Haynes v. Raleigh Gas Co

Citation114 N.C. 203,19 S.E. 344
CourtUnited States State Supreme Court of North Carolina
Decision Date10 April 1894
PartiesHAYNES v. RALEIGH GAS CO.

Death by Wrongful Act — Wires Hanging from Electric Light Pole — Negligence — Prima Facie Case — Burden of Proof — Contributory Negligence.

1. Evidence that defendant electric light company had its line constructed along a street; that a guy wire from one of its poles stretched across the sidewalk, and, charged with electricity from another guy wire crossing the feed wire of a street railway company, had become detached from a tree to which it had been fastened, and was hanging to the ground; and that plaintiff's son was killed by coming in contact with it while walking along the sidewalk, — makes a prima facie case, and puts on defendant the burden of snowing that it was not negligent.

2. It is not contributory negligence for an intelligent boy, 10 years old, while walking along a sidewalk, to grasp a guy wire from an electric light pole which was hanging to the ground, there being nothing to indicate that it was charged with electricity.

3. Electric light companies having their lines along a street are charged with the highest degree of care in the construction, inspection, and repair of their wires and poles, that travelers along the street may not be injured thereby.

Appeal from superior court, Wake county; George A. Shuford, Judge.

Action by Z. W. Haynes, administrator of John W. Haynes, deceased, against the Raleigh Gas Company for the death of deceased. Judgment for defendant Plaintiff appeals. Reversed.

Battle & Mordecai, W. N. Jones, and Strong & Son, for appellant

Busbee & Busbee, Armistead Jones, and R. O. Burton, for appellee.

BURWELL, J. John W. Haynes, the intestate of the plaintiff, was about 10 years of age. He was "ft very healthy, intelligent, moral, and industrious boy, well educated for his age." On the morning of November 15, 1S92, he assisted his older brother, who was a carrier for a newspaper, and when returning home, about 7 o'clock, he took hold of a wire on or near the sidewalk over which he was passing, and was killed by an electric current. The place where this occurred was on North street not far from its intersection of Blount street, in the city of Raleigh. The cause of his death is admitted, and also the fact that the deadly current came from the "feed wire" of the street, railway company, whose line was constructed along Blount street, as were also the electric light wires of the defendant. One of the defendant's poles stood on Blount street, and was supported by three guy wires, —one attached to a tree on Blount street, and the other two to trees on North street. The first of these guy wires (the one that was attached to the tree on Blount street) crossed and was in contact with the feed wire of the railway company. The longer one of the other two had become detached from the tree on North street, andwas hanging to the ground. The current passed along these two guy wires, and killed the boy as soon as he grasped the one that had fallen on or near the sidewalk. These facts were testified to by the plaintiff's witnesses, and seem not to have been controverted.

Among the special instructions asked by plaintiff was the following: "Upon the evidence of the plaintiff, if believed, there Is a presumption of negligence upon the part of the defendant, and in that case the burden is upon the defendant to show that there was no negligence on its part." His honor refused so to instruct the jury, and the plaintiff excepted Pretermitting for the present the consideration of the question whether the boy was guilty of contributory negligence in taking hold of the wire, we are brought by this exception to the inquiry, does the expression "res ipsa loquitur" apply to the state of facts set out above, and do those facts make out a prima facie case of negligence against the defendant, and cast upon it the burden of showing that it was not negligent? Argument and authority are not needed to show that those who use the streets of a city, by permission of those who have power to grant such privilege, for purposes of private gain, owe to persons upon such streets the duty of so conducting their business as not to injure them. To speak particularly of the matter now under consideration, the defendant company, using the streets of the city of Raleigh for its purposes, as it was allowed to do, owed to the deceased the duty of keeping out of his way, as he went about his business and to his home, all its wires, and especially the duty of preventing his exposure to contact with any wire placed in the streets by it that carried a current of electricity. It was the duty of the defendant to keep the highway along which it put its poles and wires substantially in the same condition as to convenience and safety as they were in before it constructed its lines along the streets. Negligence has been said to be a failure of duty. Proof that there was a ''live" wire (carrying a deadly current) down in the highway surely raised a presumption that some one had failed in his duty to the public. When to this was added proof that this death-carrying wire was put above the street by the defendant, and was its property, and under the management and control of its servants, and that by contact with that wire tbe deceased, having a right to be on the street, was killed, a complete prima facie case of negligence was made out, and the burden was cast upon the defendant to show that this live wire was in the street through no fault of its servants and agents. In Ay-cock v. Railroad, 80 N. C. 329, where a plaintiff sought to recover damages for the burning of his property, fire having been communicated to it by sparks from an engine on the defendant's road, Chief Justice Smith discussing "the question as to the party upon whom rests the burden of proof of the presence or absence of negligence, where only the injury is shown, in case of fire from emitted sparks, " declares that this court will "abide by the rule so long understood and acted on in this state, not alone because of its intrinsic merit, but because it is so much easier for those who do the damage...

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