{ "id": 8627791, "name": "CHARLES F. MURPHY, Administrator of WEAVER MURPHY, v. CAROLINA POWER AND LIGHT COMPANY", "name_abbreviation": "Murphy v. Carolina Power & Light Co.", "decision_date": "1929-01-09", "docket_number": "", "first_page": "484", "last_page": "494", "citations": [ { "type": "official", "cite": "196 N.C. 484" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "125 N. C., 83", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272955 ], "opinion_index": 0, "case_paths": [ "/nc/125/0083-01" ] }, { "cite": "174 N. C., 237", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "140 N. C., 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652171 ], "opinion_index": 0, "case_paths": [ "/nc/140/0407-01" ] }, { "cite": "193 N. C., 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217692 ], "opinion_index": 0, "case_paths": [ "/nc/193/0428-01" ] }, { "cite": "183 N. C., 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656651 ], "opinion_index": 0, "case_paths": [ "/nc/183/0438-01" ] }, { "cite": "160 N. C., 196", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270965 ], "opinion_index": 0, "case_paths": [ "/nc/160/0196-01" ] }, { "cite": "195 N. C., 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631574 ], "opinion_index": 0, "case_paths": [ "/nc/195/0699-01" ] }, { "cite": "195 N. C., 788", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632141 ], "opinion_index": 0, "case_paths": [ "/nc/195/0788-01" ] }, { "cite": "192 N. C., 784", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626902 ], "opinion_index": 0, "case_paths": [ "/nc/192/0784-01" ] }, { "cite": "189 N. C., 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654318 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/189/0381-01" ] }, { "cite": "187 N. C., 839", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "168 N. C., 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661890 ], "opinion_index": 0, "case_paths": [ "/nc/168/0611-01" ] }, { "cite": "154 N. C., 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651895 ], "opinion_index": 0, "case_paths": [ "/nc/154/0131-01" ] }, { "cite": "129 N. C., 169", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "114 N. C., 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649694 ], "opinion_index": 0, "case_paths": [ "/nc/114/0203-01" ] } ], "analysis": { "cardinality": 1121, "char_count": 28856, "ocr_confidence": 0.462, "pagerank": { "raw": 1.260903623445754e-07, "percentile": 0.6124357057110279 }, "sha256": "e8829399ccd46a63e18dae65add5bd1c2c48822901641ed711aa7179711615bf", "simhash": "1:e1d6e5a25bbee0fa", "word_count": 5276 }, "last_updated": "2023-07-14T19:28:30.620798+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHARLES F. MURPHY, Administrator of WEAVER MURPHY, v. CAROLINA POWER AND LIGHT COMPANY." ], "opinions": [ { "text": "ClabksoN, J.\nOne Eogers, a witness for plaintiff, was asked the following question: \u201cDid you have any conversation with any of them, and, if so, what did they say?\u201d A. \u201cOne of the gentlemen said to me, \u2018Did it burn much?\u2019 and I said, \u2018You would have thought it burned if you could have heard it popping and cracking,\u2019 and they said, \u2018I don\u2019t think there is any danger now, we have fixed it back.\u2019 That is all we said.\u201d Defendant contends this was error. We cannot so hold. This conversation took place five or ten minutes after the repair force had fixed the power line and before the repair force had gotten back in the truck that they came in, and while the witness was nearby looking at what was being done by the repair force.\nAll the evidence, on this aspect, was to the effect that it burned and there was popping and cracking. It was a matter of sight and common knowledge that when the wires charged with electric current were stretched high above the fence, which the witness saw the repair force do, that there would be no danger. The superintendent of the line, a witness for plaintiff, stated if the wires should be near to a wire fence over which it passed it would have electrified it without being in contact with it, and that is what is called \u201cinduced current.