Harton v. Forest City Telephone Co.

• Decision Date: 22 May 1906
• Citation: 54 S.E. 299,141 N.C. 455
• Parties: HARTON v. FOREST CITY TELEPHONE CO.
• Court: North Carolina Supreme Court

54 S.E. 299

141 N.C. 455

HARTON v. FOREST CITY TELEPHONE CO.

Supreme Court of North Carolina

May 22, 1906

Appeal from Superior Court, Rutherford County; W. R. Allen, Judge.

Action by H. H. Harton, administrator of Mary Willie Harton deceased, against the Forest City Telephone Company. From a judgment granting a voluntary nonsuit, plaintiff appeals. Reversed.

Conner and Walker, JJ., dissenting.

In order to answer an issue as to defendant's negligence "yes," there must have been a negligent act, and this negligent act must have been the proximate cause of the intestate's death.

Civil action to recover damages for the negligent killing of the plaintiff's intestate. There was evidence tending to show that defendant had erected its poles along a highway in Rutherford county. The road hands had worked this particular part of the highway six or eight days prior to the injury ditching close up to a pole which was rendered insecure and liable to fall. A road hand notified a lineman of the defendant of its unsafe condition some days before the injury, but the matter was not attended to and the pole fell across the road with the lines attached, blocking the road. One Carpenter, going along the road with a wagon, in order to clear the way and enable himself to pass, with the assistance of two others, set the pole back in the hole from which it had fallen, propped it, and left it, as he thought, secure. He testified that with the pole down, vehicles could not pass; that he could not have done otherwise than put the pole back in order to clear the way; could not have pulled it to either side without breaking the wires; that he propped the pole and when he left it, thought it was more secure than before; that soon after, the plaintiff's intestate was passing along the highway and the pole fell and killed her.

Among other instructions, the plaintiff asked the following "(3) If you should find that the defendant was negligent in leaving the pole standing in an unsafe and dangerous condition, it cannot excuse itself by showing that the pole had already fallen, and was replaced by a third person a short time before the fall which injured the plaintiff's intestate, unless you should find that the falling of the pole and its replacement was an unnatural occurrence of an event which would not ordinarily be expected and anticipated by a person of ordinary prudence in the natural and ordinary course of events. (4) If you should find from the evidence that the pole was rendered insecure and dangerous to the public by the work of the road hands six or eight days previous to the time of the alleged injury; that the pole was upon a public highway; that the defendant's lineman had notice of its insecure condition, and defendant failed to make the pole secure, which insecurity was dangerous to the public traveling said road, and the injury to the intestate occurred as alleged, then the defendant cannot excuse itself by showing that the pole fell across said road, and was placed back in its former position by a traveler in such way as to render it liable to fall again, unless you find that the injury came about in a manner or from causes which defendant might not have reasonably foreseen." "(7) If you find that the pole fell as alleged and did the injury, then the fact that it had previously fallen and had been erected by Mr. Carpenter as he testified, cannot avail the defendant as an excuse for its negligence, unless you find that the action of Carpenter in re-erecting the pole was not connected with and was not the result of the first fall of said pole."

The court declined to give either of the instructions, and intimated that he would charge the jury as follows: "If you find from the evidence that the road hands left the pole insecure and in such condition that it could be reasonably foreseen that it would fall in the road, and that it was left in this condition such a length of time that the defendant, by the exercise of ordinary care, could have discovered its condition, or was notified of it a sufficient length of time to enable it to repair, this would constitute negligence on the part of the defendant; but negligence alone does not entitle the plaintiff to recover. There must be negligence, and this negligence must be the real or proximate cause of the injury; if after the negligence of the defendant, there is another cause over which it has no control, which intervenes and is the real cause of the injury, then the negligence of the defendant would not be proximate. If you find from the evidence that the defendant was negligent, and that as a result of this negligence the pole fell in the road, and if you further find from the evidence that one Carpenter, admitted not to be an agent of the company, raised the pole from the ground and placed it in the hole where it had formerly been, and that thereafter the pole fell and injured plaintiff's intestate, and that the act of Carpenter was the real cause of the injury to intestate, then the negligence of the defendant would not be the proximate cause of the injury, and you would answer the first issue 'No.' This is predicated upon the admission of plaintiff that after Carpenter replaced pole sufficient time did not elapse for the defendant to discover that it had been replaced." Upon the refusal of his honor to give the instructions as requested, and upon the intimation as to his charge intended, the plaintiff submitted to a nonsuit and appealed.

