a discrepancy in the parties’ evidence as to the distance between the wires and Mr. Tucker’s roof. This factual determination would certainly have some bearing on the foresee *403 ability of a person coming into contact with the wires. Thus, there is a genuine issue as to a material fact relating to defendant’s duty to insulate the wires, and summary judgment is improper on the ground that defendant was not negligent as a matter of law.

Defendant next contends that summary judgment was properly granted because the facts show that its negligence, if any, was not the proximate cause of plaintiff’s injuries.

This Court has held that as a matter of law a power company’s alleged negligence is sometimes not the proximate cause of injuries resulting from a person’s contact with electrical wires. The test of proximate cause is whether the risk of injury, not necessarily in the precise form in which it actually occurs, is within the reasonable foresight of the defendant. Davis v. Carolina Power & Light Co., 238 N.C. 106, 76 S.E. 2d 378 (1953); Hall v. Coble Dairies, Inc., 234 N.C. 206, 67 S.E. 2d 63 (1951).

We have held it to be unforeseeable as a matter of law that a metal line, which came in contact with a power company’s wires, would be used to fly a kite, Pugh v. Tidewater Power Co., 237 N.C. 693, 75 S.E. 2d 766 (1953), or that a person would be electrocuted when he attempted to disengage electrical wires that had become tangled in a tree he had chopped down. Deese v. Carolina Power & Light Co., 234 N.C. 558, 67 S.E. 2d 751 (1951).

However, it is only in exceptional cases, in which reasonable minds cannot differ as to foreseeability of injury, that a court should decide proximate cause as a matter of law. “[PJroximate cause is ordinarily a question of fact for the jury, to be solved by the exercise of good common sense in .the consideration of the evidence of each particular case.” W. Prosser, Torts § 45 (4th ed. 1971) (quoting Healy v. Hoy, 115 Minn. 321, 132 N.W. 208 (1911)). See also Lynch v. Carolina Telephone and Telegraph Co., 204 N.C. 252, 167 S.E. 847 (1933).

These facts do not present such an exceptional case. It is not unforeseeable as a matter of law that the type of injury that occurred in this case would result from defendant’s alleged negligence. Reasonable minds could differ; therefore, the question must be determined by the jury. Summary judgment is improper under this argument.

*404 The defendant’s final argument is that it is entitled to summary judgment because the evidence shows that plaintiff was guilty of contributory negligence as a matter of law.

It has long been the law in this State that “[t]he burden of showing contributory negligence ... is on the defendant, and the motion for nonsuit may never be allowed on such an issue where the controlling and pertinent facts are in dispute, nor where opposing inferences are permissible from plaintiff’s proof, nor where it is necessary ... to rely, in whole or in part, on evidence offered for the defense.” Battle v. Cleave & Rogers, 179 N.C. 112, 114, 101 S.E. 555, 556 (1919). The motion for summary judgment and the motion for a directed verdict, formerly nonsuit, are functionally very similar. Dendy v. Watkins, 288 N.C. 447, 219 S.E. 2d 214 (1975).

It is well settled that when a person is aware of an electrical wire and knows that it is or may be highly dangerous, he has a legal duty to avoid coming in contact with it. See, e.g., 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). That does not mean, however, that a person is guilty of contributory negligence as a matter of law if he contacts a known electrical wire regardless of the circumstances and regardless of any precautions he may have taken to avoid the mishap. See generally Bowen v. Constructors Equipment Rental Co., 283 N.C. 395, 196 S.E. 2d 789 (1973); Lewis v. Barnhill, 267 N.C. 457, 148 S.E. 2d 536 (1966). The following cases, Floyd v. Nash, supra, and Bogle v. Duke 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) are distinguishable because in those cases there was no evidence of due care taken by plaintiffs’ intestate to avoid the wires.

Furthermore, there is an inference raised by this plaintiff’s evidence that the ladder hit the wires due to an unavoidable accident. “As a general rule, one who has capacity to understand and avoid a known danger and fails to take advantage of that opportunity ... is chargeable with contributory negligence.” Presnell v. Payne, 272 N.C. 11, 13, 157 S.E. 2d 601, 602 (1967).

Plaintiff testified through his deposition that the land behind Mr. Tucker’s house was sloping. The plaintiff, his assistant and *405 Mr. Tucker were all balancing the ladder away from the house when Mr. Tucker was called away to answer a telephone call.

Defendant presented evidence to the contrary. Thus, a question of fact is raised which must be resolved by the jury. “If the evidence is conflicting on issues of negligence and contributory negligence, such are issues of fact and require jury determination. These issues may not be answered by the court as a matter of law.” Southern Railway Co. v. Woltz, 264 N.C. 58, 60, 140 S.E. 2d 738, 739 (1965). The trial court’s grant of summary judgment for the defendant was improper in this case.

For the reasons set out above, the opinion of the Court of Appeals is reversed, and the case is remanded for trial on the merits.

Reversed and remanded.

Chief Justice SHARP dissents. Justices BRITT and BROCK took no part in the consideration or decision of this case.