Godfrey v. Western Carolina Power Co.

• Decision Date: 24 June 1925
• Docket Number: 529.
• Citation: 128 S.E. 485,190 N.C. 24
• Parties: GODFREY v. WESTERN CAROLINA POWER CO. ET AL.
• Court: North Carolina Supreme Court

128 S.E. 485

190 N.C. 24

GODFREY v. WESTERN CAROLINA POWER CO. ET AL.

No. 529.

Supreme Court of North Carolina

June 24, 1925

Appeal from Superior Court; McDowell County; Finley, Judge.

Action by C. W. Godfrey against the Western Carolina Power Company and another. Judgment for plaintiff, and defendants appeal. No error.

Nonsuit can be sustained only when evidence is insufficient in law to warrant a verdict for plaintiff.

Questions and answers of Dr. Rankin were as follows:

"Q. If the jury shall find from the evidence that the body of water known as Lake James is situated in McDowell and Burke counties, in the foothills and on the southeasterly slope of the Blue Ridge Mountain Range, at an altitude of approximately 1,200 feet above sea level; that the superficial area of said lake is between 6,000 and 8,000 acres; that the shore line of said lake is upwards of 100 miles in length; that in the upper reaches of said lake the waters were in the summer season generally ponded over the nearly level bottom lands, which bottom lands were generally covered with vegetation, grass, weeds, vines bushes, and second-growth timber, such vegetation varying in height above the water from a few inches to 12 or 15 feet, said waters extending in shallows gradually diminishing in depth in the vegetation described, and said shallow waters being extensively shaded by such vegetation and that the like condition of the water, the vegetation and the shading extended up the tributary streams into sheltered coves, where the surface of the waters was little affected by winds, and that such were the generally prevailing conditions around the outer edges of the water in said lake during the summer seasons of 1919, 1920, and 1921; that the flow of the water below the dams on Catawba river and Paddy's creek was shut off in the summer of 1919, and that since that time pools of water have stood in the former channels of said streams, said pools being almost entirely still water fed, by seepage and surface waters; that in said former channels and the margins of said pools, cat-tails and other swampy growths have sprung up; and that, because of the conditions stated, said shallows and shaded waters about the margins of said lake and said pools and former channels of said streams have been rendered physically suitable for the extensive breeding of Anopheles mosquitoes--what, in your opinion as an expert, would be the natural and probable consequences of the existence of such conditions in respect to the health of the community, especially with reference to malarial diseases? A. Such conditions would serve as a potential breeding place for the kind of mosquitoes that are capable of transmitting malaria, and would result in the propagation of malaria in the immediate vicinity of such conditions, provided the mosquitoes bred in such water had access to persons infected with malaria."

"Q. If the jury shall find from the evidence that the conditions described in the last question exist in the immediate neighborhood of this body of impounded waters, and that these conditions have existed there during at least the summer seasons of 1919, 1920, and 1921, and if the jury shall further find from the evidence that, before the creation of these conditions, that is to say, before these waters were impounded, this particular region was almost entirely exempt and immune from malarial disease, so that only occasional and sporadic cases occurred in that region, and if the jury shall further find from the evidence that, immediately following the creation of these conditions and continuously since they were created, and all of the while they have existed, there has been an enormous prevalence of malaria in this particular region, whereby largely more than half of the people living within a distance of 2 or 3 miles of the margins of this body of water have been sufferers from chills and fevers, what, in your opinion as an expert, was the responsibility or degree of responsibility, if any, of the said conditions for the condition of the health of the community as described, I mean the prevalence of malaria? A. There are two necessary factors in the causation of malaria: One is the presence of certain numbers of malaria-bearing mosquitoes, or Anopheles; and the other is the presence of a certain number of persons infected with malaria. Which one of the two factors is most responsible for the outbreak of malaria, and the proportion of responsibility between these two factors for the occurrence of malaria, I am unable to say. But I think there is no question that the combination of the two factors, incidental to the establishment of the ponded water near Bridgewater, has brought about an increased prevalence of malaria."

