Kiser v. . Power Co. , 216 N.C. 698 ( 1940 )

BARNHILL, J., dissenting.

WINBORNE, J., concurs in dissent. Civil action to recover damages for death of plaintiff's intestate alleged to have been caused by the neglect, default or wrongful act of the defendant.

The defendant furnishes electricity to the home of A. J. Cox in Asheboro. On the afternoon of 10 July, 1937, an electrical storm caused one of the wires in the conduit to burn in two and resulted in a stoppage of the flow of current into the customer's house. The conduit is attached to the outer wall of the house. Complaint was made to the defendant's Asheboro office, and a Mr. Wham responded to the call. Upon investigation he found the facts as above stated, disconnected the wires by pulling the end of the melted wire from the cable and tying it back so that no current could be transmitted to the house wiring system, informed Mr. Cox that he would have to employ an electrician to make the necessary repairs, and on being asked by the customer if he could have lights that night, stated that after the repairs had been made, upon notice to the company "they would be glad to come down and reconnect the service." No such notice was given and the defendant did not reconnect the service, which was permitted to be done only by one of its agents.

The customer engaged an electrical contractor of Asheboro to make the repairs. Baxter Elliott was sent to do the work. Instead of pulling new wires through the conduit, as would have been proper, Elliott circumvented the conduit with two temporary wires and connected these to the wires of the defendant, which he should not have done. Not only this. He crossed the wires which resulted in energizing the metal armor of the BX cable attached to the bottom of the floor joist.

On the afternoon of 17 July, 1937, Leon Kiser, a child four years of age and grandchild of A. J. Cox, while under the house, came in contact with this energized metal armor of the BX cable and was electrocuted.

The case was submitted to the jury on plaintiff's allegation of negligence that the defendant knew or in the exercise of reasonable care should have known the current had been cut back into the house wiring system and failed to make due inspection thereof before the injury.

From a verdict for the plaintiff, assessing damages at $1,500, the defendant appeals, assigning errors. Defendant disconnected A. J. Cox' electrical service following a storm on the afternoon of 10 July, 1937, informed him that his house wiring system needed repair, suggested that he employ an electrician to place it in proper condition, and promised to reconnect the service upon receipt of notice that the repairs had been made. The customer asked if he could have lights that night. No further communication was had between the power company and its customer until the afternoon of 17 July, 1937, when the company was informed that its customer's grandchild had been electrocuted while under the house.

The jury has found, upon full consideration of the evidence, that the proximate cause of plaintiff's intestate's death was the failure of the defendant to make due inspection of its service under the circumstances disclosed by the record. We cannot say there was error in submitting the case to the jury on this theory. Small v. Utilities Co., 200 N.C. 719,158 S.E. 385.

A high degree of foresight is required of the defendant because of the character and behavior of electricity which it generates and sells. Shaw v.Public-Service Corp., 168 N.C. 611, 84 S.E. 1010. The defendant's knowledge of its service is supposedly superior to that of its customer's. It is not unreasonable, therefore, in view of the dangerous character of the product, to require the "utmost diligence and foresight in the construction, maintenance, and inspection of its plant, wires, and appliances, consistent with the practical operation of the business."Turner v. Power Co., 167 N.C. 630, 83 S.E. 744. The care required must be commensurate with the dangers incident to the business. And so the law is written. Haynes v. Gas Co., 114 N.C. 203, 19 S.E. 344.

The negligence of Baxter Elliott was not such as to insulate the negligence of the defendant as a matter of law. Quinn v. R. R., 213 N.C. 48,195 S.E. 85. The defendant's liability is predicated upon its failure to inspect its wires within a reasonable time. It knew that Cox was a regular user of its service. This had been interrupted, the defendant called, and with full knowledge of the facts, including the customer's desire to have the service restored immediately, the matter was allowed to go for seven days without further inquiry or attention on the part of the defendant. Under the circumstances, we think the question of due care was for the jury. What is due care is to be determined by the exigencies of the occasion. Diamond v. Service Stores, 211 N.C. 632, 191 S.E. 358.

It is true, the customer was to notify the defendant when the repairs to the house wiring system had been made, so that the service could be reconnected by the defendant, but this was not done. The defendant must have known, or in the exercise of a high degree of care should have known, according to the jury's finding, that the service had been restored in some way by the electrician called by the customer. With knowledge of this fact, actual or implied, the duty of inspection immediately devolved upon the defendant, as such restoration was contrary to its rules.

The conclusion results that the verdict and judgment should be upheld.

No error.