Lundy v. Telephone Co. , 90 S.C. 25 ( 1911 )

November 13, 1911. The opinion of the Court was delivered by This is an action, by administratrix of the estate of Charles Lundy, deceased, for damages on account of the death of her husband, Charles Lundy, alleged to have been caused by the joint and concurrent negligence, recklessness, wilfulness, and wantonness of the defendants.

The complaint alleges, that the defendants at the time hereinafter mentioned, were corporations doing business in the city of Columbia and respectively owning and maintaining plants, poles and wires, suspended on poles therein.

That on or about the 11th day of June, 1908, the defendants carelessly, negligently, wilfully and wantonly, had failed to properly and safely insulate their respective wires, and to inspect the same and to keep the same, in proper and safe condition, and carelessly, negligently, recklessly wilfully and wantonly, had suffered their respective wires to cross and come in contact with each other, and by rubbing against each other, to wear away the insulation thereon, whereby, on or about the 11th day of June, 1908, and while the said Charles Lundy in the performance of his duties, was on one of the poles of the said Southern Bell Telephone Telegraph Company on Main street in said city, and when he came in contact with a wire or wires, of the said Southern Bell Telephone Telegraph Company, a powerful, dangerous and deadly current of electricity passed, and was conducted from the wire or wires of the said The Columbia Electric Street Railway Light and Power Company, along through and over the said wire or wires, of the said Southern Bell Telephone Telegraph Company, with which the said Charles Lundy was in contact, and into the body of the said Charles Lundy, whereby he received a fatal shock.

That the duties the said Charles Lundy was then performing, were the arrangement and the working with, or on certain lines or wires of the city of Columbia, connected, or to be connected with the said poles of the said defendant Southern Bell Telephone Telegraph Company, and that said duties were being performed for the city of Columbia.

The defendants denied the allegations of negligence and intentional wrong, and set up the defenses of contributory negligence and assumption of risk.

The jury rendered a verdict in favor of the plaintiff, against the defendant Southern Bell Telephone Telegraph Company, for twenty thousand dollars, and the said defendant appealed upon exceptions which will be reported.

We proceed to consider the exceptions.

First and Second Exceptions: These exceptions were not argued by the appellant's attorneys, and must be considered as being withdrawn.

Third and Fourth Exceptions: These exceptions assign error on the part of his Honor, the presiding Judge, in refusing to allow the defendant telephone company, to introduce in evidence certain papers, entitled: "Notice to All Employees," which the signature of Charles Lundy showed, had been received by him several years previously, while he was in the employment of the telephone company. The papers were offered for the purpose of showing, that Charles Lundy had knowledge that it was dangerous to handle electric wires. Even conceding that the ruling was erroneous, it was not prejudicial, as the testimony showed, that Lundy was an experienced lineman, and there was other testimony to the effect, that Lundy had knowledge of the facts, which the papers were intended to prove.

Fifth Exception: Assignment of error "(a)," cannot be sustained, for the reason that the charge in this respect, even if erroneous, was not prejudicial to the rights of the appellant. Nor can assignment of error "(b)" be sustained, as the charge in this respect, must be considered in connection with the entire charge, when it will be seen, that the presiding Judge instructed the jury, that the telephone company was not liable, unless its negligence was the proximate cause of the injury sustained.

Sixth Exception: It is axiomatic, that the caution which and ordinarily prudent man is bound to exercise, in the operation of dangerous instrumentalities, must be greater than in those cases, not attended with danger. And, as electric wires in streets are liable to become exceedingly dangerous, unless properly guarded, it necessarily follows, that those operating such appliances, are required to exercise a very high degree of care in their construction, repair, inspection and maintenance, in order to prevent injury to others. Parsons v. Electric Co., 69 S.C. 305,48 S.E. 284.

Seventh Exception: This charge eliminated, from the consideration of the jury, the question whether there was negligence on the part of the telephone company, in suspending the wires.

If the wires were properly suspended, then their breaking or falling, whereby they became charged with a dangerous current of electricity, from wires underneath, would not render the telephone company liable for an injury resulting therefrom, in the absence of negligence on its part.

Negligence is a mixed question of law and fact. It is the duty of the Court to define negligence, but it is the province of the jury to determine, whether it exists in a particular case.

