Mitchell v. Raleigh Electric Co.

• Citation: 39 S.E. 801,129 N.C. 166
• Parties: MITCHELL v. RALEIGH ELECTRIC CO.
• Decision Date: 29 October 1901
• Court: United States State Supreme Court of North Carolina

39 S.E. 801

129 N.C. 166

MITCHELL v. RALEIGH ELECTRIC CO.

Supreme Court of North Carolina

October 29, 1901

Montgomery J., dissenting.

Appeal from superior court, Wake county; Starbuck, Judge.

Action by Sallie Mitchell, administratrix, against the Raleigh Electric Company. Judgment for defendant. Plaintiff appeals. Reversed.

An employee of a telephone company, killed by a wire which he was stringing over a wire of an electric light company coming in contact with the latter at a point where the insulation was off it, is not guilty of contributory negligence in letting the wires come in contact, he having a right to presume that the electric wires were insulated as required by ordinance, and it being his duty to look for patent defects only, and there being no evidence that the abrasion in the insulation, varying in width from that of a pencil to 2 inches, and being 30 feet above the street, was, or by due care could have been, seen by him, or was known of by him.

This action was brought to recover against defendant company damages on account of the alleged negligent killing of intestate. It was alleged that intestate, while at work upon the line of the Bell Telephone Company in stringing a wire upon its line across and over defendant company's wires the wire being strung by intestate, came in contact with the wire of defendant company at a point which it had negligently permitted to be and remain uninsulated, and there by became charged with electricity, which was conveyed into the body of intestate, causing his death. From the evidence of plaintiff's witnesses it appears that intestate was in the employ of the Bell Telephone Company on January 14, 1899. While so employed, he was assisting another employed in stringing a wire upon the poles of the said company, at or near the intersection of Edenton and Blount streets, in the city of Raleigh. The wires of said company were supported upon poles, and were 10 feet higher than the wires of defendant. Intestate was on the north side of Newbern avenue. His fellow employé was upon the pole on the south side. Intestate had the coil of wire on his left arm or shoulder. A rope or hand line had been fastened to the end of the wire and it passed over a limb and through some trees on the north of the said street, over and across defendant company's wires, and placed in the hands of the employé of the Bell Company's pole, who was drawing it to him for the purpose of stringing the wire, to which it was fastened, upon the pole upon which he had climbed. Intestate was paying out the wire through his hands, and while doing so it came in contact with defendant company's electric wire, and he was "caught" by a current of electricity transmitted to the wire in his hands, and died in a minute,--before the wire was cut. Some two years before this occurrence the witness McFarland testified that he and another man (Hicks) were putting a phone wire across at the same place, and while doing so (but the wire was then drawn across the arm of a pole) Hicks carelessly permitted it to slack, and fall across the electric company's wire, making an abrasion in the insulation two inches wide, and Hicks got "caught" by a current of electricity, but he immediately cut the wire and released him. This was at the same place where intestate got "caught." He had noticed the place several times in the same condition between the two accidents. Bonner, the electrician, testified: That about 15 minutes after the occurrence he went to the place where this man was killed by a current from the wire of the defendant company, and saw a place on the defendant company's wire where the insulation had been rubbed off, which was the width of a lead pencil. The Bell line was lying in the place where the insulation was rubbed off. That about two years before he had noticed a place where the insulation was rubbed off. It was within 10 feet of this place. Caused by a phone wire pulling across the electric wire. It was the same size as the place he saw there the day of the accident, and did not notice but one place which was rubbed off on that day. Several witnesses testified that the proper way for a man who knew his business would have been to have passed the rope or hand line and wire over the arm of a tall Bell pole, and then pulled it across, thus avoiding contact with the electric wire, instead of through the trees, as was done. The ordinance of the city, which was in evidence, is as follows: "Sec. 7. All electric light and power wires, excepting trolley wires for electric railways, must be covered with a durable waterproof insulation not less than two coatings." After the close of plaintiff's evidence (defendant having declined to introduce any), plaintiff requested the court to give certain special instructions, which were refused, and plaintiff excepted. Verdict was rendered for defendant, and plaintiff appealed from the judgment.

J. B. Batchelor, for appellant.

R. L. Gray, for appellee.

COOK, J. (after stating the case).

The plaintiff was clearly entitled to have the instructions hereinafter discussed, and prayed for, given to the jury, if not in the exact language, certainly in substance, which does not appear in the charge as given. The defendant company was engaged in the business of manufacturing, producing, leasing and selling light made from the use of electricity, which is the most deadly and dangerous power recognized as a necessary agency in developing our civilization and promoting our comfort and business affairs. It differs from all other dangerous utilities. Its association is with the most inoffensive and harmless piece of mechanism--if wire can be classified as such--in common use. In adhering to the wire, it gives no warning or knowledge of its deadly presence. Vision cannot detect it. It is without color, motion, or body. Latently, and without sound, it exists, and, being...