Partin v. Carolina Power and Light Co.

• Decision Date: 17 April 1979
• Docket Number: No. 7810SC419,7810SC419
• Citation: 40 N.C.App. 630,253 S.E.2d 605
• Court: North Carolina Court of Appeals
• Parties: Cleveland Allen PARTIN v. CAROLINA POWER AND LIGHT COMPANY.

Page 605

253 S.E.2d 605

40 N.C.App. 630

Cleveland Allen PARTIN v. CAROLINA POWER AND LIGHT COMPANY.

No. 7810SC419.

Court of Appeals of North Carolina.

April 17, 1979.

James B. Maxwell, Vann & Vann by Arthur Vann, Durham, for plaintiff-appellant.

Manning, Fulton & Skinner by Howard E. Manning and John B. McMillan, and Fred D. Poisson, Raleigh, for Carolina Power & Light Co., for defendant-appellee.

CLARK, Judge.

The defendant's motion for directed verdict under G.S. 1A-1, Rule 50, raises the question of whether plaintiff's evidence was sufficient to go to the jury. The appeal from the granting of defendant's motion by the trial court presents for determination the issue of whether plaintiff's evidence was sufficient on the issue of defendant's negligence, and, if so, whether plaintiff's evidence established his contributory negligence as a matter of law.

I. NEGLIGENCE OF DEFENDANT

It has been established as a general principle of law that one who maintains a high voltage electric line at places where people may be reasonably expected to go for work, business or pleasure has the duty to guard against contact by insulating the wires or removing them to a place where human beings will not likely come in contact with them. Williams v. Carolina Power and Light Co., 296 N.C. 400, 250 S.E.2d 255 (1979); Philyaw v. Kinston, 246 N.C. 534, 98 S.E.2d 791 (1957); Ellis v. Carolina Power and Light Co., 193 N.C. 357, 137 S.E. 163 (1927); Graham v. Sandhill Power Co., 189 N.C. 381, 127 S.E. 429 (1925); Haynes v. Raleigh Gas Co., 114 N.C. 203, 19 S.E. 344 (1894); Bogle v. Duke Power Co., 27 N.C.App. 318, 219 S.E.2d 308 (1975), Cert. denied 289 N.C. 296, 222 S.E.2d 695 (1976); See Davis v. Carolina Power and Light Co., 238 N.C. 106, 76 S.E.2d 378 (1953); 29 C.J.S. Electricity § 42 (1965).

Where the high voltage line is located in a place of reasonable safety, a place where contact with them by human beings might not ordinarily be anticipated, the electric company is not negligent if there is contact and injury in the absence of adequate notice that such contact is likely. In Philyaw v. Kinston, supra, the judgment of nonsuit was affirmed because the evidence was insufficient to charge the defendant with notice that someone might erect a building under and up to its transmission lines. In Davis v. Carolina Power and Light Co., supra, judgment of nonsuit was affirmed because defendant had no notice that plaintiff's intestate was moving his house under its line.

In the case Sub judice, the plaintiff offered evidence that the high voltage, exposed wires were sagging, that plaintiff notified defendant first in August 1968, and several times thereafter before the date of injury on 29 March 1969, that he was constructing a building near the line, and that defendant had promised when first notified and several times thereafter to move the power line but failed to do so. We conclude that there was sufficient evidence of negligence to withstand the directed verdict motion.

Whether defendant's negligence was a proximate cause of plaintiff's injury poses a more difficult problem. The defendant contends that the intervening conduct of plaintiff's son, Ben Partin, was not foreseeable and this insulated the primary negligence of the defendant.

It is not required that the defendant foresee the precise injury, (Hart v. Curry, 238 N.C. 448, 78 S.E.2d 170 (1953)); the particular consequences it produces, (Green v. Isenhour Brick & Tile Co., 263 N.C. 503, 139 S.E.2d 538 (1965)); nor the exact manner in which it occurs, (Taney v. Brown, 262 N.C. 438, 137 S.E.2d 827 (1964)). All that is required is that defendant "in the exercise of the reasonable care of an ordinarily prudent person, should have foreseen that some injury would result from her negligence, or that consequences of a generally injurious nature should have been expected . . . ." Hamilton v. McCash, 257 N.C. 611, 618-619, 127 S.E.2d 214, 219 (1962).

"Although earlier decisions of the North Carolina Supreme Court indicated that intervening acts had to be gross and palpable to relieve a defendant of liability, it now seems well-settled that foreseeability is the principle applied by the court to determine the extent of defendant's liability in these cases as well as in cases in which no intervening cause is involved. Defendant must take into account matters within the realm of common knowledge and is to be held liable when the intervening cause is a part of the risk he has created."

Byrd, Proximate Cause in North Carolina Tort Law, 51 N.C.L.Rev. 951, 966 (1973).

