Shaw v. North Carolina Public-Service Corp.

WalkeR, J., after stating the case: The case seems to have been reduced practically to a question of fact, whether the plaintiff’s injuries were due to the defective transformer or to the defective incandescent' lamp attached to the cord, which he carried in his hands and used for throwing light on the molds, so that he could see how to clean them. The feed wire of the defendant, from which it supplied the current of 119 volts to the foundry, carried as much as 2,300 volts, which is not only a dangerous, but a very deadly current. It appears by strong inference from the evidence that the defective transformer was the cause of the injury, because if it was due to a defect in the lamp, or its socket, it is strange that the accident had not occurred before, as the lamp had been used for a long time for the same purpose and under like conditions. But this question was fairly submitted to the jury, with proper instructions, the burden of proof having been placed upon the plaintiff to establish his cause of action. The court properly overruled the motion for a nonsuit. There certainly was evidence of negligence on the part of the defendant, and the plaintiff was entitled to the most *615 favorable construction of it, upon sucb a motion. Brittain v. Westall, 135 N. C., 492; Freeman v. Brown, 151 N. C., 111; Lloyd v. R. R, 166 N. C., 24. The court told the jury that if the accident was due to a defect in the extension cord or in the socket, plaintiff could not recover, and they should answer the issue accordingly, but that if it was, on the contrary, due to a defect in the transformer caused by the negligence of the defendant, their verdict should be the other way. The charge was full, direct, and intelligible, and instructed the jury strictly in accordance with previous decisions of this Court in like cases. Most of the charge, or at least a large part of it, was given at the request, of the defendant, and covered the case in all material respects. There is, therefore, no ground for complaint left to the defendant as to this part of the charge, which was responsive to its own requests for instructions. Rut it is stated that the court refused to give its third and thirteenth prayers. If the defendant was entitled to have them given as they were framed, which is doubtful, the court gave them substantially in its general charge, and the defendant received the full benefit of the principles of law they embodied. It is not required that they be given in their very language, but the judge can modify the phraseology and use his own language, provided he does not thereby weaken their legal force and effect. A substantial compliance with a request to charge is sufficient, as we have often held. Rencher v. Wynne, 86 N. C., 268; Graves v. Jackson, 150 N. C., 383. If the general charge o'f the court is examined with the utmost scrutiny, nothing will be found therein that militates against the law of the case. It was correctly and amply stated throughout. But the defendant urges that if the injury was caused by a defect in the transformer, whereby a strong and deadly current was sent into the foundry, even in violation of the stipulation of the contract that it should not exceed 119 volts, it has not been shown that the defective condition of the transformer was due to its negligence, as there is no evidence that it knew of such condition before the accident occurred and in time to prevent it. While there may be no evidence that it actually knew of it, there is some evidence that it should have known of it, and would have known of it if it had exercised proper care and diligence in respect to it. There are two answers to this contention: (1) Where it appears on the trial of a case that a certain fact, especially if .defensive or exculpatory in its character, is peculiarly within the knowledge of the. defendant, his failure to give to the jury the benefit of such knowledge, when, were the facts in his favor, he would naturally do so, is a sufficient circumstance to justify the inference that the fact is, in truth, against him; and if he wishes to avoid this inference being made, he should proceed or go forward with his proof. McKelvey on Ev., p. 11, *616 and cases in note 11. He is not concluded by bis silence, but be leaves it open for tbe jury to decide tbe fact against bim, or, in other words, be exposes bimself to an adverse finding as to tbe facts. (2) We bave very recently bad occasion to discuss and decide tbe question as to wben it may be necessary for one of tbe parties to proceed with bis proof, if be would not take tbe risk of a disappointing or unfavorable verdict. We said in Ridge v. R. R., 167 N. C., at p. 518: “Tbis maxim of tbe law, res ipsa, loquitur, extends no further in its application to cases of negligence than to require tbe case to be submitted to tbe jury upon tbe face of tbe evidence as affording some proof of tbe fact in issue. Tbe jury are not bound to decide accordingly; but if they think proper to do so, when applying their reason and common sense to tbe case, they may reject tbe conclusion that there was negligence and ascribe tbe injury to some other cause. It merely carries tbe case to tbe jury for their consideration, and is bottomed upon tbis logical principle, as decided in many cases: Wben a thing which causes injury is shown to be under tbe management of tbe defendant, and tbe accident is siicb as in tbe ordinary course of things does not happen if those who bave tbe control of it use tbe proper care, it furnishes evidence, in tbe absence of explanation by tbe defendant, that tbe accident arose from want of such care. Ellis v. R. R., 24 N. C., 138; Aycock v. R. R., 89 N. C., 321 (sparks falling on right of way) ; Stewart v. Carpet Co., 138 N. C., 60, and Womble v. Grocery Co., 135 N. C., 474 (elevator cases) ; Ross v. Cotton Mills, 140 N. C., 115, and Morrisett v. Cotton Mills, 151 N. C., 31 (sudden and unexpected starting of machines) ; Haynes v. Gas Co., 114 N. C., 203, and Turner v. Power Co., 154 N. C., 131 (loose or unguarded wires charged with electricity) ; Fitzgerald v. R. R., 141 N. C., 