Stamey v. Rutherfordton Elec. Membership Corp.

• Decision Date: 31 January 1958
• Docket Number: No. 237,237
• Citation: 101 S.E.2d 814,247 N.C. 640
• Court: North Carolina Supreme Court
• Parties: Mrs. James R. STAMEY, Jr., Administratrix of the Estate of James R. Stamey, Jr., Deceased, v. RUTHERFORDTON ELECTRIC MEMBERSHIP CORPORATION, Defendant, and Brawley Construction Company, Additional Defendant.

Page 814

101 S.E.2d 814

247 N.C. 640

Mrs. James R. STAMEY, Jr., Administratrix of the Estate of James R. Stamey Jr., Deceased, v. RUTHERFORDTON ELECTRIC MEMBERSHIP CORPORATION, Defendant and Brawley Construction Company, Additional Defendant.

No. 237

Supreme Court of North Carolina.

Jan. 31, 1958

Carpenter & Webb, Charlotte, for defendant, appellant.

Carswell & Justice by James F. Justice and William H. Booe, Charlotte, for plaintiff, appellee.

PARKER, Justice.

In this Court the defendant Rutherfordton Electric Membership Corporation filed a demurrer ore tenus on the ground that the amended complaint does not state facts sufficient to constitute a cause of action. This it had a right to do. Lamm v. Crumpler, 233 N.C. 717, 65 S.E.2d 336. Defendant reduced its demurrer ore tenus to writing, and specified the grounds of objection to the amended complaint as follows: One, the amended complaint fails to state facts as to how, or by what means, one of the nonenergized and dead wires, which plaintiff's intestate was on a pole erecting, came in contact with the defendant's energized and live and uninsulated power line, causing a high voltage of electricity to be transmitted therefrom into the body of plaintiff's intestate proximately causing his injuries and death. Two, the amended complaint fils to state facts supporting the conclusion that defendant knew, or in the exercise of due care should have known, that at the time of plaintiff's intestate's injury its live transmission line was several feet from and in close proximity to the pole upon which plaintiff's intestate was working, 'which was the first occasion the plaintiff's intestate had been in close proximity to the energized and live current line. ' Three, the amended complaint fails to state facts supporting the conclusion that defendant knew, or in the exercise of due and ordinary care should have known, the several matters alleged in sub-paragraphs (a) through (g) of paragraph 12 of each cause of action. Four, 'While it affirmatively appears from the allegations of Paragraphs 5 and 6 of each cause of action that the plaintiff's intestate was the employee of an independent contractor doing work for this defendant, the Complaint does not set forth facts sufficient to bring the plaintiff's intestate within any exception to the general rule of law under which the defendant would not be liable to or responsible for employees of its independent contractor and the Complaint fails to set forth any facts from which it may be inferred that this defendant owed to the plaintiff or the plaintiff's intestate some legal duty, the breach of which proximately caused the injury to and death of the plaintiff's intestate.'

The allegations of negligence against the defendant are verbatim in both causes of action stated in the amended complaint. This is a summary of the amended complaint's allegations necessary to be set forth in passing on defendant's demurrer ore tenus: Defendant, a North Carolina corporation, at the time complained of was operating a private electrical power corporation, electrical power poles, and lines for transmission and sale of electrical power and current for profit. Defendant owned and controlled a power sub-station near Lincolnton, and poles and power lines at other locations from the sub-station, for the purpose of transmission and sale of electric power and current for a distance of about 20 miles to a point, and at a place near the Lincolnton-Newton Highway, and thence in a northerly direction to other places. At the place in question defendant transmitted electrical power and current over its line to the extent of 7,200 volts. Defendant entered into an independent contract with Brawley Construction Company --hereafter called Brawley--to erect certain poles and nonenergized or dead lines for it on a new course, which passed near the energized and live power line of defendant at the place in question. Plaintiff's intestate was an employee and servant of Brawley, and at all times was keeping a proper lookout and exercising due care for his own safety. Defendant had control and dominion over the power lines and poles, and property upon which they were located. About 3:00 o'clock p. m. on 22 February 1956 plaintiff's intestate was on one of the power line poles, and engaged in his duties as a groundman and employee for Brawley in the erection of the nonenergized power line. 'The defendant corporation's energized and live and uninsulated power line containing approximately 7,200 volts was several feet from and in close proximity to the pole upon which plaintiff's intestate was working in connection with the erection of the nonenergized and 'dead' line, which was the first occasion the plaintiff's intestate had been in close proximity to the energized and 'live' current line, all of which was known or in the exercise of due care should have been known to the defendant corporation. On the occasion in question, while the plaintiff's intestate was on the pole engaged in assisting with the erection of the nonenergized and 'dead' line, one of the nonenergized and 'dead' wires came in contact with the defendant corporation's energized and 'live' and uninsulated power line, causing a high voltage of current and electricity to be transmitted from the defendant corporation's energized and 'live' and uninsulated wire into the body of the plaintiff's intestate which proximately caused and resulted in injuries to and the death of the plaintiff's intestate.'

The allegations in paragraph 12 of each cause of action stated in the amended complaint are in exactly the same words. In these paragraphs plaintiff alleges that the injuries to, and death of, her intestate were proximately caused by the negligence of the appealing defendant, and sets forth the alleged negligence in nine sub-paragraphs, which are to this effect: Defendant negligently failed to cut off the high voltage of electrical current in its live wire, and negligently permitted its live wire to remain in an exposed condition, and uninsulated, in close proximity to the work being done by plaintiff's intestate as a groundman, and others, when it knew, or in the exercise of due care should have known that this was highly dangerous under the existing conditions. Defendant negligently failed to place warning signs on its live wires, to give warning and notice of its live wire, and to guard its live wire, at the place where the nonenergized line was being constructed by plaintiff's intestate who was a groundman, and not an accomplished lineman, when it knew, or in the exercise of due care should have known, that the work of plaintiff's intestate was highly dangerous and unsafe under the existing conditions, and plaintiff's intestate was likely to come in contact with the live wire. Defendant negligently failed to erect and maintain a sufficient...