This
is an action for actionable negligence, alleging damages, for
alleged wrongful death. It was originally brought in the
Municipal Court of the City of High Point, but a consent
order was entered transferring it to the Superior Court of
Guilford County. The defendant, Robert & Company, Inc.
entered a special appearance and moved that the action be
dismissed as to it for want of proper service of process.
This motion was sustained and an order entered to that
effect. Service was duly had upon the other defendants, who
filed answers. When the case came on for trial before His
Honor, Luther Hamilton, judge presiding, each defendant
demurred ore tenus to the complaint and moved for judgment on
the pleadings. The demurrers and motions were sustained, and
judgment entered dismissing the action. To the ruling
sustaining the demurrers and motions, and to the signing of
the judgment dismissing the action, the plaintiff appealed to
the Supreme Court.
The
complaint alleges, in part: "That the said plans and
specifications were approved and accepted by the defendant
Marshall Field and Company, which in January, 1937, employed
the defendant Southeastern Construction Company to erect and
construct said wing or addition; that the latter company
employed J. L. Coe to do the structural steel work on said
addition, and the plaintiff's intestate at the time of
his death was employed by said J. L. Coe and was engaged in
putting steel columns in said addition to said mill. That
the
addition or wing to said mill was to be
constructed of brick, supported by considerable structural
steel; that on March 11, 1937, said construction had
progressed to a point where most of the steel in the floor of
the second story had been placed, and the north brick wall
was about 8 or 8 1/2 feet high; that in order to place the
steel beams or columns in position it was necessary to use a
form of derrick, consisting of a wooden pole about 35 feet
long and about 16 inches in diameter, called a gin pole
which was held in position by guy ropes and braces; that near
the top of this pole were two pulley blocks and near the
bottom of said pole was what is called a winch, on which is
wound the steel cable used in hoisting the steel columns
that on March 11, 1937, said gin pole was located just inside
the north brick wall of said addition, near the northeast
corner of same; that it was located near a window in the
north wall, in which window it was necessary to place one of
these steel columns; that about 12 or 15 feet from said
window in the northwesterly direction from it was located the
pole from which the power lines ran to the old transformer;
that said power lines ran from said electric light pole to
said old transformer diagonally across said brick wall at a
point a few feet above said window; that about 9:30 or 10:00
o'clock A. M., on said day plaintiff's intestate and
fellow employees were hoisting a steel column into position
in the aforesaid window; that said column was picked up from
the ground just inside the north wall of said addition; that
plaintiff's intestate and two other employees were at
said time engaged in turning the handle on said winch, which
caused said steel column to be lifted from the ground and
into place with the assistance of other employees, who guided
it in its movement; that said steel column was about 30 feet
long and weighed about 650 pounds; that when it had been
partially raised so that it was clear of the ground it came
in contact with one of said power lines, which was charged
with about 13,200 volts of electricity, causing said electric
current to run down the column and the cable supporting said
column and into plaintiff's intestate, knocking him a
distance of 6 or 7 feet, and instantly killing him. That
there was no sign on said power lines of any kind to warn
persons on the premises that they were uninsulated, or
charged with electricity, or dangerous; that plaintiff's
intestate had not been warned of the danger of said wires;
that the condition of said wires and the danger inherent
therein were well known to all the defendants; that each and
every one of said defendants had the right and authority, and
was under the duty to warn persons rightfully on said
premises of the condition and danger of said power lines, and
to use reasonable precautions to protect such persons from
harm therefrom; that plaintiff's intestate was a poor,
illiterate and ignorant negro, and was ignorant of the fact
that said wires were uninsulated and exposed and charged with
a high voltage and very dangerous. That plaintiff's
intestate's death was directly and proximately caused by
the negligence and carelessness of the defendants, and each
of them, in the following particulars:
"(a)
In that said power lines were placed upon and allowed to
remain upon said premises in an exposed condition and
uninsulated and in this condition were charged with a high
voltage of electricity, when the defendants knew, or by the
exercise of reasonable diligence should have known, that they
were inherently dangerous, and would probably result in
serious injury or death to persons working near them, and
more particularly plaintiff's intestate. (b) In that said
power lines were so located upon said premises as to be
exceedingly dangerous, when charged with electricity, to
persons working near them, and more particularly the
plaintiff's intestate. (c) In that defendants placed no
sign of any kind on said power lines or the poles supporting
them to warn persons against danger therefrom, and in that
defendants failed and neglected to warn in any manner
plaintiff's intestate that said power lines were open and
exposed and dangerous. (d) In that the current passing
through said power lines was not cut off while persons were
working so near them, and particularly while plaintiff's
intestate and others were hoisting steel columns so near to
said wires, and in that no attempt was made by any of the
defendants to cut off or have cut off said current. (e) In
that said wires or power lines were not constructed at a
height and in such a manner as to not interfere with the
construction of said addition to said mill and the persons
working thereon. (f) In that the said power lines were not
covered with non-conductible material. (g) In that the
defendants did not complete construction of the new
transformer stand and change the wires from the old
transformer stand to the new one, where they would be out of
danger, prior
to the commencement of construction of said
addition. All of which acts of negligence on the part of the
defendants were the sole, proximate and efficient cause of
the death of plaintiff's intestate."
Plaintiff
excepted and assigned error: "That His Honor sustained
the demurrer ore tenus to the complaint and motion for
judgment on the pleadings of each defendant", and
"That His Honor rendered and signed the judgment set out
in the record," and appealed, to the Supreme
Court.
CLARKSON
Justice.
Did the
Court below commit error in sustaining the demurrer ore tenus
to the complaint and motions for judgment on the pleadings
made by each of the defendants? We think so under the facts
and circumstances of this case.
In
Leonard v. Maxwell, 216 N.C. 89, 91, 3 S.E.2d 316,
319, citing authorities, it is stated: "The office of a
demurrer is to test the sufficiency of a pleading, admitting,
for the purpose, the truth of factual averments well stated
and such relevant inferences as may be deduced therefrom, but
it does not admit any legal inferences or conclusions of law
asserted by the pleader."
It is
well settled that only...