530 (where a piece of coal fell from tbe tender) ; Knott v. R. R., 142 N. C., 242 (where sparks flew from tbe engine, as in tbe Aycoclc case) ; and numerous other like cases which tbe present Chief Justice has collected in a note to tbe Aycoclc case, 89 N. C. (Anno. Ed.), at marg. p. 331.” We then referred to Sweeney v. Erving, 228 U. S., 233 (citing and quoting with approval from Stewart v. Carpet Co., supra), to tbis effect: “In our opinion, res ipsa loquitur means that tbe facts of tbe occurrence warrant tbe inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking; but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they may’ make a' case to.be decided by the jury, not that they forestall tbe verdict. Res ipsa loquitur, where it applies, does not convert the defendant’s general issue into an affirmative defense. Wben all tbe evidence is in, the question for tbe jury is whether tbe preponderance is with the plaintiff.” *617 , Now we understand wbat tbe rule is and its extent. If a thing happens which ordinarily does not -occur if due care is used, it is not only a natural, but a common-sense inference that there must have been a lack of such care.. It is only prima, facie and does not necessarily establish a want of care, but is some evidence of it for the jury to consider; and in this sense of the term, res ipsa loquitur, it is a question for the defendant, or the party against whose interests the inference may be drawn, to consider whether he will take his chance before the jury without explanation of the unusual circumstance, or whether, especially if the fact be otherwise than the situation and circumstances imply, he will proceed to explain it by proof that there was no negligence, or that, if there was, it was not his negligence. In Haynes v. Gas Co., 114 N. C., at p. 208, Justice Burwell (quoting from Whitaker’s Smith on Negligence, 423), said: “If the accident is connected with the defendant, the question whether the phrase res ipsa loquitur applies or not becomes a simple question of common sense.” And again, speaking of an electric wire which was trailing in a street of the city of Raleigh, he said: “Guided by the principle announced in these eases, we come to the conclusion that this plaintiff should have been allowed to say to this defendant: ‘The wire you put in the street killed my son while passing along the highway, as he had a right to do. If you are not in default, show it, and escape responsibility.’ ” He did not mean to lay down the broad principle that this was an affirmative defense — the nonexistence of negligence — but that the circumstances pointed to the defendant as the responsible party, and as he had peculiar knowledge of the facts, fairness and justice required that he should come forward and give some explanation if he was not in fault, or his failure to do so might afford some proof to the jury in confirmation of the prima facie .case and deepen their conviction of his guilt. Turner v. Power Co., 154 N. C., 131. The Haynes case also decides that an electric company must use the highest degree of care in protecting persons against the deadly agency which they handle in their business. But this proposition is more fully stated in Mitchell v. Electric Co., 129 N. C., 169 : “The defendant company was engaged in the business of manufacturing, producing, leasing, and selling light made from the use of electricity, which is the most deadly and dangerous power recognized as a necessary agency in developing our civilization and promoting our comfort and business affairs. It differs from all other dangerous utilities. Its association is with the most inoffensive and harmless piece of mechanism, if wire can be classified as such, in common use. In adhering to the wire, it gives no warning or knowledge of its deadly presence; vision' cannot detect it; it is without color, motion, or body; latently and without sound it exists, and being odorless, the only means of its discovery lies in the *618 sense of feeling, communicated through, the touch, of a person, which, as soon as done, he becomes its victim. In behalf of human life and the safety of mankind, it behooves those who would profit by the use of this subtle and violent element of nature to exercise the greatest degree of care and constant vigilance in inspecting and maintaining the wires in perfect condition.” This was approved by us in Hicks v. Tel. Co., 157 N. C., 519. See also Turner v. Power Co., supra; Fisher v. New Bern, 140 N. C., 512; Houston v. Traction Co., 155 N. C., 4; Harrington v. Wadesboro, 153 N. C., 437; Starr v. Telephone Co., 156 N. C., 435; Benton v. Public-service Corporation, 165 N. C., 354. The maxim res ipsa loquitur applies in many cases, for the affair speaks for itself. It is not that in any case negligence can be assumed from the mere fact of an accident and an injury, but in these cases the surrounding circumstances which are necessarily brought into view, by showing how the accident occurred, contain without further proof sufficient evidence of the defendant’s duty and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof that the injured person is able to offer or that it is necessary to offer.” Sh. and Redf. on Neg., sec. 59. The case of Turner v. Power Co., supra, seems to be “on all-fours” with this one, as the facts of the two cases are strikingly alike. It was there held, approving Electric Co. v. Lawrence, 31 Col., 308, that while a corporation furnishing electric light to others for private gain may not be regarded as an insurer, it owes its patrons the duty to protect them from injury by exercising the highest skill, most consummate care and caution, and utmost diligence and foresight in the construction, maintenance, and inspection of its plant and appliances which is attainable, consistent with the practical operation of its plant. This doctrine is well sustained, not only by our own cases, but by many in other jurisdictions. What the Court said in Electric Co. v. Letson, 68 C. C. A., 453, quoted and approved by this Court in Houston v. Traction Co., supra, is a full and complete answer to defendant’s contention, although we are