Murphy v. Carolina Power & Light Co.

• Decision Date: 09 January 1929
• Docket Number: 561.
• Parties: MURPHY v. CAROLINA POWER & LIGHT CO.
• Court: North Carolina Supreme Court

146 S.E. 204

196 N.C. 484

MURPHY v. CAROLINA POWER & LIGHT CO.

No. 561.

Supreme Court of North Carolina

January 9, 1929

Appeal from Superior Court, Buncombe County; H. Hoyle Sink, Special Judge.

Action by Charles F. Murphy, administrator of Weaver Murphy, against the Carolina Power & Light Company. Judgment for plaintiff and defendant appeals. No error.

This is an action for actionable negligence brought by Charles F Murphy, administrator of Weaver Murphy, for the death of his son Weaver Murphy.

Defendant is engaged in the business of furnishing and selling electricity. One of its principal places of business is in Asheville, N. C., and the electric current is transmitted over its power lines to the surrounding section. There was a power line of defendant company running through the Newfound section in Buncombe county, N.C. Charles F. Murphy lived in that section and farmed, and the power company's lines ran through the farm he leased. He was also deputy fire warden. He had a son, the deceased, Weaver Murphy, 13 years of age. He was going to school while in session. He was "bright in his books, learned quickly," physically good and obedient. The boy had been told if he happened to see any fire to go to it and control it and if necessary to call in others. On April 27th, a few minutes after 1 o'clock p. m., his father sent him to a store some half a mile away to get some fence staples and nails. His son did not return, and the father went and searched for him. His father testified:

"I found him hanging to a wire fence; he was dead; it was 7:30 p. m. when I found him clinging to a wire fence; he had hold of the wire with his right hand underneath, and on top with his left hand, and he took hold of it like a man would to bring it down to crawl through it, and he had a tight grip on it. I pulled his hands loose from the wire with my hands; his body was apparently cold; I found burns on him and his clothes were burned pretty bad. When I pulled his hands loose from the wire, it pulled some of the skin off his hands and left the skin on the wire his hands were burned all right; where I found the boy there was some burns about the side of his face and his hip where he laid against the fence and the shoulder which was next to the wire was burned pretty bad. The shrubbery all along the wire was burned off and killed, and then there was some beyond where he was found burned and killed. *** I didn't know why he would go over there unless he went to see about the fire. I didn't send him over there at all, but I supposed he went there. There was fire over there in the edge of the woods. You could see the smoke from that fire from the road the little boy went along as he went to the store."

One Reeves testified:

"I came something like fifteen minutes of twelve o'clock for dinner, and was washing and my wife was in the kitchen there and said 'What is that making that fuss'--the wire had come down. I said 'Sounds like an airplane.' I couldn't see it. She said 'Come here, there is something on fire.' She said, 'It is that power line down,' and I stepped out in the yard where I could see and I said 'Yes, it is a wire down,' and I said 'You go and call the Power Company,' and she said 'I don't know who to call,' and I said 'Call the operator at Leicester; she can call them and tell them to cut off the line. It is burning up things there.'

"Q. Is this the lady that was the switchboard operator at Leicester? A. Yes sir. She tried to call her and said the phone was popping and cracking so she couldn't handle it. I said I would try and get Mrs. Brooks to understand the power line was down and for them to cut it off, it was dangerous; my cows were in the field. My clock said fifteen minutes to twelve when I used the phone, phoned Leicester; there is a phone line at Leicester that connects with Asheville; that phone line was taken care of that evening some time; I don't know what time it was repaired; I did not see the men come out there; it was about twenty minutes of two o'clock and it was still popping and cracking; that's by my clock."

