Mitchell v. Charleston Light & Power Co

• Court: South Carolina Supreme Court
• Writing for the Court: GARY
• Citation: Mitchell v. Charleston Light & Power Co, 31 L. R. A. 577, 22 S.E. 767, 45 S.C. 146 (S.C. 1895)
• Decision Date: 17 September 1895
• Parties: MITCHELL. v. CHARLESTON LIGHT & POWER CO.

22 S.E. 767

45 S.C. 146

MITCHELL.

v.CHARLESTON LIGHT & POWER CO.

Supreme Court of South Carolina.

Sept. 17, 1895.

Accident from Electric Wires—Negligence-Instructions.

1. An instruction that if a cyclone that could not be anticipated was the cause of the wire falling, and defendant was not negligent in allowing it to remain down for an unreasonable time, it would not be liable, is not misleading, as allowing an inference that, if a cyclone which might have been anticipated was the cause, defendant was liable, though not negligent in allowing it to remain down an unreasonable time, where the court also charged that if it was the act of God it could not be anticipated, and defendant would not be liable, but, on the other hand, defendant was charged with placing the wires so as to withstand ordinary weather, and was liable if the accident was due to the wires being improperly erected, or to their being allowed to remain down an unusually long time on the ground after having been broken down.

2. Nor is such charge open to the construction that defendant would be liable, though not negligent, if the falling of the wire was caused by a class of storm other than a cyclone, or by a storm of not quite the same degree of violence as a cyclone, the word "cyclone" havingbeen used because the witnesses had testified that the day was cyclonic.

3. An instruction that, if the wire was broken by some cause beyond the control of defendant, no blame could attach to defendant from the fact that it fell and remained lying in the street, unless it was allowed to remain there "after notice" for an unreasonable time, is properly refused; for the negligence of defendant might have consisted in its failure to know the facts connected with the breaking of the wire, it being bound to use diligence to receive information as to the condition of its wires.

4. It is not the duty of the court to strike from a requested charge the part which renders it defective, and give the remainder.

5. The court, on giving plaintiff's request to charge, "When one is placed by the negligence of another in a situation of terror, his attempt to escape danger, even by doing an act which is in itself dangerous, and from which injury results, is not contributory negligence, such as will prevent him from recovering, " said, "If a man is in danger, and in order to avoid that danger, bona fide, does something which is dangerous, that would not be considered, in law, contributory negligence, " and that these words should be construed in connection with the request to charge. Held, that defendant could not complain of such comments on and explanation of the requested charge, as they were not erroneous in themselves, and did not lay down a different proposition of law from that contained in the request, which was not complained of.

Appeal from common pleas circuit court, Charleston county; Ernest Gary, Judge.

Action by John S. Mitchell against the Charleston Light & Power Company for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.

The charge of the court was as follows:

"It is a matter of congratulation to you, as well as to those engaged in this case, that it is about to draw to a close. After the able argument made on the facts, I trust you will not be delayed in your deliberations in forming a conclusion. Before charging you on what I conceive to be the law of the case, it may be proper to state to you what are the material issues made by the pleadings. The complaint charges that on the 16th day of December last, about a year ago, while walking on one of the thoroughfares of the city of Charleston, the plaintiff came in contact with a wire erected by the defendant, and, by such contact, received injuries to the extent of $20,000. The defendant joins issue with him, both as to the amount of his injuries, and sets up the affirmative defense that he, the plaintiff, contributed to his own injury, if he sustained any, and that thereby the company was absolved. The defendant sets up the further defense that the injury complained of was due to no fault on the part of the company, but to an act of God, over which the company had no control, and could not reasonably anticipate. These are the issues of fact presented to you.

