Essick v. City of Lexington, 672

• Decision Date: 23 May 1951
• Docket Number: No. 672,672
• Citation: 233 N.C. 600,65 S.E.2d 220
• Parties: ESSICK, v. CITY OF LEXINGTON et al.
• Court: North Carolina Supreme Court

Page 220

65 S.E.2d 220

233 N.C. 600

ESSICK, v. CITY OF LEXINGTON et al.

No. 672

Supreme Court of North Carolina.

May 23, 1951

Jones & Small, Charlotte, P. V. Critcher, Lexington, for defendants-appellants.

Smith, Sapp, Moore & Smith, Greensboro, for Dixie Furniture Co. and Travelers Ins. Co., appellants.

S. A. DeLapp and Don A Walser, Lexington, for plaintiff-appellee.

DEVIN, Justice.

The only assignment of error brought forward by the defendants City of Lexington and Lexington Utility Commission was the denial of their motion for judgment of nonsuit.

It was not controverted that the City of Lexington in its corporate capacity owned and operated electric light and power lines, and that the Utility Commission was an incorporated agency of the City charged with supervision and management thereof. The plaintiff's intestate was a carpenter in the employ of the Dixie Furniture Company and was engaged at the time of his injury in putting a metal cap on the top of the roof over an elevated tramway constructed by the Dixie Furniture Company, with the permission of the City, over a city street. The defendants had changed and relocated wires conveying 2,300 volts of electricity over this street and tramway in such way that uninsulated power wires were left only about four feet above the roof of the tramway. It was in evidence that while plaintiff's intestate was on the roof of the tramway handling strips of metal for capping one of these strips came in contact wth the electric wire overhead and plaintiff's intestate was electrocuted.

The plaintiff's evidence tending to show the improper placing of wires carrying so powerful an electric current at less than the height prescribed by the North Carolina Building Code regulations, G.S. § 143-136, et seq., above construction work then being carried on with the knowledge and permission of the defendants, and that it could reasonably have been foreseen that those engaged in this work, who were unwarned that the uninsulated wires carried a dangerously powerful current, were likely to come in contact therewith, when considered in the light most favorable for the plaintiff, was sufficient to justify the imputation of negligence proximately causing the injury and death complained of. But defendants present the view also that the evidence offered by plaintiff makes out a conclusive case of contributory negligence on the part of plaintiff's intestate, and that their motion for judgment of nonsuit should have been sustained on that ground. However, it appears that plaintiff's intestate was a carpenter presumably unfamiliar with electric wiring and electric current, and was without knowledge or warning that the wires carried so powerful a current of electricity, or that wires placed so close to work then being carried on with the knowledge of the defendants were uninsulated. Without undertaking to state the evidence at length we reach the conclusion that it does not establish as a matter of law that plaintiff's intestate was guilty of such contributory negligence as would bar recovery. The rule is that a judgment of nonsuit on this ground can be rendered only when but one reasonable inference leading to that conclusion can be drawn from the evidence. Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227; Daughtry v. Cline, 224 N.C. 381, 30 S.E. 2d 322, 154 A.L.R. 789; Barlow v. City Bus Lines, 229 N.C. 382, 49 S.E.2d 793. Nor do we think the evidence was such as to justify nonsuit on the ground that negligence on the part of the plaintiff's intestate's employer Dixie Furniture Company was either the sole proximate cause of the injury or that it insulated the negligence of the defendants.

The case was properly submitted to the jury.

On the appeal of defendants City of Lexington and Lexington Utility Commission there is

No error.

Appeal of Dixie Furniture Company and Travelers Insurance Company.

The Dixie Furniture Company and the Travelers Insurance Company, though not parties to the action, noted exception to the judgment and to the submission of the 3rd issue, and have brought their appeal to this Court.

The defendants City of Lexington and Lexington Utility Commission contend that these appellants have no standing in court, as they were not parties to the action; that the Dixie Furniture Company was dismissed as additional party defendant upon objection by plaintiff and the Dixie Furniture Company, and did not participate in the trial, and hence should not now be heard to except to the rulings of the trial judge or to issues which were submitted without objection.

This position would seem to be in accord with appropriate appellate procedure, but we will nevertheless consider the two points raised: (1) That the judge in his charge to the jury on the 1st issue submitted to the jury, in connection therewith, the question of intervening negligence on part of the Dixie Furniture Company, and that the answer to that issue should have been held determinative of the 3rd issue. This position cannot be upheld as the finding that negligence on the part of Dixie Furniture Company did not insulate and render harmless the negligence of the City of Lexington and its Utility Commission is not necessarily inconsistent with finding also that Dixie Furniture Company was negligent, and that its negligence contributed to the injury complained of.

Plaintiff's allegation of negligence on the part of the City and its Utility Commission, in substance, was that these defendants had negligently placed and continued to maintain high tension uninsulated electric wires carrying a powerful current along a city street and immediately over an elevated tramway which they knew had been planned and was being...