The charge of the presiding Judge was at variance with the rule thus stated in the case of Parsons v. Electric Co.,69 S.C. 305: "The extent to which wires conveying deadly electric currents should be insulated or otherwise guarded,must be decided by the jury, under the facts of each case."

Under the said charge, it is hardly conceivable, how the jury could have rendered any verdict, except for the plaintiff, as they were not permitted to consider the question of negligence.

This exception is sustained.

Eighth Exception: So much of the request as is set out in the exception, is an exact reproduction of the language of the Court, in the case of Parsons v.Electric Co., 69 S.C. 305, 48 S.E. 284, and this exception is overruled.

Ninth Exception: The presiding Judge properly refused the request on the ground that it embodied a charge on the facts. Weaver v. Ry., 76 S.C. 49; 56 S.E. 657;Martin v. Ry., 84 S.C. 568, 66 S.E. 993; Turbyfill v. Ry., 86 S.C. 395, 68 S.E. 687; Finch v. Ry.,87 S.C. 190.

Tenth Exception: In refusing the request mentioned in this exception, the presiding Judge assigned the following reasons: "Now, the sixth request I refuse to charge you, because that request distinctly sets forth the relation of employee, which is the law that governs master and servant. The first request which I charge you, did not have any reference to employee or master and servant; the sixth does; I do not think the sixth is applicable to this case." These reasons show that the request was properly refused. Eleventh Exception: As this case must be remanded for a new trial, we deem it advisable not to comment upon the testimony, but merely to state, that there was testimony tending to show, that the plaintiff was entitled to punitive damages. Besides, even though no particular fact may be sufficient alone, to show that the plaintiff was entitled to punitive damages, nevertheless, when considered together, they may have that effect. Railroad v.Partlow, 14 Rich. 237; Dantzler v. Cox, 75 S.C. 334,55 S.E. 774; Wertz v. Ry., 76 S.C. 388; Rhodes v. CottonMills, 87 S.C. 18.

Twelfth Exception: In the case of Parsons v. ElectricCo., 68 S.C. 305, the Court uses this language: "The rule as to the degree of care in the use of electricity, is the same as in the use of steam and other agencies — the care must be proportionate to the danger. In determining the danger, it is the duty of those in control, to have in view all the surroundings, including the contiguity of other wires, and their liability to fall and come in contact, with the dangerously charged wires. As said by the Supreme Court of New Jersey in Anderson v. Jersey CityElectric Light Co., 43 A. 655: `Care in this sense means more than mere mechanical skill; it includes circumspection and foresight with regard to reasonably probable contingencies.' The failure to adopt all usual appliances and methods, to prevent contact and hurtful discharge of the current through another wire, is a breach of duty to the public. This view is supported by the almost broken current of authority." (Citing numerous cases.)

A telegraph or telephone company, is not liable in damages for injuries sustained by persons coming in contact with its wires unless it was guilty of negligence, which may be defined as the failure to exercise that degree of care, which a person of ordinary intelligence and prudence might reasonably be expected to exercise, under the circumstances of this particular case.

While it is true, that a telegraph or telephone company, is only bound to exercise ordinary care, nevertheless a person of ordinary intelligence and prudence is expected to use greater caution, in dealing with very dangerous instrumentalities, than in those cases, where there is less danger.

Questions of negligence arising in cases, where injuries have been sustained, through contact with electric wires in the streets, are to be determined like all other questions of negligence, by the jury, upon the facts in the particular case, unless they are only susceptible of one inference.

Therefore, when the presiding Judge charged that it was the duty of a telegraph or telephone company, to keep its wires perfectly insulated, and that it must exercise theutmost care to keep them in that condition, he not only invaded the province of the jury, but required of the telegraph or telephone company, a greater degree of care, than the law imposes in such cases.

This exception is therefore sustained.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded to that Court for a new trial.

MR. JUSTICE HYDRICK. I concur in the opinion of Mr. Justice Gary, except as to the disposition of the ninth exception. I am unable to see wherein the defendants' fourth request embodies a charge upon the facts. But there was no prejudicial or reversible error in refusing the request, because substantially the same instruction as is therein requested was given to the jury in other parts of the charge.