\u201d All the evidence was to the effect that the power line was out of repair. Mr. Beeves testified, \u201cShe said, \u2018It is that power line down,\u2019 and I stepped out in the yard where I could see and I said, \u20187es, it is a wire down/ \u201d The telephone operator at Leicester was immediately called up and told that the line was down. The telephone operator' notified defendant, \u201cI\u2018 told them I had heen notified that they had a ivire down on New-found, and they said they would send a man right out \u2014 that was something along about the noon hour.\u201d U. F. Ford testified: \u201cI was there in the road loading logs there and this line was down over there in the field, at this post, and Mr. Clark there and his force came up and fixed the line up while I was loading the logs there, and came back and got in the truck and went off. It was about three o\u2019clock.\u201d We can see nothing prejudicial in the question and answer from the facts disclosed by this record. The company knew its line was down and dangerous, and sent men out to fix it, which they did.\nThe cases cited and the principle of res gestee invoked by the defendant are not applicable. We may say that the observation in 10 K. C. L., p. 975, has a bearing: \u201cIt is not easy always to determine when a declaration is a part of the res gestoe. It is dependent upon the particular circumstances under which the declaration is made. The courts recognize the difficulty of laying upon this subject a rule that may be applied in every case. The tendency of recent adjudications is to extend rather than to narrow the scope of the introduction of evidence as part of the res gestee.\"\nA witness, Robt. S. Shook, was asked, \u201cDid you notice his body? Describe his appearance \u2014 the body of the child.\u201d A. \u201cHis hands were gripped that way (indicating), and we had to pull them open to see the inside of the hands. They were burned and scorched and scars on his neck and one little one up here, and on this hip here down almost on that, was a place bigger than my hand \u2014 just looked cooked \u2014 the flesh was just cooked at three or four places on the back of his shoulder, back here \u2014 just different places.\u201d\nThe defendant, at the time, objected that in view of the admissions in this case that it was not material. Similar evidence of the boy\u2019s father was introduced by plaintiff without objection. The testimony tended to show how excessive and deadly the voltage was. Defendant contends this was error. \"We cannot so hold. McAllister v. Pryor, 187 N. C., at p. 839.\nIn Ellis v. Power Co., 193 N. C., at pp. 361-2, it is said: \u201cThose who are engaged in the electric business are held by the courts to the highest degree of care in the manufacture, distribution, maintenance and inspection. . . . Electric power is an industry-producing agency, and the hydro-electric development has been one of the greatest factors in the State\u2019s progress, and especially its industrial expansion. Every legitimate encouragement should be given to its manufacture and distribution for use by public utility corporations, manufacturing plants, homes and elsewhere. On the other hand, the highest degree of care should be required in the manufacture and distribution of this deadly energy and in the maintenance and inspection of the instrumentalities and appliances used in transmitting this invisible and subtle power.\u201d\n\u201cThe maxim res ipsa loquitur applies in many cases, for the affair speaks for itself. It is not that in any case negligence can be assumed from the mere fact of an accident and an injury, but in these cases the surrounding circumstances which are necessarily brought into view, by showing how the accident occurred, contain without further proof sufficient evidence of the defendant\u2019s duty and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof that the injured person is able to offer or that it is necessary to offer. Sher. and Redf., on Negl., sec. 59; Shaw v. Public-Service Corp., 168 N. C., p. 618.\u201d O\u2019Brien v. Parks Cramer Co., ante, 359. It is well settled from tbe facts here disclosed that the principle of res ipsa loquitur applies.\nThe matter has been so thoroughly considered in this jurisdiction that we refer to some of the cases on the subject: Haynes v. Gas Co., 114 N. C., 203; Mitchell v. Electric Co., 129 N. C., 169; Turner v. Power Co., 154 N. C., 131; Shaw v. Public-Service Corp., 168 N. C., 611; McAllister v. Pryor, 187 N. C., 839; Graham v. Power Co., 189 N. C., 381; Helms v. Power Co., 192 N. C., 784; Ramsey v. Power Co., 195 N. C., 788; O\u2019Brien v. Parks Cramer Co., supra.