Sumner v. Asheville Telephone & Telegraph Co.

Hoke, J., after stating the case: We have carefully considered the record and exceptions and find no error therein which gives the telegraph and telephone company any just ground of complaint. The positions insisted on by the defendant were substantially'recognized and approved by the court either in the general charge or in response to prayers for instructions presented by defendant, except the motion that the case be nonsuited and the prayer that the judge charge the jury that, on the evidence, if believed, no liability should attach. But these exceptions could not be sustained in view of evidence on the part of plaintiff tending to show that the plaintiff’s foreman or boss knew of the defect in the transformer and gave the plaintiff the order to proceed with his work without telling him of conditions or in any way informing him of the danger incident to the work under conditions as they actually prevailed. Under our authorities, and on the facts in evidence as they have been accepted by the jury, this forelnan or boss stood towards the plaintiff in the position of vice-principal, rendering the company resj)onsible *31 for bis negligent default in failing to prox^erly warn tbe plaintiff of tbe defects in tbe transformer on tbe poles of tbe power company and of tbe dangers incident to .existent conditions. Beal v. Fibre Co., 154 N. C., pp. 147-155; Chesson v. Walker and Myers, 146 N. C., 511; Turner v. Power Co., 119 N. C., 387. And there is nothing, either in tbe conduct of plaintiff or in bis contract of employment, that, as a matter of law, operates to protect said defendant from such liability. Mobile Electric Co. v. Sauges, 169 Ala., 341; Speight v. Rocky Mount Telephone Co., 26 Utah, 483; Coöperant Telephone Co. v. St. Clair, 168 Fed., 645; Raab v. Hudson River Telephone Co., 123 N. Y. Supp., 1037. In reference to tbe other defendant, tbe light and power company, we do not see that any recovery can be sustained. There is nothing to show that there was any contract or agreement which gave either tbe plaintiff or bis employers tbe right to be upon tbe power company’s poles. On tbe facts in evidence, and as to that company, they were both trespassers, and, on authority, there has been no breach of duty toward plaintiff which gives him any right to relief. Heskill v. Auburn Light Co., 209 N. Y., 96; Sias v. Lowell, etc., Co., 179 Mass., 343; Railway Co. v. Andrews, 89 Ga., 653; 9 R. C. L., title, “Electricity,” p. 1207; Curtis on Electricity, sec. 462. In this last citation it is said: “The well established principle in the law of negligence, that there is no liability to trespassers except for injuries willfully or wantonly inflicted, is applicable to electric companies and electric appliances. Though an electric company may have been guilty of some neglect in the cáse of its appointees, it is not liable for injury to one who is a trespasser as against the company unless the injury is willfully inflicted.” And our decisions are in approval of the general principle. Vassor v. R. R., 142 N. C., 68. We are of opinion, therefore, that on the record the judgment against the telephone- and telegraph company be affirmed, and, as against the power company, the judgment is reversed and motion for nonsuit be allowed. Affirmed as to telephone and telegraph company. Reversed as to power company.