Lawrence v. Yadkin River Power Co.

• Citation: 130 S.E. 735,190 N.C. 664
• Decision Date: 09 December 1925
• Docket Number: 427.
• Parties: LAWRENCE v. YADKIN RIVER POWER CO.
• Court: United States State Supreme Court of North Carolina

130 S.E. 735

190 N.C. 664

LAWRENCE v. YADKIN RIVER POWER CO.

No. 427.

Supreme Court of North Carolina

December 9, 1925

Appeal from Superior Court, Moore County; Bryson, Judge.

Action by D. E. Lawrence against the Yadkin River Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Origin of fire held for jury as alleged.

Defendant owns and operates a transmission line over which electricity is transmitted, composed of a number of wires and other apparatus, extending from its plant at Blewett's Falls in Richmond county, to Raleigh, N. C.; said wires are supported by towers and other devices for the operation of said transmission line; to prevent the escape of electricity transmitted over said line by defendant, devices known as insulators are employed. This transmission line passes over and across the lands of plaintiff in Moore county. Defendant owns a right of way over said lands, having acquired same by deed prior to the purchase of said lands by plaintiff. The transmission line was constructed and passes over said right of way.

During the afternoon of July 4, 1923, a fire burned over plaintiff's land, destroying trees and vegetation thereon, and otherwise injuring the same. Plaintiff alleges that said fire began on defendant's right of way, on his land, immediately beneath tower No. 217, on which there was an insulator; that said insulator was weak and defective that during the said afternoon, defendant's transmission line became excessively charged with electricity, causing the said insulator to become very hot; that because of the heat and of its defects, the insulator, made of iron, porcelain, and cement, burst; that its broken parts, very hot and in a molten condition, dropped to the ground, and ignited the dry grass and decaying vegetation which had accumulated on the right of way, beneath said tower; that the fire which burned over and injured plaintiff's land spread from this burning grass and vegetation. These allegations are denied by defendant.

The issues submitted to the jury were answered as follows:

(1) Were the lands of plaintiff burned and injured by the negligence of defendant, as alleged in the complaint? Answer: Yes.

(2) If so, in what sum, if anything, is the defendant indebted to plaintiff on said account? Answer: $800.

From judgment on this verdict, defendant appealed to the Supreme Court.

U. L. Spence, of Carthage, for appellant.

H. F. Seawell, of Carthage, for appellee.

CONNOR J.

The first assignment of error, discussed in the brief for defendant, is the refusal of the court to allow the motion for judgment as of nonsuit, made at the close of the evidence offered by plaintiff, and renewed at the close of all the evidence. C. S. 567. This assignment of error presents to this court the contentions upon which defendant chiefly relies upon its appeal from the judgment of the superior court. Defendant contends that there was no evidence sufficient to show that the origin of the fire was as alleged in the complaint; that if the fire began as alleged, there is no evidence that the bursting of the insulator was caused by the negligence of defendant, as alleged; that if the fire originated from burning grass and vegetation ignited by broken parts of the insulator, which had dropped from the tower, in a molten condition, and if the insulator burst as the result of heat caused by excessive electricity on the wire, this was the result of a stroke of lightning--an act of God--and was not due to negligence of defendant, as alleged.

Defendant further contends that if its right of way was in the condition which the evidence tends to show, this was not, in itself, negligence, for that the law applicable to a railroad company operating steam engines over the tracks on its right of way is not applicable to defendant, which maintains over its right of way lines for the transmission of electricity for the purpose of furnishing light and power to its patrons.

Unless there is evidence from which the jury could find, or fairly and reasonably infer and conclude, that the grass and vegetation on defendant's right of way, beneath the transmission line, was ignited by broken parts of the insulator on the tower above, which had dropped therefrom, very hot and in a molten condition, and that the fire which burned over plaintiff's lands spread from such burning grass and vegetation, defendant's motion for nonsuit must be allowed, for unless plaintiff's allegation as to the origin of the fire is sustained he cannot recover. The evidence submitted to the jury must be of sufficient probative force, if believed, to establish the primary fact involved in the issue. If the evidence would leave the jury to conjecture and speculate as to the origin of the fire, then it is not sufficient to be submitted to the jury. Dickerson v. Norfolk Southern R. Co., 190 N.C. 292, 129 S.E. 810; Whittington v. Iron Co., 179 N.C. 647, 103 S.E. 395; State v. Bridgers, 172 N.C. 879, 89 S.E. 804; Crescent Liquor Co. v. Johnson, 161 N.C. 75, 76 S.E. 625; Lewis v. Clyde Steamship Co., 132 N.C. 904, 44 S.E. 666. The rule has been approved by this court that evidence which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it is so, is an insufficient foundation for a verdict, and should not be submitted to a jury.

