Davis v. Carolina Power & Light Co.
Davis v. Carolina Power & Light Co.
Opinion of the Court
This case is founded on negligence. In an action for death by wrongful act based on negligence, tbe burden rests on tbe plaintiff to produce evidence sufficient to establish tbe two essential elements of actionable negligence, namely: (1) That tbe defendant was guilty of a negligent act or omission; and (2) that such act or omission was tbe proximate cause of tbe death of tbe decedent. Sowers v. Marley, 235 N.C. 607, 70 S.E. 2d 670.
It is well settled in this jurisdiction that foreseeability of injury is a requisite of proximate cause. Cox v. Freight Lines, 236 N.C. 72, 72 S.E. 2d 25; Wood v. Telephone Co., 228 N.C. 605, 46 S.E. 2d 717; Watkins v. Furnishing Co., 224 N.C. 674, 31 S.E. 2d 917; Montgomery v. Blades, 222 N.C. 463, 23 S.E. 2d 844; Butner v. Spease, 217 N.C. 82, 6 S.E. 2d 808; Beach v. Patton, 208 N.C. 134, 179 S.E. 446; Osborne v. Coal Co., 207 N.C. 545, 177 S.E. 796. This being true, we would'be compelled to affirm tbe compulsory nonsuit even if we should accept as valid tbe contention of plaintiff that tbe defendant was negligent in conveying a dangerous current of electricity across a public highway in a settled, community on uninsulated wires suspended only 17 or 18 feet above tbe surface of tbe highway. Tbe evidence at tbe trial did not disclose any
The ruling on the motion to nonsuit would have been the same had the plaintiff’s witness J. O. Winters been permitted to testify that he had never observed uninsulated wires crossing highways.
Affirmed.
Dissenting Opinion
dissenting: It is with reluctance that I dissent in this case. However, I think the plaintiff offered more than a scintilla of evidence in support of her allegations of negligence against the defendant. Tippite v. R. R., 234 N.C. 641, 68 S.E. 2d 285. Pe that as it may, the majority opinion holds that the compulsory nonsuit must be affirmed for the reason “the evidence at the trial did not disclose any facts sufficient to charge the defendant with notice that someone might throw a house-mover’s measuring tape over its transmission line.”
This Court in Helms v. Power Co., 192 N.C. 784, 136 S.E. 9, speaking through Stacy, C. J., said: “Electric companies are required to use reasonable care in the construction and maintenance of their lines and apparatus. The degree of care which will satisfy this requirement varies, of course, with the circumstances, but it must always be commensurate with the dangers involved, and where the wires maintained by a company are designed to carry a strong and powerful current of electricity, the law imposes upon the company the duty of exercising the utmost care and prudence consistent with the practical operation of its business, to avoid injury to those likely to come in contact with its wires.” Rice v. Lumberton, 235 N.C. 227, 69 S.E. 2d 543; Mintz v. Murphy, 235 N.C. 304, 69 S.E. 2d 849.
The question presented here, as I understand it, is whether the defendant in the construction of an electric transmission line, designed to carry
According to plaintiff’s evidence it is the procedure generally followed by house movers where a house is to be moved under a wire, “if the wire appears to be too low for the building to go under it, to take a tape and throw over it and let it drop to the ground. ... If the wires are too low, you call back to the company and, of course, they raise it for you, for a fee.” This witness, an experienced house mover, further testified that he had thrown a tape line identically like that used by plaintiff’s decedent over power lines and did not get hurt.
Upon the evidence adduced in the trial below, was plaintiff’s decedent charged with the duty to foresee that the defendant would construct and maintain a power line, carrying 7,200 volts of electricity, only 17 or 18 feet above and across a heavily traveled highway and neither insulate it by insulation nor by more adequate isolation ? I do not think so.
Reference
- Full Case Name
- PAULINE HICKS DAVIS, Administratrix of the Estate of CRAWFORD WHEELER DAVIS, Deceased, v. CAROLINA POWER & LIGHT COMPANY
- Cited By
- 16 cases
- Status
- Published