not required to assent to the whole of it in order to use it as an authority: “The contention of the company amounts to this: that if the wires were properly installed, it cannot be held responsible for their being out of repair, unless it is proved that they got out of repair through its own fault. But this loses sight of the duty of the company not only to make the wires safe at the start, but to keep them so. They must not only be put in order, but kept in order. The obligation is a continuing one. The safety of patrons and the public permits no intermission. Constant oversight and repair are required and must be furnished. Customers who contract for a harmless current to light their houses are entitled to rely upon such inspection and repairs as will effectually guard them *619 against a dangerous current. They cannot guard themselves. Any attempt to do so would expose them to immediate peril. They must take and use the current on trust, relying upon the protection of the company. In view of this, when a deadly current enters a customer’s house and kills him, it is not too much to call the company to explain the existence of the defect which caused the tragedy.” We see from these references, and they might be greatly multiplied, that those who use and control so dangerous and subtle an agency as electricity in their commercial pursuits must not be permitted to theorize in regard to its probable effects or speculate upon chances as to results, when the danger to human life is so great and may be so disastrous. It is not too much to require of them the highest practicable degree of care and vigilance in the management of their appliances which carry and conduct this deadly current, for no ordinarily prudent man would bestow less in such circumstances. If it raises expenses to be more watchful and cautious than in ordinary cases where there is no such dangerous agency employed, and thereby profits are reduced, it is far better that it be so than that the toll of human life be alarmingly increased. While the dealer in electricity may not be an insurer of safety in its use by customers, and other persons coming in contact with it, the care exacted by the law is raised to the highest degree in order to be commensurate with the great danger involved and to safeguard the public. All authorities agree that there must be frequent, if not constant, inspection,, and unremitting vigilance, and in this case there is evidence from which the jury could infer that, in this respect, the defendant had failed in its duty; and if it really had not, it should have come forward with the proof that the defect in the transformer (for the jury- have evidently found that it was defective, and not the .socket or cord of the lamp) was not discovered in time to repair it after having made the inspection which the law required, or that it was not discoverable and that the accident occurred without its fault, or was unavoidable by the exercise of the highest degree of care. This was not shown, and in its absence the defendant cannot complain of the verdict, for it was. warranted by the evidence as it stood. The defendant had contracted to furnish a current not exceeding in power 119 volts, and as plaintiff had no control or supervision of the transformer, he could not be expected to know whether it was in order or not. It was in the sole charge of the defendant, upon whom alone rested the duty of inspection and to whom only was it accessible for such purpose. Proper care would, ordinarily, have kept it in good condition and prevented the injury, and defendant alone knew whether that care had been used or whether the injury was due to something beyond its control, a latent or undiscoverable defect, or inevitable accident. The situation surely called for some rational explanation. *620 The questions to the expert were correctly framed upon the facts in evidence, and properly submitted. Summerlin v. R. R., 133 N. C., 554; Parrish v. R. R., 146 N. C., 125. The question put to defendant’s witness, C. E. Scott, was competent for-the purpose of contradiction or to impeach his credibility, even if not to show a change in the appliance, as substantive evidence of negligence, under the rule stated in Lowe v. Elliott, 109 N. C., 581; Myers v. Lumber Co., 129 N. C., 254; Aiken v. Mfg. Co., 146 N. C., 328. The evidence of the declaration of Scott was competent for the same reason, and does not come within the rule excluding the statements of agents made after the fact. The court distinctly instructed the jury in its general charge, and also in response to defendant’s prayer, using its own language, that defendant would not be liable if the injuries were caused by a defective cord or defective socket, and if they found that to be the case, they should answer the first issue, as to negligence, “No,” and that they could only answer it “Yes” if they were caused by the transformer, which defendant negligently permitted to be defective or out of order. While we have stated that defendant cannot complain of the charge, so far as it assumed that, if the plaintiff’s injuries were caused wholly or in part by a defective cord or socket attached to the incandescent lamp, the defendant would not be liable, because if that assumption was correct, the charge in respect thereto was without error, we do not wish to be understood as passing upon the question of defendant’s liability, if there was a defect in the lamp, but leave that open for future consideration. As the' charge was in favor of defendant, so fax as the defect in the lamp is concerned, if the assumption was erroneous there was no resultant harm to the defendant, and when we have referred to the charge in this respect- as being in accordance with our former decisions, we mean merely that it was correct in so far as it dealt with the general principles of negligence, as declared in previous decisions of this Court. Our conclusion in this case is based entirely upon the defect in the transformer. Besides, the jury have evidently found, under the charge, that there .was no defect in the lamp. The charge as to the measure-of damages was correct. No error.