"I charge you, as matter of law, that a company of this kind, using a thoroughfare or public highway for the purpose of its business, is charged in law with great care, not only in erection of the wires, but in maintain ing and keeping them in repair. They must be so kept and conducted that a citizen pursuing the ordinary vocations of life will not come in contact with them. It is the business of the company to so erect them as not to interfere with the safety of the citizens of the community while pursuing their vocations in the ordinary walks of life. The question for you is, were these wires erected so as to anticipate any ordinary occurrence in the weather? Was it the act of God, or was it the careless or loose manner in which the wires were erected, which caused this wire to break? If it were the act of God, —that is, such an act that a business man of ordinary forethought and prudence could not anticipate—then the company would not be liable under those circumstances. But, on the other band, the company is charged with so placing their wires, and so keeping them in repair, as to withstand the ordinary weather, —rain, heat, cold, and wind. It is alleged on the part of the company that that wire was broken in consequence of a severe windstorm. Was it an ordinary windy day, such as is liable to occur at that time of the year, or was it one that could not be anticipated. The law does not require impossibilities. If a cyclone, that could not be anticipated or reasonably foreseen, was the cause of that wire falling, and the company was not negligent in allowing it to remain there for an unreasonable length of time, then, under these circumstances, it would not be liable. But if the accident was due to the wires being improperly erected, or improperly maintained in repair, or, having been properly erected, were broken, and allowed to remain on the streets an unusually long time, then, if the injury to the plaintiff occurred under those circumstances, the company would be liable to compensate him in damages. These are the general observations that I desire to call your attention to before passing upon the points of law that I have been requested to charge you. Before reading these requests, I desire to state to you what is negligence, in words you will readily understand. Negligence is the want of due care. That expresses it in a few words.

"The plaintiff requests me to charge you as follows: 'Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person, under existing circumstances, would not have done, the essence of the fault being either in the omission or commission.' That I charge you as law. 'Second. If the jury believe that the defendant company was notified by telephone from Mr. Street's office that there was trouble with its wires, and failed to take immediate steps to investigate such trouble and rectify the same, if trouble existed, and if a sufficient time between the notice to the defendant of the trouble to its wires and the accident to the plaintiff, for its investigation and attention, had elapsed, and thereafter, by reason of the failure of the defendant to attend to its said wires, such wire or wires, charged with electricity, hung suspended over the scene of the accident, so as to become dangerous to passengers on the street, then the defendant would be guilty of negligence.' I charge you that which, in plain words, is that if the company was notified that its wires were down, and did not take steps, in a reasonable length of time, to repair them, it would be guilty of negligence, if an accident occurred, in not repairing their wires in a reasonable length of time. 'Third. The degree of care which the law requires in order to guard against injury to others varies greatly according to the circumstances of the case, and if the jury believes that electricity was the power used by the defendant in its business, and is a highly-dangerous agency to life, unless exercised with constant and extreme care, then, to such extent, a high degree of care, in its supervision, management, and use, is required of defendant, and a failure on its part to exercise such high degree of care would be negligence.' That, I charge you, is a good proposition of law. 'Fourth. If the jury believe that the defendant was negligent, according to the definitions given above, and that in consequence of such negligence the plaintiff accidently came in contact with wires charged with electricity, operated and controlled by defendant, and was injured thereby, then the plaintiff would be entitled to recover.' That I charge you to be the law. The fifth and sixth requests I refuse to charge, as having no application to this case. 'Seventh. When one is placed by the negligence of another in a situation of peril, his attempt to escape danger, even by doing an act which is in itself dangerous, and from which injury results, is not contributory negligence, such as will prevent him from recovering.' That I charge you as law. If a man is in danger, and in order to avoid that danger, bona fide, does something which is dangerous, that would not be considered, in law, contributory negligence. No issue involving the eighth proposition is made in the pleadings nor in the evidence, and is hence refused. 'Tenth. If the jury find that the defendant is liable, then they should give the plaintiff such damages as he has proved in this case, not exceeding $20,000; and, in estimating such damages, they must take into consideration the permanent injury to the plaintiff, the shock to his system, his pain and anguish, and a fair recompense for loss of what he might...