Raulf v. Elizabeth City Light & Power Co.

Pee Cueiam. There was ample evidence of negligence on the part of defendant, the Light and Power Company, both as to insufficient insulation of its wires, their improper placing on the poles, the primary wire being too near the service wires, and also in the failure of the defendant-company and its employees to shut off the current in time after the primary wire had broken, and defendant knew it, or had fair opportunity to know it, and of the dangers that imminently threatened by reason of the conditions presented. There was some opposing testimony from defendants tending to negative negligence on its part, but, under a full and fair charge, the jury having accepted plaintiff’s version of the occurrence, his right to recover is clearly established, and we find no reason for disturbing the result. On the argument, it was earnestly urged for error that a witness who had testified to the unusual conditions he discovered at the place where the primary wire had broken, “That he had noticed overhead where two wires had crossed, forming a short circuit, and that every few minutes it would light up the whole place,” and that he heard snapping and popping of electric wires overhead, etc., was asked, “What did the disturbance indicate?” and was allowed to answer, over defendant’s objection, “It looked as if it was coming from the wires not 'being properly wrapped.” The testimony giving the impression of the witness as to facts under his immediate observation and well within his experience, there would seem to be no valid objection to the evidence. Jones v. R. R., at the present term, citing Britt v. R. R., 144 N. C., 242; Tire Setter Co. v. Whitehurst, 148 N. C., 446. The question and answer were later withdrawn by leave of court, his Honor telling the jury that both were stricken out and would not be considered by them. If, therefore, error was presented here, we are of opinion that, on the facts of this record, the same was cured. Again, it was insisted that error was committed in certain questions and answers appearing in the evidence of the witness, H. P. Charles, an expert electrician, examined in behalf of plaintiff. Without setting out the questions in full, which are very elaborate, they *694 are well within the domain of expert evidence, embody every fact essential and relevant to the occurrence spoken to by the witness as to the cause of intestate’s death, and are put on the supposition that the jury shall find these facts to be true, and we find no reversible error, either in the questions or answers. The words appearing in one of these questions, “whether the conditions arising on the facts stated would naturally and inevitably lead to intestate’s death,” are not in form to be approved, but there was no serious contention that if the primary wire, carrying 2300 volts, came in contact with the service wire running into the drug store, that it would produce death. The expert witness for defendant, in effect, testified to the same thing, and, on the record, we think the rather insist-' ent words objected to may not be held for reversible error. It is not unlike the case presented in Lynch v. Mfg. Co., 167 N. C., pp. 98-101, where, in the question to the expert as to the cause of death, the word used was the proximate cause of the death. The term, while disapproved, was held to have worked no harm to appellant, the facts showing that, if the cause, it was undoubtedly the proximate cause. Nor is the question objectionable as embodying the very fact the jury were to pass upon. The -question directly at issue was not whether the contact between the service wire and primary wire, carrying 2300 volts, would produce death — about this, as stated, there was no serious dispute — but whether, in the case presented, this contact had been caused by defendant’s negligence. It was further contended that the court committed error, to defendant’s prejudice, in ordering a nonsuit as to individual defendants, Pen-dleton & Perry. We are inclined to concur in the judgment of his Honor as to these defendants; but in no event, on the facts presented, could this order of nonsuit be held for reversible error. It is the settled rule in cases of this character that “where the wrongful acts of two or more persons concur in producing a single injury, and with or without concert between them, they may be treated as joint tort feasors and, as a rule, sued separately or together, at the election of plaintiffs” (Hipp v. Ferrol, 169 N. C., 551-554, citing Hough v. R. R., 144 N. C., 692; 38 Cyc., pp. 488, et seq.) ; and while we have held that, at the instance of a defendant, the other wrong-doers may be made parties, this is only in cases where, on the facts presented, there is a question of primary and secondary liability between them; but, in this ease, the defendant’s liability having been established on the ground that it negligently allowed its primary wire, carrying 2300 volts of electricity, to come in contact with its service wire, running into the drug store, which they were under contract to supply with 110 volts, no such position could be for a moment maintained by it, and the nonsuit of its codefendant has therefore *695 worked them no injury. Gregg v. Wilmington, 155 N. C., 18. The other exceptions are without merit, and, on the record, the judgment for plaintiff must be affirmed. No error.