Murphy v. Carolina Power & Light Co.

ClabksoN, J. One Eogers, a witness for plaintiff, was asked the following question: “Did you have any conversation with any of them, and, if so, what did they say?” A. “One of the gentlemen said to me, ‘Did it burn much?’ and I said, ‘You would have thought it burned if you could have heard it popping and cracking,’ and they said, ‘I don’t think there is any danger now, we have fixed it back.’ That is all we said.” Defendant contends this was error. We cannot so hold. This conversation took place five or ten minutes after the repair force had fixed the power line and before the repair force had gotten back in the truck that they came in, and while the witness was nearby looking at what was being done by the repair force. All the evidence, on this aspect, was to the effect that it burned and there was popping and cracking. It was a matter of sight and common knowledge that when the wires charged with electric current were stretched high above the fence, which the witness saw the repair force do, that there would be no danger. The superintendent of the line, a witness for plaintiff, stated if the wires should be near to a wire fence over which it passed it would have electrified it without being in contact with it, and that is what is called “induced current.” All the evidence was to the effect that the power line was out of repair. Mr. Beeves testified, “She said, ‘It is that power line down,’ and I stepped out in the yard where I could see and I said, ‘7es, it is a wire down/ ” The telephone operator at Leicester was immediately called up and told that the line was down. The telephone operator' notified defendant, “I‘ told them I had heen notified that they had a ivire down on New-found, and they said they would send a man right out — that was something along about the noon hour.” U. F. Ford testified: “I was there in the road loading logs there and this line was down over there in the field, at this post, and Mr. Clark there and his force came up and fixed the line up while I was loading the logs there, and came back and got in the truck and went off. It was about three o’clock.” We can see nothing prejudicial in the question and answer from the facts disclosed by this record. The company knew its line was down and dangerous, and sent men out to fix it, which they did. The cases cited and the principle of res gestee invoked by the defendant are not applicable. We may say that the observation in 10 K. C. L., *492 p. 975, has a bearing: “It is not easy always to determine when a declaration is a part of the res gestoe. It is dependent upon the particular circumstances under which the declaration is made. The courts recognize the difficulty of laying upon this subject a rule that may be applied in every case. The tendency of recent adjudications is to extend rather than to narrow the scope of the introduction of evidence as part of the res gestee." A witness, Robt. S. Shook, was asked, “Did you notice his body? Describe his appearance — the body of the child.” A. “His hands were gripped that way (indicating), and we had to pull them open to see the inside of the hands. They were burned and scorched and scars on his neck and one little one up here, and on this hip here down almost on that, was a place bigger than my hand — just looked cooked — the flesh was just cooked at three or four places on the back of his shoulder, back here — just different places.” The defendant, at the time, objected that in view of the admissions in this case that it was not material. Similar evidence of the boy’s father was introduced by plaintiff without objection. The testimony tended to show how excessive and deadly the voltage was. Defendant contends this was error. "We cannot so hold. McAllister v. Pryor, 187 N. C., at p. 839. In Ellis v. Power Co., 193 N. C., at pp. 361-2, it is said: “Those who are engaged in the electric business are held by the courts to the highest degree of care in the manufacture, distribution, maintenance and inspection. . . . Electric power is an industry-producing agency, and the hydro-electric development has been one of the greatest factors in the State’s progress, and especially its industrial expansion. Every legitimate encouragement should be given to its manufacture and distribution for use by public utility corporations, manufacturing plants, homes and elsewhere. On the other hand, the highest degree of care should be required in the manufacture and distribution of this deadly energy and in the maintenance and inspection of the instrumentalities and appliances used in transmitting this invisible and subtle power.” “The maxim res ipsa loquitur applies in many cases, for 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. Sher. and