Lynch v. Carolina Telephone & Telegraph Co.

• Decision Date: 01 March 1933
• Docket Number: 101.
• Parties: LYNCH v. CAROLINA TELEPHONE & TELEGRAPH CO.
• Court: North Carolina Supreme Court

167 S.E. 847

204 N.C. 252

LYNCH v. CAROLINA TELEPHONE & TELEGRAPH CO.

No. 101.

Supreme Court of North Carolina

March 1, 1933

Appeal from Superior Court, Warren County; Frizzelle, Judge.

Action by Pattie P. Lynch, by her next friend, Beulah B. Lynch against the Carolina Telephone & Telegraph Company. From the judgment for plaintiff, defendant appeals.

No error.

On motion for dismissal at the close of plaintiff's evidence, such evidence must be taken as true, and construed in a light most favorable to plaintiff.

This is an action for actionable negligence instituted by plaintiff against defendant alleging damage.

The following seven allegations of the complaint are admitted by defendant:

"2. That plaintiff is a resident of Warren County, N. C., and is an infant 20 years of age, who appears herein by her duly appointed, qualifying and acting next friend Beulah B Lynch.

"3. That on 24 June, 1930, defendant furnished for its customary charges telephone service in the dwelling of F. B. Lynch, in Warren County, where plaintiff made her home as a regular member of the family.

"4. That as a part of the equipment necessary to furnishing such service in said Lynch home the defendant maintained a wire known as a ground wire, which consisted of a wire running from a certain point in the house to a metal rod driven into the ground outside of the house.

"5. That a properly connected ground wire is a part of the usual and customary equipment at each dwelling where telephone service is maintained.

"6. That for reasons for protection from lightning a properly connected ground wire is necessary at each dwelling where telephone service is maintained.

"7. That at said Lynch dwelling on 24 June, 1930, and for several months prior thereto there was no lighting arrestor other than a ground wire at said Lynch dwelling.

"8. That unless the telephone apparatus at a dwelling is properly maintained, lightning may be conducted into such dwelling by striking other parts of defendant's general system of wires."

The defendant further alleges:

"9. That on 24 June, 1930, and for several months prior thereto defendant negligently and carelessly maintained at said Lynch dwelling an insufficient and improper ground wire, with full knowledge thereof from August, 1929, until 24 June, 1930.

"10. That after a severe ball or bolt of lightning had entered said dwelling during the month of August, 1929, upon which occasion the telephone in said dwelling was wrecked, defendant's agent and employee inspected the ground wire connection, pronounced same wholly inadequate and unsafe and pretended to repair same, stating that such repair was temporary and would be made permanent and thoroughly safe at an early date.

"11. That plaintiff and the other members of said Lynch home were wholly unfamiliar with matters of electricity and relied implicitly upon defendant's said agent and employee to protect them from the dangers of improperly grounded telephone apparatus; that plaintiff and said family exercised no control over said apparatus, both on account of their ignorance and defendant's control.

"12. That said telephone, telephone apparatus and ground wire were carelessly and negligently allowed by defendant to remain in said unsafe, improper and insufficient condition in utter disregard for the safety of the occupants of said dwelling and with negligent, heedless, careless, reckless, and wanton disregard and indifference for their lives and property; that during the said period from August, 1929, until 24 June, 1930, plaintiff's life and well-being, as a result of defendant's said negligence were wholly at the peril of powerful balls and bolts of lightning and chance.

"13. That on 24 June, 1930, at or about seven o'clock in the afternoon, while a thunderstorm was in progress, plaintiff passed within two feet of the telephone maintained as aforesaid; that upon reaching a point two feet therefrom plaintiff was struck on the right side of her head by a ball or bolt of lightning and rendered unconscious thereby, said ball or bolt of lightning having entered said dwelling over said improperly maintained apparatus; that plaintiff remained unconscious for several hours, was so painfully shocked and injured that her life was despaired of throughout a large part of the night, her body became weak, cold, stiff and numb, and her hearing lost in her right ear for several days.

"14. That as a direct and proximate result of her said injuries, plaintiff at times becomes exceedingly nervous, weak, cold, numb and frightened, such spells lasting for an hour or more and periods of extreme weakness lasting for a day or more; that plaintiff has become generally nervous and suffers during every thunderstorm paroxysms of fear, resulting in extreme nervousness, fright, discomfort and suffering, all of which conditions will follow plaintiff throughout her life and continuously cause her great pain, suffering, annoyance, embarrassment and humiliation.

"15. That all of plaintiff's said injuries and conditions were and are proximately and directly caused by the negligence of defendant, hereinbefore set forth, she having been before her injuries a perfectly normal, healthy and happy girl.

"16. That as a direct and proximate resuit of defendant's said negligence and its reckless and wanton disregard for plaintiff's safety, plaintiff has been damaged in the sum of Ten Thousand Dollars."

Defendant in its answer says:

"10. That it is admitted that during the month of August, 1929, lightning entered the dwelling and damaged the telephone there located; the remainder of section 10 is untrue and is denied.

"11. That this defendant has no knowledge or information as to the matters set forth in this section and therefore denies the same.

"12. That section 12 is untrue and is denied.

"13. That it is admitted that on or about the 24th day of June, 1930, that plaintiff was struck by lightning and suffered some ill effects therefrom; the remainder of said section is untrue and is denied. And further answering this section the defendant avers that on this day an electrical storm of unusual intensity developed in and around the community; that in addition to the wires and equipment used in connection with the telephone there was located upon said house a system of lightning rods and nearby a lighting system and that wires from all of these ran upon and into said house and as this defendant is advised, believes and avers the lightning entered said house either from the lightning rods or the lighting system. And this defendant further avers that at times of unusual electrical disturbance lightning often enters a dwelling by means of wires therein located and damages the equipment notwithstanding the existence of a properly installed and maintained ground connection.

"14. That section 14 is untrue and is denied.

"15. That section 16 is untrue and is denied.

"Wherefore, defendant prays that plaintiff take nothing by her action and that it recover its costs."

The issues submitted to the jury, and their answers thereto, were as follows:

"1. Was the plaintiff injured by the negligence of the defendant as alleged in the complaint? Answer: Yes.

"2. What amount, if any, is the plaintiff entitled to recover of the defendant? Answer: $5,000.00."

Judgment was rendered by the court below on the verdict. The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The necessary facts will be set forth in the opinion.

Kerr & Kerr, of Warrenton, and Gilliam & Bond, of Tarboro, for appellant.

Julius Banzet and Frank B. Banzet, both of Warrenton, for appellee.

CLARKSON Justice.

The defendant abandons all of its exceptions and assignments of error except one and says that:

"The single question presented by this appeal is the correctness of the action of the trial court in overruling defendant's motion for judgment as in case of nonsuit., C. S. § 567, at the close of plaintiff's evidence and at the close of all the evidence.

"The plaintiff was injured during an electrical storm when within two feet of defendant's telephone installed in her home by receiving a shock caused by a discharge of lightning, which damaged the telephone and connecting equipment. The negligence of defendant consisted in its failure to have a type of ground connection such as was approved and in general use. The defendant's position is that there was no evidence that its negligence, if conceded, was the proximate cause of the injuries."

We think the court below made no error in overruling defendant's motions.

The defendant in its brief states so well its position that we quote it: "The defendant concedes that it was fixed with knowledge that lightning might be conducted over its telephone wires to and into plaintiff's home and there do injury, and that it was its duty to provide all known and approved devices in general use for preventing such consequences and guarding against accidents from lightning. Defendant further concedes that plaintiff's case was sufficient to be submitted to the jury from the standpoint of whether or not...