Dennis v. City of Albemarle

• Decision Date: 25 May 1955
• Docket Number: No. 599,599
• Citation: 87 S.E.2d 561,242 N.C. 263
• Parties: John Teeman DENNIS v. The CITY OF ALBEMARLE, Ray Snuggs, and D. A. Holbrook, Contractor.
• Court: North Carolina Supreme Court

Page 561

87 S.E.2d 561

242 N.C. 263

John Teeman DENNIS v. The CITY OF ALBEMARLE, Ray Snuggs, and D. A. Holbrook, Contractor.

No. 599

Supreme Court of North Carolina.

May 25, 1955

C. M. Llewellyn and M. B. Sherrin, Jr., Concord, for plaintiff, appellee.

R. L. Smith & Son and Henry C. Doby, Jr., Albemarle, for defendant City of Albemarle, appellant.

BOBBITT, Justice.

When the evidence is considered in the light most favorable to plaintiff, the case presented was one for submission to the jury. Hence, defendant's assignments of error, based on the denial of its motions for judgment of nonsuit, are overruled.

The facts as to the purpose and location of the power line are stated above. Plaintiff's evidence tends to show that the height of the wires, over the church road, was nine feet, nine inches.

In some states, the minimum height at which wires may be placed, or permitted to remain, above any traveled portion of a highway, is fixed by statute. Eaton v. Consumers' Power Co., 256 Mich. 549, 240 N.W. 24. In the absence of such statute, it has been held that a person maintaining an overhead wire across a public road has no legal duty to maintain it at height greater than that necessary to clear vehicles within the maximum legal height. Osborne v. Chesapeake & Potomac Telephone Co., 121 W.Va. 357, 3 S.E.2d 527. Our statute, G.S. § 20-116(c), in pertinent part, provides that 'no vehicle, unladen or with load, shall exceed a height of twelve feet, six inches, * *.' When the height of the vehicle, unladen or with load, does not exceed twelve feet, six inches, it may be lawfully operated upon any public road. The liability of one responsible for a wire stretched across a road at a height less than twelve feet, six inches, which causes injury to a motor vehicle or its occupants, rests on the general law of negligence. 60 C.J.S., Motor Vehicles, § 205, p. 550. The court properly submitted the issue of negligence under appropriate instructions of law as related to evidence.

Even so, defendant insists that the evidence discloses that plaintiff was contributorily negligent, as a matter of law. In this connection, the applicable rule, as stated often in our decisions, is that judgment of nonsuit will not be entered unless the evidence, taken in the light most favorable to plaintiff, so clearly establishes contributory negligence that no other reasonable inference or conclusion can be drawn therefrom. Horton v. Peterson, 238 N.C. 446, 78 S.E.2d 181. 'The court is not at liberty to withhold the question from the jury, simply because it is fully convinced that a certain inference should be drawn, so long as persons of fair and sound minds might possibly come to a different conclusion. ' Negligence, Shearman and Redfield, Revised Edition, sec. 129.

The general rule, applicable here, is well stated in 65 C.J.S., Negligence, § 120, p. 726, as follows: 'When a person has exercised the care and caution which an ordinarily prudent person would have exercised under the same or similar circumstances, he is not negligent merely because he temporarily forgot or was inattentive to a known danger. To forget or to be inattentive is not negligence unless it amounts to a failure to exercise ordinary care for one's safety. Regard must be had to the exigencies of the situation and the circumstances of the particular occasion. Circumstances may exist under which forgetfulness or inattention to a known danger may be consistent with the exercise of ordinary care, as where the situation requires one to give undivided attention to other matters, or is such as to produce hurry or confusion, or where conditions arise suddenly which are calculated to divert one's attention momentarily from the danger. In order to excuse forgetfulness of, or inattention to, a known danger, some fact, condition, or circumstance must exist which would divert the mind or attention of an ordinarily prudent person; mere lapse of memory is not sufficient, and, if, under the same or similar circumstances, an ordinarily prudent person would not have forgotten or have been inattentive to the danger, such conduct constitutes negligence. ' See also: 25 Am.Jur. 760, Highways, sec. 468; 40 C.J.S., Highways, § 270, p. 319.

The issue of contributory negligence was held for the jury, when plaintiff's attention was momentarily and involuntarily diverted when accosted by another person, in the following cases: City of Valparaiso v. Schwerdt, 40 Ind.App. 608, 82 N.E. 923; Gigoux v. Yamhill County, 73 Or. 212, 144 P. 437; Kenyon v. City of Mondovi, 98 Wis. 50, 73 N.W. 314; Lyon v. City of Grand Rapids, 121 Wis. 609, 99 N.W. 311.

Upon the evidence here presented, the inference is permissible that plaintiff responded involuntarily when accosted by one calling from the steeple of the church. It can hardly be said that, when plaintiff's attention was momentarily diverted by this rather unusual greeting, the only permissible inference is that he failed to act as an ordinarily prudent person would have acted under the circumstances then existing.

Difficulty in observing the wire, on account of its size, color and location; inability to gauge the height of the wire on this and prior occasions, and lack of knowledge of its height; and the momentary and involuntary diversion of attention when accosted from the church steeple: these circumstances, when considered together, are such that more than one reasonable inference may be drawn therefrom. Hence, the court properly submitted the issue of contributory negligence under appropriate instructions of law as related to the evidence.

Defendant further contends that the court, in its charge, erroneously submitted the negligence issue on a theory of liability unsupported by appropriate allegation.

Plaintiff alleged that 'the City of Albemarle and Ray Snuggs' were negligent in their construction and location of the power line. He alleged further that the wires had been torn down when struck by a truck and thereafter repaired and replaced by 'the defendants,' in the same position.

There was ample evidence to support the first of these allegations and to support the proposition that the wires remained as originally located until plaintiff's injury. The testimony of Shaver stands alone. His is the only evidence tending to show the wires were knocked down by a truck. Defendant's evidence tends to show no such incident occurred. If the wires were knocked down and replaced, there is no evidence as to who replaced the wires between 11 September, 1950, and 21 September, 1950. Yet there is ample evidence that the wires on 21 September, 1950, were in their original location.

In this situation, the court submitted plaintiff's case on two theories of liability: (1) that the power line had remained as originally constructed; and, if not, (2) th...