Graham Ex Rel. Graham v. Sandhill Power Co.

ClabKsoN, J. This cause was tried, upon the part of the plaintiff, upon the theory that plaintiff was hurt while playing, as a child, with other children, on top of a sawdust pile, on Sunday, 23 April, 1923. The defendant constructed its transmission line 2 or 3 feet from the top of the sawdust pile, where it knew, or by the exercise of reasonable care and prudence ought to have known, that children were in the habit and accustomed to play. Plaintiff, while playing, came in contact with the “live wire” of defendant near the pile and was seriously injured. There were numerous families living in the neighborhood, and plaintiff and other boys were accustomed to go there and play on the sawdust pile. The sawdust pile was a few yards from a neighborhood road. The wires were close to and in easy reach of the children playing on the sawdust pile, which was 15 or 20 feet high. *385 The theory of defendant was that the plaintiff, after being warned by his companions not to do so, deliberately undertook to test out the effects of the wires, and purposely jumped from the top of the sawdust pile to the wires, catching and coming in contact with at least two or three of the wires, causing a short-circuit through his hand and neck until, when the weight of his body had sagged the wires sufficiently, his right foot touched the sawdust pile, causing the electric current to pass through his right side into the ground, burning his foot at the point of exit. That the wires were set out of reach, some 10 or 12 feet from any -point on the sawdust pile, and plaintiff, to come in contact, had to jump to catch the wires. That defendant did not know that children played around the sawdust pile, and had no reason to suppose they played there. That the nearest house was about one-quarter of a mile away, and the plaintiff and other boys lived as much as three-quarters of a mile away. The evidence was in conflict as to where the sawdust pile was located, whether on the Duncan Gillis land or Fort Bragg territory. There is no evidence in the case that plaintiff trespassed on any land of defendant, nor was there any evidence in.the case that the sawdust pile was on defendant’s land or right ’of way. From the facts in this case, we do not think this material. . Defendant’s first group of exceptions and assignments of error is to the testimony of Dr. G. W. Brown, a medical expert. This testimony was to the effect that plaintiff was mentally below normal; that he had inherited insanity. The plaintiff was 15 years old when he was injured. The medical expert went so far as to say that plaintiff “hasn’t the mind of a boy over 8 or 10 years old.” ¥e think this evidence material and competent, and the fact that he had inherited insanity also competent as corroborative of the main fact that plaintiff was mentally below normal. In S. v. Cunningham, 72 N. C., 474, “The prisoner, in his defense, relied upon the plea of insanity, and to establish it gave in evidence that some of his uncles and aunts were insane, but the case states that ‘there was no testimony whatever that the prisoner had exhibited signs of insanity,’ and the testimony, which is made a part of the case, fully bears out the statement just quoted. When a foundation is laid by some evidence tending to show insanity in the prisoner, it is held admissible in corroboration, and as an additional link in the chain of circumstances to give in evidence, a hereditary taint in the blood, of a like malady.” We think the foundation was laid, the “plaintiff was mentally below normal ” for the corroboration.of hereditary taint. It is well settled law that “The inference of a medical practitioner is frequently and favorably invoked with regard to questions relating to *386 mental condition.” The Modern Law of Ev. (Chamberlayne), Vol. 3, part sec. 2006. 11 R. C. L., p. 603, sec. 29. The mental condition may be shown by persons who are not experts, but who hare had opportunities for observing and have observed the person. In White v. Hines, 182 N. C., p. 279, this Court said: “The defendants contended that testimony to the effect that he 'was crazy/ or Mot normal/ was the statement of a positive conclusion or fact, and, for this reason, incompetent. But in this jurisdiction it is established that a nonexpert witness, who has had conversations and dealings with another, and a reasonable opportunity, based thereon, of forming an opinion as to the mental condition of such person, is not disqualified on the ground that his testimony is a mere expression of opinion. McLeary v. Norment, 84 N. C., 235; In re Stocks, 175 N. C., 224; In re Broach, 172 N. C., 522. One not an expert may give an opinion, founded upon observation, that a certain person is sane or insane. Whitaker v. Hamilton, 126 N. C., 470; Clary v. Clary, 24 N. C., 78.” The next group of exceptions and assignments of error by defendant is to the fact that plaintiff, at the trial, testified -that he was hurt playing on the sawdust pile, when in fact he said, the day he was hurt, “The last I can remember is when I was there at Uncle Jack 'Watson’s.” This was before he was hurt. This testimony was stricken out by the court below and the jury instructed not to consider it. Defendant, in its brief, says: “Later, William H. Graham, father of the plaintiff, was questioned by plaintiff’s counsel, and testified that T asked him (plaintiff), and he said he was just playing on the sawdust pile, but how it happened he-didn’t know.’ ” Defendant contends that this evidence was very material to plaintiff and prejudicial to defendant. It sustains plaintiff’s theory of the injury and contradicted the defendant’s. On this group of exceptions the full testimony necessaiy to be considered of the father is as follows: “Q. Had Claude returned home on Sundays at other times and told you that he and the boys had been playing on this sawdust pile? Answer: ‘Yes, sir.’ “Q. What did he tell you ? Answer: ‘He told me they had been playing down there in the sawdust pile.’ “Q. Now, Graham, have you tried to find out from Claude as to how this matter happened? Answer: ‘Yes, sir.’ “Q. What did he tell you ? Answer: ‘He said he couldn’t remember. I asked him, and he said he was just playing on the sawdust pile, but how it happened he didn’t know.’ *387 “Q. Did be say anything else about going there — anything in connection with it? Answer: ‘No, sir; he said he didn’t remember going there. It seemed that that day he can’t remember nothing. But he remembered going there at different times before, but it seemed like from the shock he couldn’t remember.’ ” From the entire testimony we cannot hold it prejudicial. The fact that at other times on Sundays plaintiff and the boys played on the sawdust pile was some evidence going to fix defendant with notice that the pile was a play-place. The father, although saying that plaintiff said “he was just playing on the sawdust pile,” follows this with the positive statement, “No, sir; he said he didn’t remember going there,” etc. The next group of exceptions and assignments of error of defendant: Dr. G. W. Brown, introduced by plaintiff, was admitted by the defendant to be a medical expert. This witness was permitted, over defendant’s objection, to testify as follows: “Q. From the examination made by you of the boy, Claude Graham, and the condition you found him in, have you an opinion satisfactory to yourself as to whether or not he caught hold of a live wire with either one or both of his hands ? Answer: ‘I have an opinion; I don’t think he grabbed the wire; I think that hand just barely touched the wire— his right hand.” Dr. Brown attended the boy, examined and treated him, and gave in detail his injuries. He gave it as his opinion that the condition came from burns; saw a print of wire across his neck — and that he was burned by a live wire. The court asked Dr. Brown if he had any opportunity for observation of matters of this kind — burns by electricity. He answered, “Very little — not very much.” He was asked by the court if he had opportunity to observe conditions before; he answered, “I have seen a few cases.” The court then asked witness, “And you have an opinion satisfactory to yourself sufficient to answer the last question ?” , Answer: “Yes, sir.” Then the question and answer, which defendant particularly objected to, above set forth, was asked and answered. We can see no error under the facts and circumstances of this case to the questions and answers. “A large class of cases embracing statements as to the probability or the possibility of an event, the capacity or tendency of an act' or a machine, the cause or the effect of a fact (italics ours), may fairly be grouped together, because the reason why the opinion rule is urged against them is in general that the thing to which the witness testifies is not anything which he has observed, but is a quantity which lies in *388 estimate only and is the result of a balancing of concrete data. Tiis is no sufficient reason for excluding such, statements, because it must almost always be impossible for a witness to reproduce in words absolutely all tbe detailed data which enter into bis estimate, and there can be no danger in receiving such an estimate from a competent witness.” 4 Wigmore on Evidence (2 ed.), sec. 1976. In S. v. Clark, 34 N. C., p. 151, it was held competent for a physician to give his opinion how a wound had been made. “Whether the skin of the throat under the chin of the deceased was cut by a sharp instrument or torn.” The physician had not seen the body, but heard the evidence on the trial. In S. v. Wilcox, 132 N. C., 1120, it was held competent for a physician to state the cause of a wound. S. v. Morgan, 95 N. C., p. 641. In the above cases the witnesses were experts. In S. v. Skeen, 182 N. C., 844, it was held competent for a nonexpert witness to testify as to his opinion, “His clothes were damp — shoes muddy — -looked like; didn’t look like they had been unlaced for several days.” The real controversy in the case is on the motion of defendant as of nonsuit at the close of all the evidence. It is well settled in this jurisdiction that on this motion the evidence must be considered in the light most favorable to plaintiff. There was evidence sufficient to be submitted to the jury that the defendant