The action was brought for the recovery of damages for injury to the plaintiff's health, alleged to have been caused by the negligence of the defendants. The theory upon which the action is prosecuted will appear from the following summary of the plaintiff's allegations:

The Southern Power Company, a foreign corporation, is engaged in the business of producing, distributing, and selling bydroelectric power in North Carolina and other states, and the Western Carolina Power Company was created and organized as a subsidiary domestic corporation for the purpose of developing and improving the water power on Catawba river, Paddy's creek, and Linville river, in Burke county of impounding a reserve supply of water for initial or primary use in the production of such hydroelectric power of regulating the flow of the water and of supplying to the water power plants of the Southern Power Company an increased flow during periods of drought and low water. A few years ago the defendants erected three dams, approximately 125 feet in height, across Catawba river, Paddy's creek, and Linville river, thereby impounding the water, which is connected by canals across the intervening water divides so as to make one continuous body. The power station is located at the dam on Linville river. The surface area of the artificial lake thus created exceeds 10,000 acres, and the shore line when the lake is full exceeds 100 miles; but, when the stored water is drawn upon in seasons of drought, both the area and the shore line are largely reduced. The lake is intersected by a number of small streams and ravines, varying in width and extending back into the hills and mountains; and in the upper reaches of the lake the water is very shallow, vast areas being only a few inches in depth. The shallow waters tend more and more to be obstructed and to become stagnant through the incessant growth of vegetation, and in the small streams and ravines connecting with the lake are depressions or sags which are flooded in seasons of high water and left stagnant when the water is low. The defendants have diverted the flow of Catawba river and Paddy's creek into the dam on Linville river, where the water is released into the channel of Linville river, and in this way have left numerous ponds and pools of stagnant water in the unused channels below the dams.

This whole region was free from malarial diseases before the dams were erected, and it was the duty of the defendants in constructing the dams and ponding the water so to prepare the area to be flooded that malarious conditions would not result, to destroy all timber growth, underbrush, and other vegetable growth upon the areas to be flooded, and to keep said areas free from such growth, and to install and maintain an adequate system of drainage. The defendants negligently failed to perform their duty in these respects; negligently failed to remove the timber growth, underbrush, and other vegetable growth on the area covered by the lake; negligently failed to provide for the drainage of said area and the channels of said streams; negligently left within the area of the lake large quantities of timber growth, through the accumulation of which, in the shallow waters the free circulation of the water in the upper reaches of the lake is obstructed and prevented; negligently allowed stagnant water and great quantities of vegetable matter to remain there by reason whereof the shallow waters were shaded and corrupted and the vegetable matter left to decay. By reason of such neglect of duty, an unwholesome, unhealthy, and malarious condition was set up in all the upper reaches of the lake and in the adjacent country; malaria-bearing mosquitoes are propagated in all the margins of the lake and in the ponds and pools along the channels of said streams; chills and fever and other malarial sickness became epidemic; and the entire region, noted for its healthfulness before the construction of the dams, was thereby made unhealthy and subjected to malarial infection and disease. By reason of the defendants' negligence, the plaintiff has been infected with malaria, and so run down in health that he is unable to do manual labor, has suffered loss of time, incurred expense, and greatly suffered in mind and body. The plaintiff's wife and children have also suffered in like manner from the same cause.

The defendants filed an answer denying all the material allegations of the complaint, and set up an alleged estoppel against the plaintiff, arising out of the terms of a lease, to which reference is made in the opinion.

The issues were answered as follows:

"(1) Was the plaintiff injured by the negligent conduct of the defendants, as alleged in the complaint? Answer: Yes.

(2) What damages, if any, is the plaintiff entitled to recover? Answer: $4,000.

(3) If the plaintiff was injured as alleged in the complaint, is he estopped from bringing this action by reason of the stipulations contained in the lease offered by the defendants? Answer: No."

Judgment for the...