On the other hand, if there is evidence from which the jury could find, or fairly and reasonably infer and conclude, that the grass and vegetation were ignited by the broken parts of the insulator on defendant's tower, which had dropped thereon as a molten mass, and that the fire which burned plaintiff's lands originated from the burning grass and vegetation thus ignited, then the evidence is sufficient to be submitted to the jury to be considered by them under proper instructions of the court, upon plaintiff's allegation as to the origin of the fire. The fact, if found by the jury, that the fire was originated by the molten mass, composed of broken parts of the insulation on defendant's transmission line, would in itself be evidence of negligence. Bertie Cotton Oil Co. v. Atlantic Coast Line R. Co., 183 N.C. 95, 110 S.E. 600; Perry v. Branning Mfg. Co., 176 N.C. 69, 97 S.E. 162; White v. Hines, 182 N.C. 288, 109 S.E. 31; Speas v. Merchants Bank, 188 N.C. 524, 125 S.E. 398; Hunt v. Eure, 189 N.C. 482, 127 S.E. 593.

There was evidence tending to show that the fire, burning on plaintiff's land, on July 4, 1923, was first discovered about 3 o'clock in the afternoon; that at that time about half an acre of land to the north of tower No. 217 had been burned over. The fire was then burning all the way down to within six feet of the tower on the southeast side. The wind was coming from the southeast and the fire going to the northwest. It was dry weather. The wind was stirring, but it was not very windy. The land around the tower was burned. An insulator on the tower was broken, but it was still supporting the wire which was attached to it. There was nothing the matter with the tower line, except that the cups on two of the insulators were knocked off. Wire grass and stumps, lightwood knots, and dead wood were burning. On the ground, beneath the tower, a molten mass was found about two hours after the fire was first discovered. It was then cold. This mass was exhibited to the jury. There were some fine pieces and some large pieces on the ground. They were fragments of a broken insulator. The fire was burning within three feet of the molten mass, and these fragments.

On Friday, June 29, 1923, a patrolman, employed by defendant, inspected tower No. 217. He found all the insulators on said tower in perfect condition; none were broken. On Friday, July 5, 1923, the patrolman again inspected said tower, when he found that two of the insulators--No. 1, at the bottom, and No. 2, next above it--were broken. Nearly all the porcelain on insulator No. 1 was knocked off, and there was a little check on insulator No. 2, indicating that a small portion of the porcelain had been broken from it. The wires were still in position. Each wire is supported by seven insulators. There were seven wires to the tower, six service wires and one brace wire. On Sunday following, the patrolman fixed the broken insulators. An insulator is made of porcelain, which is a nonconductor of electricity. This porcelain is held in an iron cup, by cement. The purpose of the insulator is to prevent the escape of electricity transmitted on the wire, at the towers. Each insulator is supposed to insulate from 30,000 to 35,000 volts. Seven insulators are used on each tower for safety. The minimum insulation between the live wire at the bottom and the tower is 210,000 volts--30,000 to each of the seven insulators. The maximum voltage on the wires of defendant on July 4, 1923, was around 94,000 volts. A stroke of lightning carries a voltage from a million up. There are indicators both at Blewett's Falls and at Raleigh which show when lightning has struck any of the insulators along the transmission line between those two points. According to these indicators, the tower line was disturbed by a stroke of lightning about 2 p. m. on July 4, 1923. The fire on plaintiff's land, near tower No. 217, was discovered about 3 p. m., according to the testimony of the witness who first saw it.

This evidence is sufficient, if believed by the jury, to establish the following facts:

(1) That the fire which burned over plaintiff's lands originated on defendant's right of way across said lands, at a point beneath tower No. 217.

(2) That prior to the said fire, an insulator on said tower No 217 was broken, and that the broken parts and fragments of...