Redf., on Negl., sec. 59; Shaw v. *493 Public-Service Corp., 168 N. C., p. 618.” O’Brien v. Parks Cramer Co., ante, 359. It is well settled from tbe facts here disclosed that the principle of res ipsa loquitur applies. The matter has been so thoroughly considered in this jurisdiction that we refer to some of the cases on the subject: Haynes v. Gas Co., 114 N. C., 203; Mitchell v. Electric Co., 129 N. C., 169; Turner v. Power Co., 154 N. C., 131; Shaw v. Public-Service Corp., 168 N. C., 611; McAllister v. Pryor, 187 N. C., 839; Graham v. Power Co., 189 N. C., 381; Helms v. Power Co., 192 N. C., 784; Ramsey v. Power Co., 195 N. C., 788; O’Brien v. Parks Cramer Co., supra. Outside of the principle of res ipsa loquitur, which applies, defendant was notified about the defect about a quarter to 12 o’clock. (1) Defendant was notified before 12 o’clock, and from the evidence had ample time to come and repair the power line that transmitted this dangerous and subtle power that was “popping and cracking” before the boy was electrocuted. He was sent to the store by his father after 1 o’clock. (2) H. A. Ballard, the maintenance superintendent, testified: “This disconnect of theirs is controlled by one pull of the handle; three switches are pulled out at once, as I remember it; the operator would have to go one hundred feet and cut the power off by pulling a lever.” S. A. Johnson, superintendent, testified: “It would take about a half minute to cut off the power on that line after receiving notice of trouble on it; that kills the line.” The lad was 13 years of age. In a case of this kind, plaintiff’s intestate was not guilty of contributory negligence. Graham v. Power Co., 189 N. C., 381, and cases cited. See Brown v. R. R., 195 N. C., 699. Defendant failed to plead contributory negligence. It was not entitled to the issue. C. S., 523. Fleming v, R. R., 160 N. C., 196; Moore v. Chicago Bridge, etc., Works, 183 N. C., 438. It may be noted that the exceptions to the charge do not comply with the rules. Rawls v. Lupton, 193 N. C., 428. If our brethren at the bar will examine that case they can readily make up a. case on appeal to this Court in accordance with the well settled rules. We do not think there is any error in the charge, and it complies with C. S., 564. The court below defined, in accordance with all the authorities, the law of negligence, proximate cause and damages. The contentions were fairly given on both sides. The case is not complicated as to the law or facts. The jurors are presumed to be men of “good moral character and sufficient intelligence.” In Alexander v. Cedar Works, 177 N. C., at p. 149, it is said: “If the instructions of the court to the jury were not sufficiently full and explicit, or plaintiffs desired any particular phase of the ease to be stated, they should have submitted a special request for what they wanted. *494 Simmons v. Davenport, 140 N. C., 407; Potato Co. v. Jeanette, 174 N. C., 237.” Davis v. Long, 189 N. C., at p. 137; O’Brien v. Parks Cramer Co., supra. The defendant complains of the amount of the verdict — the value of the life of the boy, as fixed by the jury. The court below refused in its discretion to set the verdict aside and grant a new trial. In Hyatt v. McCoy, 194 N. C., at p. 762, it is said, quoting numerous authorities: “It is provided by statute that the judge who tries the cause may in his discretion entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial . . . for excessive damages (C. S., 591); and it has been said ‘That there is no reason which can be advanced in favor of setting aside verdicts because of excessive damages which does not apply to setting aside for inadequacy of damages.’ Benton v. Collins, 125 N. C., 83. So it has been held in a number of cases that to set aside a verdict and to grant a new trial for excessive or inadequate damages is, as a rule, the irreviewable right of the presiding judge.” In the present case defendant did not make a motion for judgment as in case of nonsuit at the close of plaintiff’s evidence nor at the close of all the evidence, that the evidence was not sufficient to be submitted to the jury, under C. S., 567. The law is well settled by numerous authorities that the matter is waived as to the insufficiency of the evidence to be submitted to the jury on the question of negligence. In Nowell v. Basnight, 185 N. C., at p. 148: “If the first motion is overruled, the defendant-may except and go to the jury; or except, introduce evidence and renew motion after all the evidence. . . . Exception is waived if motion is not renewed (citing authorities).” In the above case the change of practice, under C. S., 567, is lucidly discussed by Walker, J. On the whole record we can find No error.