Turner v. Southern Power Co.

Hoke, J., after stating the case: We are of opinion that this cause has been tried on correct principles and that no reversible error appears of record. Where an electric light and power company, operating under a gmsi-public charter, enters into an ordinary contract to furnish electricity for a given number of lights or for a given amount of power, the obligation as to the amount of power or light to be supplied must be construed and determined according to the general principles of contract, which, as a rule, are absolute; but, in reference to the duties incumbent on the vendor or company, by reason of the dangerous nature of electricity and as to the methods and appliances for its proper use and delivery, these, in the absence of specific stipulations concerning them, should be considered as arising, in part, .from the position the parties have assumed towards each other, and to 'be determined under the general principles of the law of negligence. A distinction illustrated and applied in the recent case of Dail v. Taylor, 151 N. C., p. 284, a case in which liability was established by reason of a breach of a legal duty on the part of the defendant, incident to the contract relations between them, and “not contained within its express terms and stipulations.” And where the principle applies they may also be said to rest upon the obligation that every guosi-public corporation is under to perform its duties properly when they have' dedicated their property to a public use and are in the exercise of chartered rights and privileges, conferred by the lawmaking power, in part for the *136 public benefit. From this it would seem to follow that such companies would not be at liberty to stipulate against negligence, nor to transfer the obligations incumbent upon them, without legislative sanction. The case has been tried substantially according to the principles indicated, and the degree of care obtaining in such cases has been correctly stated in the charge. Owing to the very dangerous nature of electricity and the serious and often fatal consequences of negligent default in its control and use, the law imposes a very high degree of care upon companies who manufacture and furnish it, and the exacting requirements laid down by his Honor below is in accord with well-considered authorities in this and other jurisdictions. “The utmost degree of care” was the language adopted and approved in Haynes v. Gas Co., 114 N. C., pp. 203-211. Said Burwell, J., delivering the opinion: “The danger is great, and the care and watchfulness must be commensurate with it.” In Electric Co. v. Lawrence, 31 Col., p. 308, it was held: “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.” And in Brice v. Wheeling Electric Co., 62 W. Va., 685, it was held that “Electrical companies are required to exercise the highest degree of care in reference to the condition, maintenance, and inspection of their wires and appliances.” In approving these formulas as to the degree of care required in such cases, the Court' does not intend to hold that there is a varying standard of duty in this State by which reponsibility for negligence is determined. Speaking to a similar question in Fitzgerald v. R. R., 141 N. C., 536, the Court said: “They were, therefore, charged with a high degree of care in this respect. This statement imports no infringement on the doctrine which obtains with us, that there are no degrees of care so far as fixing responsibility for negligence is concerned. This is true on a given state of facts and in the same *137 case. Tbe standard, is always tbat care wbicb a prudent man should use under like circumstances. What such reasonable care is, however, does vary in different cases and in the presence of different conditions, and the degree of care required of one, whose breach of duty is very likely to result in serious harm, is greater than when the effect of such breach is not near so threatening.” 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 óf 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; and in general terms will be found very well stated in the fifth headnote to Fitzgerald’s case, supra, as follows: “When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use the proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.” And this statement will be found in accord *138 with, well-considered cases in other courts, as in Griffin v. Manice, 166 N. Y., 188; Hawser v. R. R., 80 Md., 146; Sheridan v. Foley, 58 N. J. L., 230; Armour v. Golkouska,, 95 Ill. App., 492. These and numerous other authorities on the subject will disclose that it is not the injury alone that can call for the application of this doctrine or maxim, but the injury and the facts and the circumstances immediately attending it and constituting together the occurrence or event which present the conditions when it may be properly allowed to prevail. Thus in Shearman and Redfleld on Negligence, sec. 59, the authors say: “In many eases the maxim res ipsa loquitur applies; 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.” As shown in the note to Fitzgerald’s case, in 6 L. R. A. (N. S.), pp. 361 and 363 (141 N. C., 530), the term res ipsa loquitur has been sometimes inaccurately applied to cases where, in addition to facts and attendant circumstances, more or less objective in their nature and sufficient to indicate that negligent default is the more reasonable probability (Dail v. Taylor, supra), there is testimony ultra tending to indicate personal agency in producing the result complained of, presenting rather an ordinary case' of proof by circumstantial evidence. But the doctrine in strictness applies when the injury and the facts immediately attendant being otherwise sufficient, this direct evidence of personal responsibility is lacking; .and this, we think, is the case presented here. Tinder the facts submitted for the consideration of the jury and as accepted by them, all the means, implements, appliances for the generation, transmission, and delivery of this fluid, “this manifestation of kinetic energy,” as a very intelligent expert termed it in answer to an inquiry by the writer, *139 were under tbe control and management of defendants and their agents. Under these circumstances the plaintiff takes hold of a lamp to turn on the light in the same manner he has been accustomed to do without injury for a year or more and under like conditions, and receives an electric shock causing serious injury; and it is established, furthermore, that the amount of voltage stipulated for in the contract — even more than that— is not likely to produce harmful results if proper care is observed in its transmission. The usual and ordinary evidence in explanation available is in possession of defendants, peculiarly so in a case of this nature; this last condition being referred to by Connor, J., in Womble v. Grocery Co., supra, as the basis of the maxim, and in such case as stated the question of defendant’s responsibility must be referred to the jury — not, as shown by these authorities cited, under any presumption changing the burden of the issue, but as a cause in which evidence has been offered, from which negligence on the part of the defendant may be inferred. Speaking to this special feature of the doctrine in Womble’s case, it is said: “The principle of res ipsa loquitur in such cases carries the question of negligence to the jury, not relieving the plaintiff of the burden of proof, and not, we think, raising any presumption in her favor, but simply entitling the jury, in view of all the circumstances and conditions, as shown by plaintiff’s evidence, to infer negligence and say whether, upon all the evidence, the plaintiff has sustained his allegation.” "Where the application of the' doctrine we are discussing is properly called for, its effect and operation are not displaced or removed because there is testimony offered which if accepted by the jury would exonerate the defendant, for in all such cases the credibility of the evidence relevant to the inquiry is for the jury — they may accept or reject it. Undoubtedly, and having in view the high degree of care required in causes of this character, if it should be shown that a defendant has taken all reasonable precaution and used all the regulating and preventive appliances obtainable and recognized as practicable, and notwithstanding this the injury has occurred, in such case the defendants should be exonerated. There may be cases where the explanation offered in evidence is so full *140 and satisfactory that a court would be justified in charging the jury, “If they believe the evidence, the defendants are entitled to their verdict.” It is recognized that this is a dangerous agent, whose properties are not as yet fully known or understood, and from what is known, it appears that at times an amount and voltage of electricity which is ordinarily and reasonably treated as harmless may cause serious and even fatal results either from some condition of the injured person or other adventitious cause, which defendant may not be able either to foresee or prevent; and, therefore, when a company shows to a jury, by testimony which they accept as worthy of credence, that it has done all that the highest degree of care could reasonably require in reference to the “condition, maintenance, and inspection of their wires and appliances,” they should render a verdict relieving defendant of liability. But on the facts presented in this case, and for the reasons stated, the court properly refused to nonsuit the plaintiff or to hold, as requested, that there was no evidence of negligent default. The objection made to allowing an amendment in the midst of the trial, charging negligence by reason of a. defective bulb bought of one of the defendants, and the evidence tending to support it, has become immaterial in view of the charge relieving defendants from any and all imputation of negligence on that account. There is no error, and the judgment entered below is affirmed. No error.