knew, or by the exercise of reasonable care ought to have known, that children in the community were accustomed'to use the sawdust pile as a place to play, and there were numerous families in the community. It is admitted on all the evidence that defendant had a uniform height — 19 feet from the ground — to- string on the poles the wires carrying 11,000 voltage of electric current, and had fixed this as a safe height to carry so dangerous and deadly voltage. Defendant could have constructed its line easily with a small cost some distance from the sawdust pile, but, according to plaintiff’s evidence, it was constructed within 2 or 3 feet above the top of the pile — in easy access to children playing on the pile. It was not disputed that these wires, so near the sawdust pile, were not insulated, but “naked and live wires,” carrying 11,000 voltage. As to how the injury occurred, the jury accepted the plaintiff’s theory. The learned and accurate judge in the court below' who .tried this case charged the jury: “Now, gentlemen, one who maintains dangerous instrumentalities or appliances as could or would likely attract children in play, or permits dangerous conditions to exist, with a knowledge that children are in the habit of resorting there for amusement, or by the *389 exercise of reasonable care and prudence ought to know that children are so in the habit of going there to play, is’liable to a child who is injured — that is, as to a child of tender years who from infirmity is incapable of exercising a proper care or degree of care for its own protection. The degree of care must be commensurate with the dangerous nature of the article, and greater or less as would be reasonably expected of young ’children. A boy of the age of 14 years is presumed to have sufficient capacity to be able to sense danger and to have power to avoid it, and this presumption will stand unless rebutted by proof of such lack of intelligence as is usual of a boy of similar age. The law imposes upon minors the duty of giving such attention to their surroundings and acts to avoid dangers as may reasonably be expected of persons of their age and capacity. Children, as well as adults, must use such discretion as persons of their age and discretion ordinarily have, and one who is apparently capable of sensing peril or danger cannot be permitted with impunity to indulge in conduct which he knows or ought to know to be reckless.” The court below gave a full and accurate charge on the issues submitted, applied the law to the facts, and gave fairly the contentions of the parties. No exception was taken to the charge. Is defendant liable to plaintiff on the facts and circumstances of this case? We think it is, and that the nonsuit was properly refused. The weight of authorities in this and other States sustain this view. In Haynes v. Gas Co., 114 N. C., p. 203, Burwell, J., it was held that John W. Haynes, about 10 years of age, who was “a very healthy, intelligent, moral and industrious boy, well educated for his age,” who was killed by taking hold of a “live wire,” on or near the sidewalk over which he was passing in the city of Raleigh — the principle of res ipsa loquitur applied. “A complete prima facie case of negligence was made out,” . . . and “we are clearly of the opinion that there was no evidence of contributory negligence.” In Harrington v. Wadesboro, 153 N. C., p. 437, Hoke, J. (defendant was held liable), the facts were: “That on 4 July, 1908, the Bratton Amusement Company was conducting a moving-picture show under a tent erected on an open and vacant lot in the town, being an exposed and public place, and the defendant, under a contract with the company, had installed the wires and was supplying the electricity for carrying-on the enterprise. That the wire conducting the electricity to the tent passed over a path in which numbers of persons were accustomed to move, and had been negligently placed or allowed to sag so that persons going along the path could easily reach it, some of the witnesses saying it was so low that one would have to bend his body to pass under it, and just at this point the wire was uninsulated for a space of a foot or more. That the intestate, an inexperienced boy of 17 years of age, living with *390 bis mother and doing work on the farm, in passing along the path, caught hold of the wire and received a shock that killed him.” In Ferrell v. Cotton Mills, 157 N. C., p. 528, Walker, J. (defendant was held liable), in the opinion, citing numerous authorities, held in general: “The defendant permitted a guy-wire of its electric pole to become loose from its fastening in the ground and to hang down its pole at an exposed and uninclosed place within a few inches from a naked and uninsulated wire charged with a deadly or high voltage of electricity. This hanging guy-wire was attractive to the boys, who would swing on it from the pole and back again, and who would congregate there for the purpose. About eight months after the guy-wire became loose, the plaintiff’s intestate, his 6-year-old son, while swinging, as indicated, was instantly, killed by electricity passing suddenly through the guy-wire from