Shaw v. North Carolina Public Service Corporation
| Decision Date | 14 April 1915 |
| Docket Number | 364. |
| Citation | 84 S.E. 1010,168 N.C. 611 |
| Parties | SHAW v. NORTH CAROLINA PUBLIC SERVICE CORPORATION. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County.
Action by Roy Shaw against the North Carolina Public Service Corporation. From a judgment for plaintiff, defendant appeals. Affirmed.
An electric company's failure to show its transformer was in good repair, though charged with allowing an unusual current to be carried into the building where plaintiff worked, held to warrant a finding it was defective.
The defendant is a corporation engaged in the business of furnishing electricity to the inhabitants of the city of Greensboro for lighting purposes, and, as such, it contracted with the Cook-Lewis Foundry Company to supply it with electricity for said purpose; the current not to exceed 119 volts. Plaintiff was employed by the Cook-Lewis Foundry Company as an apprentice in the molding department of its business, and was, besides, learning the trade of molding. On July 15, 1914, while in the performance of his duty of cleaning out molds, the plaintiff was required to use and hold in his hand an electric lamp or bulb attached to a wire cord, which was connected with the current of electricity furnished by the defendant to his employer, and, while holding the bulb close to the mold for the purpose of cleaning it, "he was suddenly hurled from his feet with great force and violence, and was knocked unconscious by the electric current fed to the lamp which he was holding," and received serious and painful injuries, which proved to be of a permanent nature, disfiguring his hand and impairing to some extent its usefulness. He alleged that he had used and handled the electric lamp in the same way for several years without the slighest harm to himself, and that his injuries were caused by a sudden and considerable increase of the current of electricity by defendant, far in excess of the voltage contracted for by his employer, and that this was the result of a defect in what is known as a "transformer," an instrument devised to control the current, by raising or lowering it, and attached to one of defendant's poles in the street near the foundry. It is also charged that this defect was due directly to the negligence of the defendant in not properly inspecting the transformer and keeping it in proper condition, that instrument being wholly within the control and management of defendant and belonging to it. It was also alleged and shown that the increase of the current was so great and it became so energetic and powerful that when one of his coemployés who had come to his relief, touched his body, he was knocked 10 feet away, and plaintiff could not be separated from the wires until the lever or switch had been turned and the current entirely cut off. The defendant averred that plaintiff's injuries were not caused by its negligence but by that of his employer, whose electrical appliances in the foundry were defective and unsafe, and that its transformer was in good condition, as it was examined immediately after the accident by its experts, and found to be in perfect condition and in good working order, and that the real and proximate cause of the plaintiff's injuries if he sustained any, was that the socket of the lamp which he was handling was defective and not properly insulated; that one of the wires upon the inside of said socket was broken and defective; that the cord from which said socket was suspended had become, through use and age, worn and uninsulated; that the plaintiff, who was standing upon the damp and wet ground, which accelerated or increased the current of electricity, did, by reason of the conditions of the ground as aforesaid, and by reason of the defective socket and cord as aforesaid, receive the full voltage of electricity going into the said building, which, under the circumstances and conditions above set out, is very dangerous and likely to produce injury; that the socket in use in the building of the Cook-Lewis Foundry Company is not the proper socket for the purposes for which it was used; and that it should have been protected by a porcelain or a wooden cover or guard, which is the proper socket covering, when it is to be handled, and especially is this true when the person handling the same is standing upon a damp or wet floor or surface. The defendant further, on information and belief alleges that the electrical wiring and appliances had been installed in the building of the Cook-Lewis Foundry Company many years prior to the alleged injury to the plaintiff, as set out in his complaint, and that during all these years the said wiring and appliances had never been inspected by the Cook-Lewis Foundry Company, or by any one for it; that, had an inspection been made of said wiring and appliances, the defects as hereinbefore set out could and would have been readily detected. Defendant also averred that the foundry company had furnished its own electric appliances inside its building, and had full charge and control of the same.
There was evidence to support the respective contentions of the parties. The jury found that plaintiff was injured by the negligence of defendant, and assessed his damages at $4,000. From the judgment upon the verdict, the defendant appealed.
J. I. Scales, of Greensboro, for appellant.
C. C. Frazier and R. C. Strudwick, both of Greensboro, for appellee.
WALKER, J. (after stating the facts as above).
The case seems to have been reduced practically to a question of fact, whether the plaintiff's injuries were due to the defective transformer or to the defective incandescent lamp attached to the cord, which he carried in his hands and used for throwing light on the moulds, so that he could see how to clean them. The feed wire of the defendant, from which it supplied the current of 119 volts to the foundry, carried as much as 2,300 volts, which is not only a dangerous, but a very deadly, current. It appears by strong inference from the evidence that the defective transformer was the cause of the injury, because if it was due to a defect in the lamp, or its socket, it is strange that the accident had not occurred before, as the lamp had been used for a long time for the same purpose and under like conditions. But this question was fairly submitted to the jury, with proper instructions; the burden of proof having been placed upon the plaintiff to establish his cause of action. The court properly overruled the motion for a nonsuit. There certainly was evidence of negligence on the part of the defendant, and the plaintiff was entitled to the most favorable construction of it, upon such a motion. Brittain v. Westhall, 135 N.C. 492, 47 S.E. 616; Freeman v. Brown, 151 N.C. 111, 65 S.E. 743; Lloyd v. Railroad Co., 166 N.C. 24, 81 S.E. 1003. The court told the jury that, if the accident was due to a defect in the extension cord or in the socket, plaintiff could not recover, and they should answer the issue accordingly, but that if it was, on the contrary, due to a defect in the transformer caused by the negligence of the defendant, their verdict should be the other way. The charge was full, direct, and intelligible, and instructed the jury strictly in accordance with previous decisions of this court in like cases. Most of the charge, or at least a large part of it, was given at the request of the defendant, and covered the case in all material respects. There is therefore no ground for complaint left to the defendant as to this part of the charge, which was responsive to its own requests for instructions.
But it is stated that the court refused to give its third and thirteenth prayers. If the defendant was entitled to have them given as they were framed, which is doubtful, the court gave them substantially in its general charge, and the defendant received the full benefit of the principles of law they embodied. It is not required that they be given in their very language, but the judge can modify the phraseology and use his own language, provided he does not thereby weaken their legal force and effect. A substantial compliance with a request to charge is sufficient, as we have often held. Rencher v. Wynne, 86 N.C. 268; Graves v. Jackson, 150 N.C. 383, 64 S.E. 128. If the general charge of the court is examined with the utmost scrutiny, nothing will be found therein that militates against the law of the case. It was correctly and amply stated throughout.
But the defendant urges that if the injury was caused by a defect in the transformer, whereby a strong and deadly cur rent was sent into the foundry, even in violation of the stipulation of the contract that it should not exceed 119 volts, it has not been shown that the defective condition of the transformer was due to its negligence, as there is no evidence that it knew of such condition before the accident occurred and in time to prevent it. While there may be no evidence that it actually knew of it, there is some evidence that it should have known of it, and would have known of it, if it had exercised proper care and diligence in respect to it. There are two answers to this contention.
First. Where it appears on the trial of a case that a certain fact especially if defensive or exculpatory in its character, is peculiarly within the knowledge of the defendant, his failure to give to the jury the benefit of such knowledge, when, were the facts in his favor, he would naturally do so, is a sufficient circumstance to justify the inference that the fact is, in truth, against him, and, if he wishes to avoid this inference being made, he should proceed or go forward with his proof. McKelvey on Ev. p. 71, and cases in note 11. He is not concluded by his silence, but he leaves it open for the jury to decide the fact against...
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