\nOutside of the principle of res ipsa loquitur, which applies, defendant was notified about the defect about a quarter to 12 o\u2019clock. (1) Defendant was notified before 12 o\u2019clock, and from the evidence had ample time to come and repair the power line that transmitted this dangerous and subtle power that was \u201cpopping and cracking\u201d before the boy was electrocuted. He was sent to the store by his father after 1 o\u2019clock. (2) H. A. Ballard, the maintenance superintendent, testified: \u201cThis disconnect of theirs is controlled by one pull of the handle; three switches are pulled out at once, as I remember it; the operator would have to go one hundred feet and cut the power off by pulling a lever.\u201d S. A. Johnson, superintendent, testified: \u201cIt would take about a half minute to cut off the power on that line after receiving notice of trouble on it; that kills the line.\u201d\nThe lad was 13 years of age. In a case of this kind, plaintiff\u2019s intestate was not guilty of contributory negligence. Graham v. Power Co., 189 N. C., 381, and cases cited. See Brown v. R. R., 195 N. C., 699. Defendant failed to plead contributory negligence. It was not entitled to the issue. C. S., 523. Fleming v, R. R., 160 N. C., 196; Moore v. Chicago Bridge, etc., Works, 183 N. C., 438.\nIt may be noted that the exceptions to the charge do not comply with the rules. Rawls v. Lupton, 193 N. C., 428. If our brethren at the bar will examine that case they can readily make up a. case on appeal to this Court in accordance with the well settled rules.\nWe do not think there is any error in the charge, and it complies with C. S., 564. The court below defined, in accordance with all the authorities, the law of negligence, proximate cause and damages. The contentions were fairly given on both sides. The case is not complicated as to the law or facts. The jurors are presumed to be men of \u201cgood moral character and sufficient intelligence.\u201d\nIn Alexander v. Cedar Works, 177 N. C., at p. 149, it is said: \u201cIf the instructions of the court to the jury were not sufficiently full and explicit, or plaintiffs desired any particular phase of the ease to be stated, they should have submitted a special request for what they wanted. Simmons v. Davenport, 140 N. C., 407; Potato Co. v. Jeanette, 174 N. C., 237.\u201d Davis v. Long, 189 N. C., at p. 137; O\u2019Brien v. Parks Cramer Co., supra.\nThe defendant complains of the amount of the verdict \u2014 the value of the life of the boy, as fixed by the jury. The court below refused in its discretion to set the verdict aside and grant a new trial.\nIn Hyatt v. McCoy, 194 N. C., at p. 762, it is said, quoting numerous authorities: \u201cIt is provided by statute that the judge who tries the cause may in his discretion entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial . . . for excessive damages (C. S., 591); and it has been said \u2018That there is no reason which can be advanced in favor of setting aside verdicts because of excessive damages which does not apply to setting aside for inadequacy of damages.\u2019 Benton v. Collins, 125 N. C., 83. So it has been held in a number of cases that to set aside a verdict and to grant a new trial for excessive or inadequate damages is, as a rule, the irreviewable right of the presiding judge.\u201d\nIn the present case defendant did not make a motion for judgment as in case of nonsuit at the close of plaintiff\u2019s evidence nor at the close of all the evidence, that the evidence was not sufficient to be submitted to the jury, under C. S., 567. The law is well settled by numerous authorities that the matter is waived as to the insufficiency of the evidence to be submitted to the jury on the question of negligence.\nIn Nowell v. Basnight, 185 N. C., at p. 148: \u201cIf the first motion is overruled, the defendant-may except and go to the jury; or except, introduce evidence and renew motion after all the evidence. . . . Exception is waived if motion is not renewed (citing authorities).\u201d In the above case the change of practice, under C. S., 567, is lucidly discussed by Walker, J. On the whole record we can find\nNo error.", "type": "majority", "author": "ClabksoN, J." } ], "attorneys": [ "Wells, Blackstock & Taylor and J. B. Swain for plaintiff.", "Martin & Martin and Rollins & Smothers for defendant." ], "corrections": "", "head_matter": "CHARLES F. MURPHY, Administrator of WEAVER MURPHY, v. CAROLINA POWER AND LIGHT COMPANY.