contact with a highly charged wire carrying the current : Held, the defendant knew or should have known of the dangerous condition existing, and that children would be attracted to and were accustomed to play with the loose guy-wire, and the technical defense that the plaintiff’s intestate was a trespasser would be unavailing.” In Benton v. Public Service Corp., 165 N. C., p. 355, Brown, J. (the defendant was held liable), the facts were: “The evidence tends to prove that the plaintiff’s son, 12 years old, and not well grown for his age, was killed, on 22 June, 1909, by coming in contact with an uninsulated high-power wire of the defendant, carrying some 2,300 volts of electricity. The boy was attending a Sunday-school party on Eugene Street, one of the main thoroughfares of the city of Greensboro, with some other boys, and when they got through with the entertainment in the house, went out on the street and were standing around on the sidewalk, under and near to the tree in which the intestate of the plaintiff was killed. Two other boys besides the intestate of the plaintiff climbed up the tree, and three or four more were standing around the tree on the sidewalk. The intestate of the plaintiff came in contact with the wires in the tree, one of them burning his hand and the other his left leg as if a hot iron had been run across the flesh. The other boys in the tree were not injured. The wires were exposed 1% to 2 feet in the trees and were about 20 feet above the ground. The insulation was rubbed off by the limbs coming in contact with the wires and rubbing against them. The tree was between 30 and 40 feet in height, and the limbs came within 7 feet of the ground, making it an easy tree to climb. The evidence also tended to prove that Eugene Street is a thickly settled and populous street, and that the defendant’s wires along this street were in very bad condition as to insulation, especially where they passed through the trees, and that at night especially the wires in this and other trees near by could be seen ‘sparking.’ ” The defendant’s *391 attention was called to tbe condition of its wires before tbe injury, and tbey were not repaired. See, also, Ragan v. Traction Co., 170 N. C., p. 92. In Love v. Va. Power Co., 86 W. Va., p. 393: it is beld: “A company maintaining an electric line, over wbieb a current of bigb and dangerous voltage passes, in a place to wbieb it knows or should' anticipate others lawfully may resort for any reason, such as business, pleasure, or curiosity, and in such manner as exposes them to danger of contact with it. by accident or inadvertence, is bound to take precaution for their safety by insulation of the wire or other adequate means. A declaration alleging that defendant, for a period of two years or more, permitted its uninsulated bigb-power transmission cables, carrying a current of dangerous voltage, to remain within 4 feet of the top of a pile of slate, slag or other refuse from a near-by coal mine, lawfully placed there subsequent to the erection of the cables by the owner or lessee of the tract over which they passed, when defendant knew or should have known that children of miners living in that neighborhood bad long been accustomed to play on the pile, but made no effort to safeguard and protect them by the insulation, elevation or removal of its lines to another portion of the tract, as a result of which failure plaintiff’s intestate, a child of tender years, was killed, states a cause of action.” In Talkington v. Washington Water Power Co., 96 Wash. Rep., 386 (the defendant was beld liable), it was beld: “the negligence of a power company in maintaining high-voltage wires on the roof of a warehouse, and the contributory negligence of a boy 10 years of age who came in contact with the wires after being warned to keep away from them, are questions for the jury, where it appears that the power line was maintained 15 inches above the comb of the roof; that the roof was easily accessible to boys by means of a low lean-to with a practically flat roof; that boys were in the habit of playing on the roof, and that the boy thought the wires were ordinary telephone wires, and there was testimony that be was not warned until the very instant of the accident.” In Meyer v. Menominee & Marinette L. & T. Co., 151 Wis., p. 279 (defendant was beld liable), it was beld: “A boy, about 15 years old, while upon the top of a lumber pile, took bold of defendant’s electric-lighting wires and was killed. The lumber pile bad for a year stood adjacent to a much-traveled private road through a lumber yard, was about 24 feet bigb and was easy of access by children, steps to the top of the pile being formed by projecting boards. For many years lumber bad been piled to about the same height at that place, and some fifty children living near by were accustomed to play upon the piles. The wires, which were strung upon poles along the side of the road, passed *392 over the pile in question 21 inebes above its top. There was evidence that they were very slack, sagging much inore than is customary; that where they passed over the pile the insulation was worn or rotten off; that defendant