Sloan v. J.G. White Engineering Co.

• Decision Date: 17 July 1916
• Docket Number: 9471.
• Parties: SLOAN v. J. G. WHITE ENGINEERING CO. ET AL.
• Court: South Carolina Supreme Court

89 S.E. 564

105 S.C. 226

SLOAN v. J. G. WHITE ENGINEERING CO. ET AL.

No. 9471.

Supreme Court of South Carolina

July 17, 1916

Hydrick and Fraser, JJ., dissenting in part.

Appeal from Common Pleas Circuit Court of Richland County; John S Wilson, Judge.

Action by Lizzie Sloan, administratrix, against the J. G. White Engineering Company and others. From a judgment for plaintiff, the named defendant and General Electric Company appeal. Affirmed.

The exceptions, referred to in the opinion, were as follows:

The J G. White Engineering Company and the General Electric Company presented the following exceptions:

I. His honor, the circuit judge, overruled defendants' motion for direction of verdict based on the ground that there was no evidence of actionable negligence adduced. This constituted error: (a) In that the evidence failed to show any negligence as alleged on the part of either of the defendants; (b) the only testimony to support the allegations of negligence was admittedly based upon one of several theories as to how the fatality might have occurred.

II. His honor, the circuit judge, overruled defendants' motion for a direction of verdict based on the ground that the only reasonable inference to be drawn from the entire evidence was that Frank A. Sloan came to his death by reason of an act of God. This constituted error, in that the only reasonable inference to be drawn from the evidence was that plaintiff's intestate came to his death by reason of a stroke of lightning which was the sole proximate cause thereof.

III. Each of the defendants appellants, on the grounds contained in the first and second exceptions hereinabove set out individually and severally charge error in the overruling of the motion to direct a verdict as to it.

IV. His honor charged plaintiff's eighth request, as follows "Eighth. I charge you that the plaintiff sets out that Sloan, plaintiff's intestate, came to his death from an electric current caused from lightning striking the wires and running over them into the substation and going through the body of Sloan, killing him. The answers of the defendants companies admitted that Sloan was killed by lightning passing over a wire and entering the building, but denied any acts of negligence on their part, and set up the defense that it was the act of God; and I am asked to charge you the following: An act of God is defined as any accident due to natural causes directly and exclusively without human intervention, such as could not have been prevented by any amount of foresight and pains and care reasonably to have been expected; and the defendant who invokes the act of God as a defense has the burden of proving, not only that the act of God caused the injury, but that it was the entire cause of the injury, and such injury could not have been prevented by the exercise of diligence, prudence, and reasonable care by the defendant; that prudence, diligence, and reasonable care means more than mere mechanical skill. It includes circumspection and foresight in regard to reasonably probable contingencies, and must be proportionate to the danger; that acts and occurrences which arise from negligence cannot be attributed to the act of God. Where the defense is negligence and such negligence combines and concurs in producing the injury, the master is nevertheless liable. As I have said before, the act of God must be the sole cause of the injury or death. I so charge you"--the error being: (a) That his Honor thereby charged that prudence, diligence, and reasonable care means more than mechanical skill, and he thereby instructed the jury that the use of mechanical skill was not ordinary care under the circumstances, thus substituting his own judgment for that of the jury and constituting a charge upon the facts; (b) that said charge held the defendants to a higher degree of proof to establish what constituted an act of God than the law requires.

A. That his honor, the circuit judge, erred in allowing the amendments proposed by counsel for plaintiff respondent to be incorporated in the case for appeal to the Supreme Court, because said amendments are unnecessary and irrelevant, and do not conform to the requirements fixed and established by the Supreme Court, and tend merely to confuse the issues and to enlarge the record on appeal.

