Bowen v. Constructors Equipment Rental Co.

GRAHAM, Judge. Plaintiff’s Appeal Plaintiff appeals from the court’s order setting aside the issue of damages. Since this portion of the verdict was set aside as a matter of law, rather than in the court’s discretion, plaintiff may appeal as an aggrieved party. McNeill v. McDougald, 242 N.C. 255, 87 S.E. 2d 502; Akin v. Bank, 227 N.C. 453, 42 S.E. 2d 518. This appeal raises the question: Where, in an action brought under our wrongful death statute as rewritten in 1969, there is evidence tending to show that persons entitled to receive the damages recovered have a shorter life expectancy than that of deceased, is it error for the court to fail to instruct the jury to consider the life expectancy of such persons in determining the amount of damages, if any, recoverable pursuant to G.S. 28-174 (a) (4) ? We answer in the affirmative and affirm the order setting aside the issue of damages for the reason that the jury was not so instructed. G.S. 28-173 confers upon the personal representative of a decedent the right of action to recover for the decedent’s wrongful death. G.S. 28-174 sets forth the basis on which the amount of damages is to be determined. Prior to 14 April 1969, G.S. 28-174 provided: “The plaintiff in such action may recover such damages as are a fair and just compensation for the pecuniary injury resulting from such death.” Under this provision damages were “determinable on the basis of the pecuniary injury suffered by the decedent's estate as a result of his, death,” Smith v. Mercer, 276 N.C. 329, 334, 172 S.E. 2d 489, 492, and the measure of damages was the present value of the net pecuniary worth of the deceased based upon his life expectancy. Smith v. Mercer, supra; Bryant v. Woodlief, 252 N.C. 488, 114 S.E. 2d 241; 81 A.L.R. 2d 939. In 1969 the provisions of G.S. 28-174 were rewritten. The new statute, effective 14 April 1969, provides in pertinent part: “Sec. 28-174. Damages recoverable for death by wrongful act; evidence of damages, (a) Damages recoverable for death by wrongful act include: — 75 — (1) Expenses for care, treatment and hospitalization incident to the injury resulting in death; (2) Compensation for pain and suffering of the decedent; (3) The reasonable funeral expenses of the decedent; (4) The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected: a. Net income of the decedent, b. Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered, c. Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered; (5) Such punitive damages as the decedent could have recovered had he survived, and punitive damages for wrongfully causing the death of the decedent through maliciousness, wilful or wanton injury, or gross negligence; (6) Nominal damages when the jury so finds. (b) All evidence which reasonably tends to establish any of the elements of damages included in subsection (a), or otherwise reasonably tends to establish the present monetary value of the decedent to the persons entitled to receive the damages recovered, is admissible in an action for damages for death by wrongful act.” In commenting on the new statute Chief Justice Bobbitt stated in Smith v. Mercer, supra at 333, 172 S.E. 2d at 492: “The 1969 Act provides for the recovery in the personal representative’s action of (1) expenses for care, treatment and hospitalization incident to the injury resulting in death; (2) compensation for pain and suffering of the decedent; (3) the reasonable funeral expenses of the decedent; (4) punitive damages; and (5) nominal1 damages. Prior to the 1969 Act, the administrator had no right of action to recover such damages. Moreover, the — 76 — 1969 Act provides for the recovery of ‘(t)he present monetary value of the decedent to the persons entitled to receive the damages recovered,’ including but not limited to compensation for enumerated items. (Our italics.) We do not undertake now to define the legal significance of this provision. Suffice to say, damages determinable in accordance with this provision of the 1969 Act are quite different from damages determinable on the basis of the pecuniary injury suffered by the decedent’s estate as the result of his death.” In discussing the 1969 changes in the law relating to damages recoverable in a wrongful death action, Professor Byrd states: “The basic measure of recovery, as well as some of the specific items included under it in the statute, seems to shift the focus for the