Collins v. Virginia Power & Electric Co.

Clarkson, J. Most of defendant’s exceptions and assignments of error were abandoned. Rules of Practice in the Supreme Court of North Carolina, 200 N. C., p. 831, part of Rule 28. *326 The defendant in its brief sets forth the following questions involved for our decision: (1) Is the plaintiff barred of recovery by the provisions of the agreement between him and defendant company, dated 16 September, 1921? ¥e think not. (2) Did the court err in submitting to the jury the question of whether or not the res ipsa loquitur rule applies in this case, and in its instructions to the jury thereon? We think, taking the charge as a whole, there was no prejudicial or reversible error. (3) Was there error in the court’s instruction to the jury on the issue of damages ? On the argument it was stated by counsel for defendant that if the court decided the other questions against defendant, the error which the defendant complained of would not be pressed. The defendant is a public-service corporation. It is given the extraordinary power and authority to take the private property of individuals or corporations, upon payment of a just compensation necessary for its public purposes. Also certain rights over State Highways, etc. C. S., 1705, 1706, 1695, 1696, 7525. For the benefits it assumes the burdens. It cannot contract against its negligence when discharging its primary duty to the public. Any other holding would put the individual or corporation using and paying for its power at the mercy of the public-service corporation. In Slocumb v. R. R., 165 N. C., at p. 343, the principle is well stated, citing numerous authorities: “It is well settled here and elsewhere that a common carrier while performing its duties to the public cannot contract against its negligence; but the public had no interest in the plant of the plaintiff or in the lease between him and the defendant, and the authorities seem to be uniform that such contracts are not against public policy and are enforceable.” Singleton v. R. R., 203 N. C., 462, is distinguishable from the present case: (Headnote) “The rule that a common carrier may not contract against liability for its negligence applies to transactions in the performance of its duties to the public as a common carrier and not to transactions involving no public duty or obligation.” In Cooley on Torts, Vol. 3 (4th ed.), chap. 21, part sec. 494, at p. 449, it is said: “But there may be contracts which, perhaps, public policy would forbid. This has been held to be the case with the contracts of common carriers which assume to exempt them, not only from liability for the inevitable risks attendant upon their business, but for risks from the negligence of themselves and their servants. In numerous cases it has been held that they could not by any stipulation relieve themselves from responsibility for injuries resulting from a want of ordinary care. . . . (part sec. 496, pp. 460-61) The cases of car *327 riers and telegraph companies have been specifically mentioned, because it is chiefly in these cases that such contracts are met with. But although the reasons which forbid such contracts have special force in the business of carrying persons and goods, and of sending messages, they apply universally, and should be held to defeat all contracts by which a party undertakes to put another at the mercy of his own faulty conduct.” 6 R. C. L., sec. 132, at p. 727-8. The evidence in the present case is to the effect that defendant had placed a bracket on the warehouse, wooden frame building, run the wires from the primary current and had complete and sole control of the setup and current. The wires, bracket, equipment, appliances, installation, insulation of wires, material, maintenance and inspection were all done and furnished by defendant on plaintiff’s premises. Defendant’s witness, J. H. Cranwell, testified, in part: “In looking after service it is my duty to inspect service and see that the appliances are all right. That is part of my job to inspect the service and see that they are kept in good condition. I inspected the service into the premises of Mr. Collins, where the fire occurred, every month.” In fact, after the fire, defendant removed the wires. Under the facts and circumstances of this case, the position contended for by defendant cannot be sustained — the contract is against public policy, null and void, and of no avail as a defense to this action. Any other holding would limit and endanger the use in the homes and elsewhere of electric power; and this beneficent, modern convenience seriously handicapped, as users know practically nothing about this invisible, subtle and dangerous force. McAllister v. Prior, 187 N. C., at p. 855-6. The next contention of defendant is in regard to the charge of the court below on the aspect of res ipsa liquitur. This Court has recently written on the subject now debated, in Lynch v. Tel. & Tel. Co., ante, 252, quoting from Jones Telegraph and Telephone Companies (2d ed.), part sec. 198, at p. 225: “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 ease 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.” Now, in the present case it was shown by plaintiff, and not seriously denied by defendant, that as before stated, the wires, bracket, etc., on *328 plaintiff’s premises were all furnished and installed, inspected, etc., by defendant. It has sole control and responsibility. In terse and correct language defendant says: “The one acute question was, ‘What caused the fire producing the injury?’ and, upon that question not only was the factual evidence of plaintiff’s and defendant’s witnesses conflicting, but the expert evidence was equally so.” The charge of the court below must be construed as a whole, not disconnectedly or disjointedly. From a careful reading of the charge of the court below, it gives clearly and fairly the contentions of the litigants on both sides, and the law applicable to the facts. The only exception and assignments of error (the damages one abandoned), is the one we are now considering hereinafter set forth. The court below, before it set forth the res ipsa loquitur attitude, gave these contentions and charged as follows: “Plaintiff offered evidence tending to show that there were a number of witnesses who saw the fire when it was first discovered and that it was around the bracket a foot and a half or twelve inches from it; fire in foot or foot and a half of the eaves of the house. . . . On the other hand, defendant contends you ought not to be so satisfied first, that the fire was on this warehouse as the plaintiff contends that it was in the beginning, and second, that even if it was that it was due to some other cause than the electrical energy it was supplying and that you should answer this issue No.’ I charge you, gentlemen, in this case if the plaintiff recover at all he must recover on negligence as alleged in the complaint. He contends it was due to the negligent manner in which the defendant permitted its apparatus to become in or be in and that it was negligent in that and that due to that negligence this building was burned and his property destroyed, that you should find one of these facts from this evidence and by its greater weight. On the other hand, defendant contends, that you ought not to be so satisfied, either that the fire was occasioned at this particular place where the bracket was located or if you should be so satisfied of that that you ought not to be satisfied by the greater weight of the evidence that the electrical energy coming over No. 6 wire be of sufficient intensity to occasion the burning of this building.” The contentions and charge deal with the disputed fact of the origin of the fire between the plaintiff and defendant. As this fact was disputed on this attitude the jury had to determine same. The court below later charged the jury: “I charge you, therefore, that when the thing which causes an injury is shown to be under the management of the defendant and the happening is such as in the ordinary course of things does not happen, if those who have the management of the instrumentalities use proper care in the absence of explanation by the defendant, it constitutes some evidence that the accident arose from the want of care. The occurrence or injury may, in connection with other circumstances, *329 sufficiently show negligence as to justify judgment where the thing causing the injury is under the management of the defendant and the accident is such that in the ordinary course of things does not happen if ordinary care is used.” If the facts were as contended by plaintiff as to the origin of the fire, it is intimated in the above charge that the rule of res ipsa loquitur applied. It is the duty of this Court to reconcile the charge if possible and for this purpose consider it as a whole. This aspect of the charge would, with the above contentions and charge, and taking all the contentions and charge as a whole into consideration, indicate that if the jury, by the greater weight of the evidence, reached the conclusion in their deliberations that the fire started at the bracket, then the principle of res ipsa loquitur would apply. It is only where there is a material and irreconcilable conflict that a new trial is ordinarily awarded. Taking the charge as a whole, we see no prejudicial or reversible error. In the judgment below we find No error.