Mrs. L. C. Brooks testified:

"In my home he (Weaver Murphy) was nice and polite and seemed all right in every way; his physical appearance was good; I would think he was fairly well developed for a boy of that age. I operated the switchboard at Leicester at the time of his death. There is a telephone line extending up the Newfound section; there was a line went into the home of Mr. Reeves; I remember Mr. Reeves calling me, but at that time I had already called the Power trouble. *** He said the line was down, and I called them and told them they had a line down. I called to the Power & Light Company, here in the city; I got connection with them; the first time I called I told them I had a line out of order, a telephone line out of order, caused by the power line, it caused my line to be out of order, the next time I called I told them I had been notified that they had a wire down on Newfound, an electric wire down on Newfound, and they said they would send a man right out; that was somewhere along about noon hour; it was somewhere around the middle of the afternoon that the trouble cleared up some. *** Of course it didn't get clear the whole afternoon. *** It was just a few minutes after I got this information until I got the Power Company, just as soon as I could call the Asheville operator and she got me a connection with the Electric Company men--with a man on the line; it was just a few minutes before Mr. Reeves called that I saw this trouble and phoned them; I went on the line and thought someone was calling me and discovered the trouble. I got a reply from the Power Company that they would send a man out immediately. *** This was in the Newfound section; I again called the Power Company after Mr. Reeves called me; I told them I had been notified they had a wire down on the Newfound line I had called about; I didn't know the first time what the trouble was; I told them I had a line out of order, caused by the power line. I don't know who I talked with when I first called, I never do ask who answers the phone; since they have the number changed--I asked for the trouble man; at that time they had no switchboard; I called for the trouble man; I have always done that since I have been calling the electric people."

H. A. Ballard, maintenance superintendent of defendant, testified:

"I am not familiar with the survey of the Canton line, the line that runs out Newfound to Canton; that line was built for 44,000 voltage. The line ordinarily carried 44,000. I couldn't say that I was familiar with the place where the switch is on that line. I know we have disconnections in the Weaver section, as it is known in the Carolina Power Company. They have disconnections on the line, but I don't know how many; there is a power station; I know where it is; this power can be taken off by a disconnect. I don't know whether they have an oil switch on their line or not at that time, but I think they have. This disconnection of theirs is controlled by one pull of the handle; three switches are pulled out at once, as I remember it; the operator would have to go one hundred feet and cut the power off by pulling a lever."

J. B. Rogers, testified:

"I was plowing on the North side of the creek right opposite where the boy was killed, or where the wire was down. I heard a noise and it was sort of cloudy and the wind blowing a little, and I thought probably the lightning struck the wire, it kept crackling and popping and I noticed the sparks flying, and I went on the plowing, and a little later on I heard it again; I know where this pole that has been spoken of by the witnesses is; it is pretty close to the cross fence; I wouldn't say exactly how close, but pretty near the fence; the fence is a wire fence tacked on the post, this high voltage wire that has been spoken of hung right over that wire fence; I first began to hear this popping somewhere near two o'clock. It was after I went out to my work; I didn't notice exactly what time; I saw some sparks and smoke, sparks going from the wires and places catching on the fence, and I also saw some smoke up near the edge of the woods; I don't think the woods were set afire; there were leaves burned and just some rotten logs by the fence. ***" (This witness went with Chas. F. Murphy and found the boy about 7:30.) "I went along down the fence ever so far and directly I discovered the boy hanging up on the fence with his hands to the fence, fell back against it. *** Afterwards I was over there and noticed some of those wires looked like they had been melted and burned with some kind of heat. I saw some shrubbery and bushes scorched; I found them on both lines; I would think it was right around three o'clock when I saw some men come there; maybe a little later; I wouldn't take no less; the first I noticed of them, they run up there near the burning and stopped the truck. I didn't know who they were until after they got done and started through the field, I saw their fixtures and I knew it was men going up there to fix the line. I believe there were as many as three, maybe four; I didn't pay any attention to the kind of truck they came in; they went up to this pole that has been spoken of; I saw them looking around there and then I could see them drawing up something like they were fixing it; they were insulators, looked to me like; they were getting the thing they were drawing up from below, looked like from the ground up. I couldn't see the wire that far; I don't know how long they worked there; they weren't there so awfully long."

U. F. Ford testified:

"I was there in the road loading logs there and this line was down over there in the field, at this post, and...