Barnes v. Phoenix Utility Co.
| Decision Date | 04 November 1925 |
| Docket Number | 111. |
| Citation | 130 S.E. 1,190 N.C. 382 |
| Parties | BARNES ET AL. v. PH×NIX UTILITY CO. ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Chatham County; Bond, Judge.
Action by J. K. Barnes and another, administrators of Leon H Chestnut, deceased, against the Ph nix Utility Company and another. From a judgment for plaintiffs against the named defendant, it appeals. No error.
Master's nondelegable duty to furnish servant reasonably safe place.
The plaintiffs were duly appointed and qualified as administrators of the estate of Leon H. Chestnut, and sued the defendant corporations jointly.
A nonsuit was entered at the close of plaintiffs' evidence as to the Carolina Power & Light Company; no appeal was taken; and it is not necessary to consider its defenses.
Plaintiffs allege that on the 13th day of November, 1924, and for more than a year prior thereto, the plaintiffs' intestate was employed by the defendants as a carpenter at Ph nix, Chatham county, N. C., at which place the defendants were erecting a "steam plant," to be used by the defendant the Carolina Power & Light Company, for manufacturing or generating electricity; and that on the said 13th day of November, 1924, plaintiffs' said intestate, at the directions of and instructions from one of his foremen climbed into the roof of one of the buildings some 20 feet high, and located at said plant, for the purpose of making some repair on said building, and he was directed to go out upon a small steel beam for such purpose, said beam being some 15 feet from the floor; that in the roof of said building, and over the said beam, and just where the plaintiffs' intestate was required to do the work, the defendant Carolina Power & Light Company had placed several lines of wire used for the transmission of electricity; that over such lines electricity of high voltage, which is a dangerous and life-destroying force, was transmitted, and, in order to protect the plaintiffs' intestate and furnish him a safe place in which to work, it was necessary for and was the duty of the defendants to cut off the said current so that said wires should not be charged with electricity while he was in said roof engaged in making the said repairs and performing such other duties as he had been directed to perform; that, while the plaintiffs' intestate was in said roof upon said steel beam, as aforesaid, endeavoring to perform the duties as directed, the defendants negligently carelessly, wrongfully, and in utter disregard of its duty to plaintiffs' intestate, permitted a dangerous, excessive, and highly charged current of electricity to pass through or over said lines, and, while attempting to perform his duties incident to making some repairs, the plaintiffs' intestate unavoidably came in contact with one of the wires charged as aforesaid, and was immediately and instantaneously electrocuted, and fell to the ground dead; that the negligence of the defendants in failing to cut off said current and their failure to furnish the plaintiffs' intestate a safe place in which to work was the proximate cause of his death; that, as result of the negligence of the defendants as above alleged, the plaintiffs' intestate has been endamaged, etc.
The Ph nix Utility Company admits it is a corporation, and that Leon H. Chestnut was in its employ on November 13, 1924, but denies all the other allegations of plaintiffs' complaint. For a further defense it sets up: (1) That it has no knowledge or information to form a belief as to what caused the death of Chestnut, and denies it was caused by electrocution; that it was engaged in construction work, and owned no interest in any electric wires. (2) It sets up the plea of contributory negligence. (a) It was not necessary for plaintiffs' intestate to have gone under the shelter or near the wires described in the complaint, and if he did so, as alleged in the complaint, he did so not of necessity or on account of any order of any foreman of this defendant, but voluntarily; that the place at which the plaintiffs' intestate was required to work, and should have worked on the top of the roof, and at a distance from the said wires, was perfectly safe and free from all of the dangers which are alleged in the complaint to have caused his injury and death, and that it was the duty of the plaintiffs' intestate to have remained in said place and to have finished his work there, and the plaintiffs' intestate, in going under the shelter and coming in contact with the wires, as alleged in the complaint, if he did come in contact therewith, which the defendant denies, contributed by his own negligence to his injury and death, and his said contributory negligence was the proximate cause thereof; and this defendant pleads said contributory negligence in bar of the plaintiffs' recovery herein. (3) That plaintiffs' intestate was experienced and accustomed to work in and about wires; knew the danger; knew, or ought to have known, that the wires were charged; and should have had same cut off before working in close proximity. That he had served long in and about electrical wires; knew the dangers; and that he negligently and carelessly took hold of the wires, if he was killed by the electric current; and this negligence on his part was the proximate cause of his death. That plaintiffs' intestate well knew that the place into which he voluntarily went without any order of his superior or foreman was a dangerous and unsafe place in which to work, and, in voluntarily climbing and working in and near the wires alleged to be charged with electric current, the plaintiffs' intestate assumed the risk incident thereto, and this defendant is not chargeable therewith; and the defendant pleads said assumption of risk in bar of the plaintiffs' recovery herein.
The issues submitted to the jury, and their answers thereto were as follows:
"(1) Was the plaintiffs' intestate killed by the negligence of the defendant, the Ph nix Utility Company, as alleged in the complaint? Answer: Yes.
(2) Did the plaintiffs' intestate, Chestnut, by his own negligence, contribute to the injury resulting in his death, as alleged in the answer? Answer: No.
(3) Did the plaintiffs' intestate, Chestnut, voluntarily assume the risk of receiving the injury resulting in his death, as alleged in the answer? Answer: No.
(4) What damages, if any, are the plaintiffs entitled to recover of the defendant the Ph nix Utility Company? Answer: $6,500."
Judgment was rendered on the verdict. Many exceptions and assignments of error were made by defendant and appeal taken to the Supreme Court. The material ones, and other facts, will be considered in the opinion.
Long & Bell, of Pittsboro, for appellant.
Siler & Barber, of Pittsboro, and Murray Allen, of Raleigh, for appellees.
The real and material assignment of error by defendant: "For that the court denied the defendants' motion for judgment as of nonsuit at the close of plaintiffs' evidence." The defendant introduced no evidence.
Lindsey v. Lumber Co., 189 N.C. 119, 126 S.E. 174; Nash v. Royster, 189 N.C. 408, 127 S.E. 356; Baltimore & O. R. R. Co. v. Groeger, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419 (filed Jan. 5, 1925).
The facts: Leon H. Chestnut was a carpenter, and had been working for about two years for defendant Ph nix Utility Company. This company was constructing a steam plant for the Carolina Power Company, which was subsequently turned over to the Carolina Power & Light Company. The construction work was going on for several years. The intake building at the river is built of steel framework. There are no sides on the building. It is covered on the top; the sides come down 2 or 3 feet. The roof of the building is about 18 feet from the level of the floor to where the little weatherboarding comes and about 2 1/2 or 3 feet from the roof down to the level of the weatherboarding. The trolley wires are up under the side of the weatherboarding. Three small bare copper wires, one setting over the other 4 to 6 inches apart, and about 15 to 20 inches from the wall or side, ran from one end of the building to the other. The wires are used for the current to go to the motor that pulls the gates up. The gates are 16 to 18 feet long and 8 feet wide; they were steel frame with screens fitted in, and are used to keep trash, etc., from coming in where the water goes to the plant, and are near where the wires are in the intake building. A person could move around safely under the intake building to clinch the nail if there was no juice (electricity) in the wires. It was not a dangerous place. Chestnut had to go up between the wires and the weatherboarding to get to the nail that he was going to clinch. There was about 18 or 20 inches of space between...
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