determination of wrongful death damages from ascertaining the loss of net income to the decedent’s estate to ascertaining all monetary losses to the beneficiaries. A reasonable interpretation of the statute might well hold that not only the present worth of the decedent’s net income (the measure of recovery under the prior statute) but also the beneficiaries’ life expectancies and expectations of gain from the decedent must be considered in determining the losses based upon termination of the decedent’s earnings.” Byrd, Recent Developments in N.C. Tort Law, 48 N.C.L. Rev. 791, 804-805. It is consistently held in jurisdictions where the measure of damages in death cases is “loss to beneficiaries,” rather than the “loss to estate,” that a beneficiary’s right to recover the value of expected benefits is limited to his life expectancy. See for instance: Rikimatsu Kawamura v. Honek, 127 Cal. App. 509, 16 P. 2d 150; Parsons v. Easton, 184 Cal. 764, 195 P. 419; Siebeking v. Ford, 128 Ind. App. 475, 148 N.E. 2d 194; Baltimore Transit Co. v. State, 194 Md. 421, 71 A. 2d 442; Mississippi Oil Co. v. Smith, 95 Miss. 528, 48 So. 735; Fisher v. Trester, 119 Neb. 529, 229 N.W. 901; Whitaker v. Blidberg Rothchild Co., 296 F. 2d 554 (4th Cir. 1961) ; 25A C.J.S., Death, § 121, p. 1013; 22 Am. Jur. 2d, Death, § 162, p. 723; Annot., Death of Infant — Measure of Damages, 14 A.L.R. 2d 485, § 23; S. Speiser, Recovery for Wrongful Death, § 3:5, p. 78.. Cf. Jones v. Dague, 252 S.C. 261, 166 S.E. 2d 99. — 77 — We think it clear that damages recoverable under G.S. 28-174 (a) (4) are not determined by ascertaining the net pecuniary loss suffered by the estate, as was the case under former G.S. 28-174. They are determined by ascertaining the present monetary loss suffered by those persons entitled to receive the damages. (Beneficiaries under the Intestate Succession Act.) Here, the parents of the deceased are “the persons entitled to receive the damages.” Since they obviously could not receive any benefit after their own death, their life expectancy is material in determining “the present monetary value of the decedent” to them. The jury should have been instructed that in making this determination, it is the shorter expectancy of life that is to be taken into consideration and that if the life expectancies of the parents were determined to be shorter than that of the son, the benefits to be considered would be those only which might reasonably be expected to accrue during the life of the parents. Defendants’ Appeal Defendants’ first contention is addressed to the denial of their motions for directed verdict and judgment N.O.Y. They raise only the question of whether plaintiff’s evidence establishes the contributory negligence of his intestate as a matter of law. It is elementary that unless the evidence so clearly establishes the contributory negligence of plaintiff’s intestate that no other conclusion can reasonably be reached, this question must be resolved against defendants. Further, any discrepancies and contradictions in the evidence are to be resolved by the jury, and not by the court. Naylor v. Naylor, 11 N.C. App. 384, 181 S.E. 2d 222, and cases cited. The law imposed upon plaintiff’s intestate the duty to use ordinary care to protect himself from injury; the degree of care required being commensurate with the danger to be avoided. Rosser v. Smith, 260 N.C. 647, 133 S.E. 2d 499; Alford v. Washington, 244 N.C. 132, 92 S.E. 2d 788; Rice v. Lumberton, 235 N.C. 227, 69 S.E. 2d 543; Mintz v. Murphy, 235 N.C. 304, 69 S.E. 2d 849. Whether plaintiff’s intestate exercised the required degree of care under the circumstances presented here is, in our opinion, a question that was properly left to the jury. — 78 — The evidence, when considered in the light most favorable to plaintiff, strongly suggests that it was only brief moments before the fatal movement of the cable that the boom of the crane was extended to a point higher than the power lines. For almost two hours previously the boom had been successfully operated underneath the wires where there was no danger that it could move the cable, or permit it to be moved, into contact with the lines. Indeed, this particular crane had been substituted for the one first brought to the site so that it could be operated in this manner. The evidence certainly does not compel the conclusion that plaintiff’s intestate knew, or in the exercise of reasonable care should have