The cases in North Carolina do not support the broad generality that misconduct of others is unforeseeable. See Rowe v. Murphy, 250 N.C. 627, 109 S.E.2d 474 (1959), (unforeseeable that negligent driver will collide with defendant's car negligently parked on the highway); Alford v. Washington, 238 N.C. 694, 78 S.E.2d 915 (1953), (unforeseeable that negligent motorist will collide with pole and cause uninsulated wires to fall). The intervention of wrongful conduct of others may be the very risk that defendant's conduct creates, or even if it arises independently of defendant's action, may be one against which he is under a duty to safeguard. Benton v. North Carolina Public-Service Corp., 165 N.C. 354, 81 S.E. 448 (1914), (twelve-year-old climbed tree in populous residential area and came into contact with defendant's uninsulated electric wires). In Nance v. Parks, 266 N.C. 206, 146 S.E.2d 24 (1965), the defendant drove his vehicle into a garage to get the turn signal repaired. He left the motor running, the gear lever on "drive," and set the brake. The garage mechanic, Buchanan, lay on the floor under the steering column and depressed the accelerator, causing the car to leap forward and strike plaintiff. Sharp, J., (now Chief Justice), for the Court, stated:

"In this case defendant's primary negligence depends upon whether He should reasonably have foreseen and expected that Buchanan might depress the accelerator, (thereby) causing the car to leap forward with resulting injury to plaintiff or others. If he is negligent, it is because he should have reasonably foreseen this development and guarded against it. And, under the test, Supra, if it was thus foreseeable it could not afford him insulation. It is entirely possible that defendant and Buchanan might be joint tortfeasors, but it is not possible under the facts of this case that Buchanan's alleged negligence could insulate defendant's conduct."

Id. at 211, 146 S.E.2d at 28-29.

The foreseeability limitation has been extended to hold the wrongdoer liable to a third party who is injured while attempting to aid the person endangered by his negligence. The "rescue doctrine" is stated and explained subsequently in dealing with the contributory negligence issue, but the doctrine is relevant on the proximate cause question because the doctrine has stretched the foreseeability limitation to hold the defendant liable to the plaintiff who is injured while attempting to aid the person endangered by his own negligence, even though the negligent party placed himself in a position of peril. Britt v. Mangum, 261 N.C. 250, 134 S.E.2d 235 (1964); Norris v. Atlantic Coast Line R.R., 152 N.C. 505, 67 S.E. 1017 (1910).

Applying these principles of the law of proximate cause to the case Sub judice, we find that there was sufficient evidence of proximate cause to withstand the directed verdict motion because it did not establish as a matter of law that the conduct of Ben Partin in contacting defendant's electric line intervened to insulate the negligence of the defendant. Further, if on retrial, the evidence is substantially the same, the jury should be instructed that the negligence of the defendant did not have to be the sole proximate cause; that if the conduct of Ben Partin in contacting the wire with the metal rod, though he was negligent in so doing, was also a proximate cause which concurred with the negligence of defendant to produce the injury to plaintiff, then the negligence of defendant would not be insulated by such conduct on the part of Ben Partin.

On retrial the trial judge for the purpose of clarity may find it desirable to separate the usual actionable negligence first issue into two issues: first, negligence of the defendant, and second, proximate cause.

II. CONTRIBUTORY NEGLIGENCE OF PLAINTIFF

In determining whether the trial court erred in granting defendant's motion for directed verdict, we must decide whether the evidence established as a matter of law (1) plaintiff's own primary negligence, (2) whether Ben Partin was an agent of plaintiff, and, if so, (3) the negligence of plaintiff's son, Ben Partin.

Relevant to the first two of these questions is the "rescue doctrine" which has been established in North Carolina. See Britt v. Mangum, supra; Bumgarner v. Southern Ry., 247 N.C. 374, 100 S.E.2d 830 (1957); Norris v. Atlantic Coast Line R.R., supra. Under this doctrine, one who sees a person in imminent peril through the negligence of another cannot be charged with contributory negligence as a matter of law in risking his own life, or serious injury, in attempting to effect a rescue, provided the attempt is not recklessly or rashly made. The doctrine does not apply where the rescuer has himself brought about the danger. See Annot., 19 A.L.R. 4 (1922).

1. Plaintiff's Primary Negligence

It appears that the rescue doctrine applies in this case, which would negate contributory negligence by plaintiff as a matter of law in attempting to rescue his son, provided that his negligence preceding the rescue attempt did not bring about the danger. Defendant makes the argument that plaintiff was negligent in continuing construction under the exposed electric line, in failing to warn his son of the danger, and in permitting him to handle lengthy metal rods near the high voltage wires. The evidence of such negligence, however, does not establish contributory...