Justice & Pless, for appellant.

McBrayer & McBrayer and Justice & McRorie, for appellee.

HOKE J.

In the charge as proposed the judge below correctly defined the negligent act alleged against defendant, and properly stated that, in order to answer the issue as to defendant's negligence "Yes," there must have been a negligent act and this negligent act must have been the proximate cause of the intestate's death. In the last part of the charge, however, we think there was error to the prejudice of plaintiff which entitles him to a new trial. The portion of the charge referred to is as follows: "If you find from the evidence that the defendant was negligent and that as a result of this negligence the pole fell in the road, and if you further find from the evidence that one Carpenter, admitted not to be an agent of the company, raised the pole from the ground, and placed it in the hole where it had formerly been, and that thereafter the pole fell and injured plaintiff's intestate, and that the act of Carpenter was the real cause of the injury to intestate, then the negligence of the defendant could not be the proximate cause of the injury, and you would answer the first issue, 'No.' This is predicated upon the admission of plaintiff that after Carpenter replaced the pole, sufficient time did not elapse for the defendant to discover that it had been replaced."

The prayers for instruction on part of the plaintiff, while not entirely free from criticism, in that they may be construed as improperly putting the burden of proving the element of proximate cause, involved in the first issue, on the defendant, yet they substantially embody the proposition that if defendant negligently left the pole in a dangerous and threatening position so that it was likely to fall and injure persons passing along the highway, and the pole did fall across the highway, and Carpenter, traveling along said highway, in order to clear the same and make a passway, put the pole back in the position from which it had fallen and from which it later fell again and killed the intestate, and the act of Carpenter, with the resultant injury, was one which defendant might have reasonably foreseen as a consequence of his original negligence, in such case the intervening act of Carpenter would not prevent the primary negligence from being the proximate cause of the resultant injury, and the jury should answer the first issue "Yes." In rejecting this principle and proposing the last portion of the charge above quoted, his honor could, by fair interpretation, only have intended, and we have no doubt he did intend, to decide that notwithstanding the fact that defendant may have been negligent, if Carpenter put the pole back in an insecure position from which it was likely to fall and injure one on the highway, and it did so fall and cause the injury, this would so break the sequence of events from the original negligence as to prevent same from being the proximate cause of the injury, and would shield defendant from responsibility; and in this, as stated, we think there was error. Though Carpenter was guilty of negligence in replacing the pole so that it threatened injury and was likely to fall and did fall and kill the intestate, this would not necessarily avail to protect defendant. There may be more than one proximate cause of an injury, and it is well established that when a claimant is himself free from blame and a defendant sued is responsible for one such cause of injury to plaintiff, the action will be sustained though there may be other proximate causes concurring and contributing to the injury. In 21 Am. & Eng. Enc. 495, it is said: "To show that other causes concurred in producing or contributing to the result complained of is no defense to an action of negligence. There is indeed no rule better settled in this present connection than that the defendant's negligence, in order to render him liable, need not be the sole cause of plaintiff's injuries." Again on page 496 it is said: "When two efficient proximate causes contribute to an injury, if defendant's negligent act brought about one of such causes, he is liable." In Phillips v. Railroad, 127 N.Y. 657, 27 N.E. 978, it is said: "When, in an action to recover damages for injuries alleged to have been caused by defendant's...