Carpenter v. Asheville Power & Light Co.

• Decision Date: 27 January 1926
• Docket Number: 555.
• Citation: 131 S.E. 400,191 N.C. 130
• Parties: CARPENTER v. ASHEVILLE POWER & LIGHT CO.
• Court: North Carolina Supreme Court

131 S.E. 400

191 N.C. 130

CARPENTER v. ASHEVILLE POWER & LIGHT CO.

No. 555.

Supreme Court of North Carolina

January 27, 1926

Appeal from Superior Court, Buncombe County; Stack, Judge.

Action by Walter B. Carpenter, administrator, against the Asheville Power & Light Company.From a judgment for plaintiffdefendant appeals.New trial granted.

In action for death, testimony that witness had seen letter not in evidence, offering deceased employment, held improperly admitted as being hearsay.

Civil action to recover damages for an alleged wrongful death caused by the defendant's alleged negligence in failing properly to "ground" its transformers, or secondary system, used in connection with its sale and distribution of electric current for household and commercial purposes.

Plaintiff's intestate, a young woman 30 years of age, wife and mother highly educated, peculiarly gifted in music, and of good health, was killed on November 7, 1923, in the kitchen of her home, while discharging some household duty, by coming in contact with an excessive electric current flowing over the wires of the defendant, and which were connected with plaintiff's home under a contract to supply his house with electricity for domestic purposes.

The defendant, in the operation of its business, maintains two sets of wires--one, comprising its primary system, running from its power house to transformers, and carrying an electric current of 2,200 volts or more; the other, known as its secondary system, running from the transformers, where the voltage is "kicked down" to a current of 110 volts, to the homes of its customers for use in lighting and operating small motors, etc.The transformer near the plaintiff's house, it is alleged, failed to operate, or to reduce the current from the higher to the lower voltage and in consequence of which the higher voltage was transmitted over the secondary wires to plaintiff's home and caused the death of his wife.The negligence alleged consists in the failure of the defendant to have its transformers "grounded" so as to convey the deadly current to the ground, rather than over its secondary wires, in case a transformer failed to operate, or in case the primary wires came in contact with the secondary wires, as they did in the instant case.

Upon denial of liability and issues joined, the jury returned the following verdict:

"(1) Was plaintiff's intestate killed by the negligence of the defendant, as alleged in the complaint?Answer: Yes.

(2) What damages, if any, is plaintiff entitled to recover of the defendant?Answer: $35,000."

From a judgment on the verdict for plaintiff, the defendant appeals, assigning errors.

Martin, Rollins & Wright, of Asheville, for appellant.

Harkins & Van Winkle and Mark W. Brown, all of Asheville, for appellee.

STACY C.J.

The exception addressed to the refusal of the court to grant the defendant's motion for judgment as of nonsuit cannot be sustained.The evidence was sufficient to carry the case to the jury.The motion was properly overruled on authority of McAllister v. Pryor,187 N.C. 832, 123 S.E. 92, 34 A. L. R. 25, where the question is fully discussed in a valuable opinion by Associate Justice Clarkson.

But we think the trial court committed error, prejudicial to the defendant, in the admission, over objection, of the evidence of Dr Ambler, father of plaintiff's intestate, to the effect that he had seen a letter from a Mr. Harker, written to his daughter prior to her marriage, and 7 or 8 years before her death, offering her $2,400 a year to sing in Richmond, Va., with the promise that her salary would be increased to $3,000 per annum at the end of the first year.The offer was not accepted, and the letter was not in evidence.In fact, plaintiff's intestate never sang for money at any time.This testimony was incompetent and should have been excluded.As said in Chandler v. Marshall,189 N.C. 301, 126 S.E. 742:

"This is not the kind of evidence to be sanctioned by our courts of justice, for the determination of the rights of litigants."

In addition to violating the rule against hearsay, it contains evidence of an unaccepted offer, the reception of which is very generally disapproved by the authorities on the subject.Canton v. Harris,177 N.C. 10, 97 S.E. 748, and cases there cited.

Nor can we hold the admission of this evidence to be harmless error as suggested by plaintiff, for, in delivering his charge to the jury, the judge...