Harrington v. Commissioners of Town of Wadesboro

• Citation: 69 S.E. 399,153 N.C. 437
• Parties: HARRINGTON v. COMMISSIONERS OF TOWN OF WADESBORO.
• Decision Date: 17 November 1910
• Court: United States State Supreme Court of North Carolina

69 S.E. 399

153 N.C. 437

HARRINGTON v. COMMISSIONERS OF TOWN OF WADESBORO.

Supreme Court of North Carolina

November 17, 1910

Appeal from Superior Court, Anson County; Lyon, Judge.

Action by Lucretia Harrington against the Commissioners of Wadesboro to recover damages for the alleged negligent killing of her intestate by coming in contact with defendant's electric wires alleged to have been negligently maintained. Verdict for plaintiff and defendant appeals. Affirmed.

Under the rule allowing attorneys to argue the whole case to the jury both on the law and facts, they may state the facts of another case to apply the law of such case to the one in hand.

F. J Coxe, J. A. Lockhart, McLendon & Thomas, W. E. Brock, and J T. Bennett, for appellant.

Robinson & Caudle, for appellee.

HOKE J.

On careful consideration of the record and the exceptions noted we find no reversible error to defendant's prejudice. The evidence showed: "That on July 4, 1908, the Bratton Amusement Company was conducting a moving picture show under a tent erected on an open and vacant lot in the town, being an exposed and public place, and the defendant under a contract with the company had installed the wires, and was supplying the electricity for carrying on the enterprise. That the wire conducting the electricity to the tent passed over a path on which numbers of persons were accustomed to move, and had been negligently placed or allowed to sag, so that persons going along the path could easily reach it, some of the witnesses saying it was so low that one would have to bend his body to pass under it and just at this point the wire was uninsulated for a space of a foot or more. That the intestate, an inexperienced boy of 17 years of age, living with his mother and doing work on the farm, in passing along the path, caught hold of the wire and received a shock that killed him." One witness who saw it, speaking of the occurrence, said: "We saw him raise up the wire as if to go under. The wire was down about where it would strike his forehead if he hadn't raised it up, and he put up his hands and raised up the wire, and he fell down against the engine, got up on his knees, and fell down again. The fellow that was with him asked him if the wires did that to him, and he never spoke a word. He just lay still there on the ground. Q. Were the wires naked where he put his hands on it? A. Yes, sir. Q. About how much of it was bare? A. About a foot. Q. Where was the wire, with reference to the path? A. The wire was right over the path." The town, having engaged in a business enterprise supplying electricity for a profit, cannot avail itself of the position that it was at the time in the exercise of governmental power conferred for the public benefit. Speaking to this question in Fisher v. New Bern, 140 N.C. 510, 53 S.E. 344, Connor, Judge, delivering the opinion, said: "Where they (cities and towns) have both governmental and business corporate powers conferred, their liability to suit for the torts of their servants or agents depends upon the sphere of activity in which the wrong complained of is committed. In so far as municipal corporations are engaged in the discharge of the powers and duties imposed upon them by the Legislature as public agencies of the state, they are not liable for breach of duty on the part of their officers. In that respect the officers are agents of the state, although selected by the municipality. When acting in their ministerial or corporate character in the management of property used for their own benefit and profit discharging powers and duties voluntarily assumed for their own advantage, they are liable to an action to persons injured by the negligence of their servants, agents, and officers." And it is well established that persons, corporate or individual, engaged in operating one of these electric plants and supplying power from them are held to a very high degree of care, and it is held, further, that, when an untrained and inexperienced boy takes hold of one of these live wires improperly placed or negligently exposed, such act of itself does not ordinarily afford evidence of contributory negligence. Haynes v. Gas Company, 114 N.C. 204, 19 S.E. 344, 26 L. R. A. 810, 41 Am. St. Rep. 786.

It was chiefly urged for error that the record did not disclose that the summons had been introduced in evidence and the court having held in Gulledge v. Railroad, 148 N.C. 567 62 S.E. 732, and numerous other cases that the requirement of the statute that action of this character should be brought within one year...