The J. G. White Engineering Company, in addition to the exceptions above set forth, presented the following:

V. His honor charged plaintiff's second request as follows: "(2) I charge you that it is the duty of any corporation or person engaged in working near or in proximity to the employés of another person or company engaged in their duties to exercise such reasonable care as may be necessary under the circumstances as not to injure the employé of the other person or company, and if an employé of the other person or company is injured or killed by an act of negligence of its acts, then such person or corporation would be liable to the person injured or killed, unless he also contributed to his own injury as a direct and proximate cause thereof." This constituted error in that: (a) It made the J. G. White Engineering Company the insurer of the safety of plaintiff's intestate, whereas the law imposed upon it only the duty to observe reasonable care under the circumstances; (b) the said charge imposed upon the J. G. White Engineering Company the necessity of using not a reasonable degree of care, but an adequate degree of care to prevent the injury, which was a greater burden than the law requires under such circumstances.

VI. His honor, upon the objection of plaintiff's attorney, declined to allow the attorney for J. G. White Engineering Company to prove by witness E. W. Robertson that the real defendant in the case was the Columbia Railway, Gas & Electric Company, of which Mr. E. W. Robertson was president; the error being that his honor thereby declined to allow proof as to who was the real party in interest.

Barron, McKay, Frierson & Moffatt, Elliott & Herbert, and Lawson D. Melton, all of Columbia, for appellants.

W. Boyd Evans and Porter A. McMaster, both of Columbia, for respondent.

GAGE J.

Action for a tort to the person; recovery $12,500; appeal by the defendants.

The defendants were sued as joint tort-feasors for the electrocution of a young man named Sloan who came to his death under circumstances of so complex a character as to call for a rather long statement of them. A dam had been constructed across Broad river 25 miles north of Columbia, at a place called Parr Shoals, to create water power for the generation of electricity. Copper wires had been strung on steel towers from Parr Shoals toward Columbia, and having for the terminus at Columbia a power house at the foot of Gervais street. These copper wires are called the transmission line. The power house was constructed of steel, brick, and cement, and the interior of it was for the reception, the storing, and the distribution of electric power sent hither from Parr Shoals over the transmission line. The electric current from Parr Shoals had not been yet applied; the equipment therefor had not been completed. Somewhere betwixt Parr Shoals and Columbia, at the slaughter pen some 3 miles from Columbia, there was a break in the transmission lines; that is to say, the line was not yet continuous from Parr Shoals to Columbia. From the power house and towards the north which is towards Parr Shoals, there were several miles of continuous line. Just at the power house, on the northern side of it, the transmission line stopped short on the outer wall of the power house as is next described. On that side of the wall of the power house, and running through the wall, there were bushings. This appliance was set to receive the transmission wire and take it through the wall into the power house. The bushings projected some 24 inches beyond both the inner and outer walls, and preparatory to insertion in and through the bushings. The transmission line was coiled around the projecting bushings on the outer wall, and thus remained for several months before the accident. There was admittedly no grounding of the transmission line just at the power house. A witness for the defendants named Murphy testified that he grounded the transmission line at the second tower from the power house about 200 feet away; and a witness named Rossman testified the transmission line was grounded at the slaughter pen some few miles north of the power house, and also at the steel tower on the canal bank still nearer to the power house. The workman Sloan was on a scaffold inside the power house, near the bushings, and with his back to the inner wall, and his fellow workman Wilson was a few feet from Sloan and facing Sloan. These men were working for the General Electric Company, and were installing apparatus inside the power house. The transmission line was erected by the John G. White Company. A cloud suddenly gathered in the heavens in the vicinity of the power house, there was some thunder, a slight precipitation, a report as of a 22-caliber rifle, and the instantaneous electrocution by lightning of the worker Sloan.

The plaintiff asserts that lightning hit the transmission line; that there was insufficient grounding or no grounding of the line; that the lightning passed from the line coiled around the bushing into the wall of the power house, through the steel plates set in the wall into Sloan's body. The defendants assert that Sloan met his death by a freak of lightning and through no fault of theirs. And that is the case.

There are six exceptions to the proceedings had in the trial court; they will be reported. That set out last will be considered first.

1. The defendants offered a witness, E. W. Robertson, to prove that the ...