Ellis v. Carolina Power & Light Co.

• Citation: 137 S.E. 163,193 N.C. 357
• Decision Date: 16 March 1927
• Docket Number: 100.
• Parties: ELLIS v. CAROLINA POWER & LIGHT CO.
• Court: United States State Supreme Court of North Carolina

137 S.E. 163

193 N.C. 357

ELLIS v. CAROLINA POWER & LIGHT CO.

No. 100.

Supreme Court of North Carolina

March 16, 1927

Appeal from Superior Court, Johnston County; Cranmer, Judge.

Action by J. W. Ellis, administrator of Bennie Hightower Ellis against the Carolina Power & Light Company. Judgment for plaintiff, and defendant appeals. No error.

Negligence as to 9 year old boy, electrocuted by uninsulated wire near path, held for jury.

W. L Currie and Pou & Pou, all of Raleigh, and Abell & Shepard, of Smithfield, for appellant.

Wellons & Wellons, of Smithfield, for appellee.

CLARKSON J.

This is an action for actionable negligence brought by plaintiff administrator of his son, Bennie, against defendant, for causing his son's death, he being electrocuted by coming in contact with a live wire belonging to defendant company. The issues were the usual ones in a case of this kind. All were answered in plaintiff's favor and damages awarded.

The sole question presented by the defendant's assignments of error in this appeal is whether or not his honor erred in refusing to grant defendant's motion to nonsuit at the close of plaintiff's evidence, and again at the close of all the evidence, and in refusing to grant defendant's prayer for peremptory instruction that the jury should answer the issue as to defendant's negligence "no."

On a motion to nonsuit, the evidence is to be taken in the light most favorable to plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom.

The material facts are: The state had moved its State School for the Blind from inside to the outskirts of Raleigh, near Pullen Park. The grounds, although somewhat rough and rocky, all the underbrush had been cut out. Into these grounds and grove defendant power company ran a switch line from its main line to furnish electricity to the persons and companies that had contracted to construct the buildings. The side line was put into the school grounds about 1917, when a contract was made to build three buildings; then the World War came on. In May, 1923, a gymnasium and swimming pool were being built on the school grounds, but the power line was not being used at the time and had not been used for six or eight months. The power was transmitted in the open school grounds on three poles, in the usual way. J. W. Ellis, the father of Bennie, had been living in a house on the grounds about a month and a half before the killing and was working on the farm. The switch line ran near the house plaintiff was living in and went up in the school grounds in the grove. The boy was killed near the pole between the pole the transformer was on and the main line. W. R. Hart, who was excavating for the swimming pool, caused a stump to be blown up, and a part of it came down between the two poles and cut the wires in two and they fell on the ground. This was Thursday, May 3d. After this, Mr. Hart, with some gloves on his hands, and on a horse, tied the wires back 12 or 15 feet above the ground in order to get around that pole with his teams. The wires were 30 or 40 yards from the gymnasium where the swimming pool was located. Workmen noticed the wire being down on the side of the pole in passing. On Saturday, about 10 o'clock a. m., a negro man working with other hands passing in some way got knocked down and shocked by the wire; "the negro 'staggered' around there."

The pole where the plaintiff's son was electrocuted was about 100 feet from the transformer pole. There were no weeds or undergrowth around the pole where he was killed. On Sunday, May 6th, about 9 o'clock in the morning, plaintiff's son Bennie, about 9 years of age, went to Sunday school. On his way he had to pass the death place, which was about 60 to 75 yards from his home. On his way he went along a pathway, 12 or 15 feet from the live wires hanging down on the ground and the ends 6 or 7 inches uninsulated. After Sunday school, he started back to his home. About 11 o'clock he was found lying three feet from the pole dead, with the end of the wire uninsulated in his right hand. There were two wires down, one small one and one large one; he had the larger one in his hand. The wires were hanging down from the top of the cross-arm position of the power line pole, and both of the wires were on the ground. The end of the wire, for 6 or 7 inches, was not insulated; this end the boy had in his hand. The other wire that was on the ground was attached to the end of a pin with glass on it and the wire was fastened around the glass; 6 or 7 inches of the wire was beyond the insulation. The cross-arm that had been on the transformer pole was lying on the ground at the foot of the pole. "It was rotten and the pins had fallen out. There was one pin on one of the wires and the rest of the pins had fallen out of the arm on the ground, and was lying around the arm." Something like a half hour after the boy was found electrocuted, the power was cut off. A witness testified that he "could hear the meat frying in his hand," as he lay on the ground dead with the wire in his hand. The negative evidence was that no one was ever seen to repair or inspect the line.

Was there sufficient evidence, more than a scintilla, to go to the jury? In our opinion there was. From the evidence, the place where the death occurred was on the new grounds of the State School for the Blind. These grounds had been cleared up and three buildings erected on it. Plaintiff and his family, including the boy that was killed, was living in a house on the grounds, and laborers with their teams were working on the grounds. The defendant company had not used this side line for 6 or 8 months, yet this dead end was heavily charged with electricity, by inference some 2,300 voltage, sufficient to kill. The wires so charged were lying on the ground for several days within 12 or 15 feet from the path leading to and from plaintiff's home. A negro was knocked down by the live wire on Saturday before the young boy was electrocuted on Sunday, in the presence and well known to the workmen. Lying on the ground was the glass on which was the wire heavily charged, near the pathway; this, as a matter of common knowledge, would attract a child and the natural consequence to pick it up.

Under the facts and circumstances of this case, we think there was sufficient evidence of negligence, more than a scintilla, to be submitted to the jury, and no evidence of contributory negligence.

In Graham v. Power Co., 189 N.C. at page 389, 127 S.E 433, we gave a synopsis of the decision in Haynes v. Gas Co., 114 N.C. 203, ...