known, that the operator of the crane would suddenly and without notice extend the height of the boom above the wires so as to increase substantially the danger involved. Absent notice to the contrary, a person may assume, and act upon the assumption, that every other person will perform his duty and obey the law and that he will not be exposed to danger which can come to him from the violation of duty by such other person. Weavil v. Myers, 243 N.C. 386, 90 S.E. 2d 733. Moreover, it is manifest from the evidence that plaintiff’s intestate could not watch the boom every instant and still accomplish his task of hooking the end of the cable into the pipe. The individual defendant testified that attention and care were required in inserting the 20-pound finger into a pipe; otherwise, the pipe could sustain damage by chipping or something of that nature. “One engaged in work which can be done safely, and whose assignment prevents him from maintaining a lookout, may not be held contributorily negligent, as a matter of law, when he proceeds with his duties on the assumption that another worker will perform his own assignment in a reasonably careful manner and thus not increase the danger.” Lewis v. Barnhill, 267 N.C. 457, 464, 148 S.E. 2d 536, 542. Lewis v. Barnhill, supra, presented facts strikingly similar to those involved in this case. The plaintiff sustained an electric shock when a steel joist being hoisted by a crane came in contact with an electric wire. Plaintiff’s job was to place one end of the joist on a center beam. In holding that the evidence did not establish plaintiff’s contributory negligence as a matter of law, the Supreme Court emphasized that plaintiff’s assignment required that his attention be concentrated upon — 79 — his end of the joist; and further, that with reasonable care the defendant crane operator could have brought the joist to plaintiff at a lower level “and thus have avoided any contact with the power line.” Similar conclusions can reasonably be drawn from the evidence in this case. Defendants strenuously argue that their motions should have been allowed because plaintiff offered in evidence the deposition of the individual defendant and that testimony in the deposition tended to show that plaintiff’s intestate pulled the cable into the power line after the boom had stopped so as to leave the cable still 12 to 18 inches away from the line. Where a person sees an electric wire and knows it is or may be highly dangerous, it is his duty to avoid contact with it. Alford v. Washington, supra. Defendants cite several cases which hold that a person working with or in close proximity to electric wires, which he knows to be dangerous, is negligent as a matter of law if his conduct results in contact being made with the wires. A similar result might be appropriate in this case if plaintiff’s evidence permitted no inference contrary to the one which arises from the individual defendant’s testimony, and if the evidence also conclusively established that plaintiff’s intestate should have known that the crane’s boom had been extended to a point where contact was possible. However, the evidence here permits other inferences. Couch was explicit in stating that when he heard the buzzing noise the boom, as well as the cable, was “right straight up over the wire.” Samet testified that he saw the boom moving very close to the power lines, that there seemed to be only a slight hesitation as it got very near the power line and “then it [the boom] moved closer to the power line, the next thing I knew there was an electrical buzzing and arcing noise....” A clear inference arises from this evidence that it was the movement of the boom by Wilson, and not the movement of the cable by plaintiff’s intestate, that caused the cable to make contact with the power pines. Contradictions, conflicts and inconsistencies in the evidence, and opposing inferences arising therefrom, must be resolved in plaintiff’s favor. Bowen v. Gardner, 275 N.C. 363, 168 S.E. 2d 47. Defendants bring forward an assignment of error to the court’s charge to the jury on the issue of negligence. This — 80 — assignment of error has been reviewed and is overruled. Other assignments of error relating to the issue of damages are not discussed since that issue was set aside and must be retried. Plaintiff’s appeal — affirmed. Defendants’ appeal — no error. Judge Morris concurs. Judge VAUGHN concurs in part and dissents in part.