Benton v. North Carolina Public Service Co.
| Decision Date | 15 April 1914 |
| Citation | 81 S.E. 448,165 N.C. 354 |
| Parties | BENTON v. NORTH CAROLINA PUBLIC SERVICE CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; Henry P. Lane, Judge.
Action by J. N. Benton, as administrator of William B. Benton deceased, against the North Carolina Public Service Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Where the cause of decedent's death by contact with one of defendant's high-tension uninsulated wires was not disputed and defendant's negligence was not in doubt, the doctrine res ipsa loquitur did not apply.
These issues were submitted:
J. I Scales, of Greensboro, for appellant.
John A. Barringer, of Greensboro, for appellee.
All the evidence in this case was introduced by the plaintiff, and none by the defendant. The two exceptions to the evidence are without merit, and need not be discussed. Without considering seriatim the several exceptions to the charge of the court, the merits of the appeal and the only point presented by it may be considered under the motion to nonsuit.
The evidence tends to prove that the plaintiff's son, 12 years old, and not well grown for his age, was killed on June 22, 1909, by coming in contact with an uninsulated highpower wire of the defendant, carrying some 2,300 volts of electricity. The boy was attending a Sunday school party on Eugene street, one of the main thoroughfares of the city of Greensboro, with some other boys, and, when they got through with the entertainment in the house, went out on the street and were standing around on the sidewalk under and near to the tree in which the intestate of the plaintiff was killed. Two other boys besides the intestate of the plaintiff climbed up the tree, and three or four more were standing around the tree on the sidewalk. The intestate of the plaintiff came in contact with the wires in the tree, one of them burning his hand and the other his left leg as if a hot iron had been run across the flesh. The other boys in the tree were not injured. The wires were exposed from 1 1/2 to 2 feet in the trees, and were about 20 feet above the ground. The insulation was rubbed off by the limbs coming in contact with the wires and rubbing against them. The tree was between 30 and 40 feet in height, and the limbs came within 7 feet of the ground, making it an easy tree to climb.
The evidence also tended to prove that Eugene street is a thickly settled and populous street, and that the defendant's wires along this street were in very bad condition as to insulation, especially where they passed through the trees, and that, at night especially, the wires in this and the other trees near by could be seen "sparking." The evidence is that this condition existed from 1907 up to this occurrence. The city inspector also called the defendant's attention to the condition of its wires on Eugene street two or three times some time previous to June, 1909, but the wires were not repaired.
We do not think it necessary to appeal to the doctrine of res ipsa loquitur to sustain the verdict in this case. It has no application, since the cause of the death is not disputed, and the negligence of the defendant in respect to the condition of its wires not at all in doubt.
The only question here...
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