Butler v. Carolina Power & Light Co.
| Decision Date | 18 September 1940 |
| Docket Number | 93. |
| Citation | 10 S.E.2d 603,218 N.C. 116 |
| Parties | BUTLER v. CAROLINA POWER & LIGHT CO. |
| Court | North Carolina Supreme Court |
This appeal is for recovery of damages for the negligent injury and death of William Butler, intestate husband of the plaintiff administratrix.
The plaintiff complained that the defendant company, a producer of electric current for power and light, operated a series of electric circuits along and over a certain street in the City of Asheville, and, in the operation and conduct of its business, maintained wires carrying currents of high voltage and great strength; that the defendant company had carried several high-tension wires from pole to pole through a tree in or near the home of plaintiff's intestate; that these wires were not properly insulated and had become interlaced with the growing limbs and foliage of a tree adjacent to the home of said intestate to such an extent that at times the wires contacted the limbs of the tree and the current of electricity was diverted from the wire containing it through the limbs and foliage.
The wrongful conduct of the defendant is set up in two ways in the complaint: (a) "That the defendant company constructed and maintained its said electric circuits along and over Grail Street and negligently allowed its conductor or wires, without being properly protected, to be and remain in contact with the limbs of a maple tree at the home of plaintiff's intestate, the said wires being high tension or primary wires carrying 4400 volts of electric current which was sufficient to cause instant death to a person coming on contact therewith". The allegations of negligence are pleaded and repeated in several similar paragraphs. (b) That the defendant company negligently constructed and maintained its high voltage primary electric current and operated the same along and over Grail Street through a thickly populated section of the city, traveled by many people, in such a way "as to constitute said wires a public or private nuisance"; and that, by reason of carelessly permitting the circuit to become grounded in the maple tree and through its limbs in contact with the residence of plaintiff's intestate, the company had created and maintained "a veritable death trap and nuisance, which was the source of great potential danger to life and property"; but that the defendant "gave its assurance that the condition in and around said tree entailed no danger".
It is further alleged that on May 3, 1938, plaintiff's intestate, in attempting to remove the nuisance created by the limbs of the said maple tree, which were growing and rubbing against the house, climbed up the tree, sawed off many of the offending limbs on the side of the tree next the house; that he was unaware of the presence of the "subtle and invisible deadly energy of 4400 volts of primary electrical current" which said defendant had negligently, carelessly, and without any warning, permitted to remain against the limbs of said tree, with the result that plaintiff's intestate came in contact with the said current and was instantly "electrocuted and killed".
The defendant denied the principal allegations of the complaint and pleaded contributory negligence.
The evidence of the plaintiff disclosed the death of William Butler after he had climbed the tree through which the wires passed, and had been there some time, first in the morning and again in the afternoon, sawing off and removing limbs from the tree on the side next the house.
One witness for the plaintiff testified that she saw William in the tree This witness stated that Butler occupied a front room of her house near the tree, and had gotten permission from her to climb the tree and cut the limbs. She described the condition in the tree as a nuisance.
One witness for the plaintiff described the burned condition of the body. Another witness for the plaintiff described the operation of Butler in the tree and the manner of his death. She saw him standing in the forks of the maple tree and stated that he had been cutting off the limb that was rubbing against the house. She did not see him as he fell, but did see him as a flash of electricity came down the wire and caught him.
There was further expert evidence on the part of the plaintiff with regard to the manner in which the wires were strung through the trees, in non-compliance with the setup required in certain codes and ordinances of the City of Asheville, and with safety provisions provided by the National Board of Fire Underwriters, and departure of the methods used from those demanded by considerations of safety and good practice.
The defendant introduced evidence relating to the circumstances attending the electrocution of the plaintiff's intestate while attempting to abate the so-called nuisance.
Eva Lewis testified, amongst other things, that she was sitting in a position where she could see the tree and Bill (Butler) sitting in it. She said that he had a hatchet in his hand and she "hollered" to him, advising him that it was getting dark and that he had better come down. He said "I will in a few minutes". She called to Adolphus Clownie, who was on the other side, to get his grandchild from under those wires as she noticed them shaking terribly; that it was about five minutes before the flash occurred. Butler hollered to the child: "Get out from under those wires before you get killed". Witness ran down the street, got the child and brought him up on her porch. As she reached the porch she heard a noise and looked back and saw Butler "all inflamed."
Nathaniel McHaffey, witness for the defendant, testified that he saw William Butler up in the tree cutting a limb and about that time saw a spark of electricity. The witness hollered to Butler and told him that he had better come down, "that he wasn't a electricity man". *** "Just then a spark of electricity came. He blew at it with his breath. It went out.
He hollered back, 'Who said I wasn't a electricity man?'." This witness testified that Ray Lyles also hollered at Butler. Shortly after there were flames all around his elbow and shoulder, and he fell out of the tree.
Ray Lyles testified that McHaffey hollered up in the tree and told Butler he had better come down. ...
To continue reading
Request your trial