had been notified and warned of the condition of the wires and poles about eight months before the accident, and it knew or ought to have known that children were likely to be upon the lumber pile: Held, that the jury were warranted in finding that defendant was negligent in the use of its wires so placed and strung, and that it ought reasonably to have anticipated that some child would be injured thereby, and, there having been no contributory negligence on the part of the deceased or his parents, a recovery was properly had against the defendant, although the boy was a bare licensee or invitee upon the lumber pile.” In Temple v. Electric Light and Power Co. (Miss.), 11 L. R. A. (N. S.), 449, the Court said: “It is perfectly idle for the appellee to insist that it was not bound to have reasonably expected the small boys of the neighborhood to climb that sort of tree. The fact that such boy would, in all probability, climb that particular tree, being the kind of tree it was, was a fact which, according 'to every sound principle of law and common sense, this corporation must have anticipated. The argument that it did not almost suggests the query whether the individuals composing this corporation, its employees and agents, had forgotten that they were once small boys themselves. The immemorial habit of small boys to climb little oak trees filled with abundant branches reaching almost to the ground is a habit which corporations stretching their wires over such trees must take notice of.” The editors of the L. R. A., in citing the Temple case, supra, after reviewing a number of decisions, say: “As to the duty to guard against danger to children in placing electric wires, no rule can be enunciated that would be accepted by all courts. As in the Turntable’ cases and those involving other 'attractive nuisances,’ the authorities are in irreconcilable conflict. It would seem, however, that reason and humanity, alike, support the rule laid down in the above case, that those dealing with such an extremely dangerous agency as electricity should, in stringing their wires in places where it is reasonably probable that children will go, be charged 'with the very highest degree of skill and care’ to protect the children from injury while in the vicinity of such places, even though they may be trespassers.” In Parker v. R. R., 169 N. C., p. 68, defendant was held not liable. The wires were located under the bridge, and the boys knew what they were. The injured boy, being dared by some of the other boys, reached 22 inches under the bridge and touched the wire rather than take a dare. *393 In McAllister v. Pryor, 187 N. C., p. 832, we have recently said, under another aspect, in general: “There is nothing by which the user of an electrical appliance can detect the presence of an unusual high voltage or deadliness of current before touching the wire or coming in contact with it, and the greatest degree of care is required of those furnishing this deadly instrumentality to guard against the danger of its ordinary use as the circumstances may require. Where the furnisher of electricity for a building was, under its contract with the owner, required to furnish a low voltage of electricity for lighting and various domestic uses, and there is evidence tending to show that in attempting to iron clothes within the building with an electric iron the plaintiff touched the ironer and received a severe shock of electricity, to her injury, which should not and would not ordinarily have Occurred by such use had the defendant supplied the current it had contracted to do, the doctrine of res ipsa-loquitur applies, and the issue of actionable negligence should be submitted to the jury, denying defendant’s motion as of non-suit thereon.” The great weight of authorities sustain the contention of plaintiff in this case. The development of electric power is of vast importance to the commercial, domestic and civic life of our people, and should be encouraged. Electricity is an invisible and subtle power. In the manufacture and distribution it requires trained and skilled artisans. People, unless educated in the use of it, know little about its deadly qualities. It can only be discovered by the touch, and that brings bodily affliction and death if there is a high voltage in the wires. Those who are engaged in the business are held by the courts to the highest degree of care in its manufacture and distribution. The protection to be given the uninformed public, especially children, is pot burdensome or expensive. Naked wires can be easily clothed— insulated. In the instant case the defendant’s wires, running within 2 or 3 feet of the top of the sawdust pile, were naked “live wires,” carrying a high voltage — a deadly current of electricity. It was in a community of numerous families, near a road and a place frequented by the negro boys of the community, where they played, as was their custom. This was known, or by the exercise of reasonable care ought to have been known, to defendant. We think there was sufficient evidence to go to the jury, and the motion as of nonsuit was properly refused. On the entire record, we can discover No error.