Hicks v. Western Union Telegraph Co.
| Decision Date | 23 December 1911 |
| Citation | 73 S.E. 139,157 N.C. 519 |
| Parties | HICKS v. WESTERN UNION TELEGRAPH CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, McDowell County; Long, Judge.
Action by Thomas M. Hicks, as administrator, etc., against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Where defendant telegraph company was stringing wires over those of a light and power company, and decedent, a ground man, on being ordered by his foreman to take up one of the wires which was being fastened on the pole, received an electric shock from which he died, the happening of the accident raises a presumption, in the absence of explanation, of want of ordinary care on defendant's part, under the rule that where a thing causing injury is shown to be under defendant's management, and the accident is such that in the ordinary course of things does not happen, if proper care is used, it affords reasonable evidence, in the absence of explanation, that the accident arose from want of care.
This action was brought to recover damages for the death of plaintiff's intestate, which is alleged to have been caused by the negligence of the defendant. The intestate was employed by the defendant telegraph company, as a groundman or assistant lineman, and on the day he was killed was at work for the defendant in a squad of men, who were engaged in stringing wires in the town of Marion, along the right of way of the Southern Railway Company; the defendant being represented there, at the time, by W. K. McClaren, its general superintendent, and R. R. Robinson, foreman of the construction gang, of which plaintiff's intestate was a member. The said railway passes under a bridge which is a part of the main street of said town. The street runs north and south and the railway east and west. The Marion Light & Power Company, which was engaged in furnishing power and light for the citizens of the town, had strung its wires on poles over the wires of the telegraph company, along the street and across the bridge and at right angles to the wires of the said company. The wires of the power company carried about 2,300 volts of electricity, and they were in plain view of everybody in the vicinity. On the day in question McClaren and Robinson, with certain employés of the company were engaged in stringing wires above those of the power company; Robinson being in charge of a portion of the squad. He was stationed on the bridge, where he gave directions to the men under him as to how to place the wires, which were in immediate proximity to the power company wires. McClaren was below, to the east of the bridge, under the cut, and not in sight of Robinson. McClaren had a part of the squad with him and under his direction, among whom was plaintiff's intestate. McClaren ordered the intestate to take hold of one of the wires with his naked hand, which intestate did in obedience to the order. He had hold of the wire but a very short time, when it was allowed to sag and drop upon the wires of the power company, and thereby the current in those wires was transferred to the wire held by the plaintiff's intestate, and he was killed by the deadly fluid. There was no request made to the power company to cut off this current while the work of changing the wires was going on, nor any guard wires put up for the purpose of preventing an accident, or any other protection taken to prevent the wire which was being changed from falling on the heavily charged wires of the power company.
The defendant mainly relied upon the fact that the death of the plaintiff's intestate was caused by the negligent act of Ashurst, who was a fellow servant, though it was contended also that there was no evidence of negligence on the part of defendant company.
The court explained the evidence to the jury and stated the contentions of the parties, and, among others, the following instruction was given to the jury: "If you find from the evidence that the telegraph company employed the young man Hicks to work along its telegraph line under the circumstances testified to by the witnesses, it owed him the duty to exercise reasonable and ordinary care, such care as a person of prudence would ordinarily employ with regard to his own business, to prevent any personal injury to the person transacting such work as was agreed upon between the plaintiff and defendant, and the duty devolved on young Hicks to use ordinary prudence to avoid danger in connection with any labor which he agreed to perform." The court then at the request of the defendant telegraph company, gave the following instructions: "(1) The burden is upon the plaintiff to prove by a preponderance or greater weight of the evidence that the defendant, the Western Union Telegraph Company, was negligent, and that such negligence was the proximate cause of the death of the plaintiff's intestate, and if the plaintiff has failed so to prove, or if upon the whole evidence the minds of the jurors are evenly balanced as to whether or not the telegraph company was negligent; or as to whether or not such negligence was the proximate cause of the death of the plaintiff's intestate, then the jury should answer the first issue 'No.' (2) That the defendant, the Western Union Telegraph Company, would not be liable for any negligence on the part of one of its employés who was a fellow servant of the plaintiff's intestate, and if the jury shall find from the evidence that the death of the plaintiff's intestate was caused by the negligence of his coemployé, Ashurst, this would not be negligence upon the part of the Western Union Telegraph Company, and the jury should answer the first issue, 'No.' (3) If the jury shall find the facts to be as testified to by the witnesses introduced by the Western Union Telegraph Company, the telegraph company was not guilty of negligence, and the jury should answer the first issue, 'No.' *** (7) Upon the whole evidence, if believed, the plaintiff's intestate, Willard Y. Hicks, and the employé, Ashurst, were fellow servants, and if the jury shall find from the evidence that the plaintiff's intestate was killed by reason of Ashurst's negligence in permitting the telegraph company's wire to come in contact with the wire of the Marion Light & Power Company, this would not constitute negligence upon the part of the telegraph company, and the jury should answer the first issue, 'No.' (8) If the jury shall find from the evidence that Ashurst was instructed to throw the rope over the Light & Power Company's wire preparatory to stringing another wire, and in disregard or in disobedience of such instruction he attached the rope to the wire which was being taken down, and pulled the wire so that it came in contact with the wire of the light and power company, and this act on the part of Ashurst was the proximate cause of the death of the plaintiff's intestate, the telegraph company was not negligent, and would not be liable for the negligence of Ashurst, and the jury should answer the first issue, 'No.' Given with this...
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