\n(Filed 9 January, 1929.)\n1. Electricity \u2014 Liability for Injuries Caused Thereby \u2014 Evidence of Negligence. .\nWhere there is evidence tending to show that the plaintiff\u2019s intestate was killed by catching hold of a wire fence to which a high voltage of electricity has been transmitted by induction from a heavily charged wire of the defendant negligently coming in close proximity with it, that the intestate was badly burned on his hands and body with other evidence of burning along the fence: Held,, not prejudicial error to defendant for plaintiff\u2019s witness to testify that as defendant\u2019s employees were finishing making the place safe he told them in response to their inquiry that if they had heard it \u201cpopping and cracking\u201d they would have thought it had burned much, there being other evidence to that effect.\n2. Same \u2014 Res Ipsa Loquitur.\nThe doctrine of res ipsa, loquitur applies when the evidence discloses that the plaintiff\u2019s intestate, a thirteen-year-old boy, was killed by a deadly voltage of electricity from a wire fence, with further evidence that the wire fence was charged by an induced current caused by a heavily charged transmission wire coming in close proximity thereto.\n3. Same \u2014 Nonsuit.\nEvidence tending to show that the plaintiff\u2019s intestate, a lad thirteen years of age, and being where he had a right to be, was killed by a high voltage of electricity from the defendant\u2019s transmission wire, that the defendant had been notified in time to cut off the current, which under the circumstances could have been done in a .very short time, and the injury, subsequently occurring, could have been thus avoided, is sufficient to take the case to the jury upon the actionable negligence of the defendant in causing the death, and under the facts of this case, contributory negligence does not arise.\n4. Trial \u2014 Instructions\u2014Requests for Instructions.\nWhere the instructions of the court fully and substantially cover the law of the case, the plaintiff must submit special requests for instructions on any particular phase of the evidence he may desire instructions.\n5. Appeal and Error \u2014 Review \u2014 Discretion of Court \u2014 Setting Aside Verdict for-Excessive or Inadequate Damages.\nA motion to set aside a verdict for excessive damages is addressed to the sound legal discretion of the trial judge and is not reviewable on appeal.\n6. Tidal \u2014 Talcing Case or Question Prom Jury \u2014 Nonsuit \u2014 AVaiver \u2014 Motions.\nA defendant to an action waives his right to object to the sufficiency of the evidence by not making a motion as of nonsuit at the close of the plaintiff\u2019s evidence and renewing the motion at the close of all the evidence in the case.\nAppeal by defendant from H. Hoyle Sink, Special Judge, and a jury, at Ma.y Special Term, 1928, of BtjNcombe.\nNo error.\nThis is an action for actionable negligence brought by Charles F. Murphy, administrator of \"Weaver Murphy, for the death of his son, Weaver Murphy.\nDefendant is engaged in the business of furnishing and selling electricity. One of its principal places of business is in Asheville, N. C., and the electric current is transmitted over its power lines to the surrounding section. There was a power line of defendant company running through the Newfound section in Buncombe County, N. C. Charles F. Murphy lived in that section and farmed, and the Power Company\u2019s lines ran through the farm he leased. He was also deputy fire warden. He had a son, the deceased, Weaver Murphy, 13 years of age. He was going to school while in session. He was \u201cbright in his books, learned quickly,\u201d physically good and obedient. The boy had been told if he happened to see any fire to go to it and control it, and if necessary to call in others. On 2*7 April, a few minutes after 1 o\u2019clock p.m., his father sent him to a store some half a mile away to get some fence staples and nails. His son did dot return, and the father went and searched for him. His father testified: \u201cI found him hanging to a wire fence; he was dead; it was 1:30 p.m., when I found him clinging to a wire fence; he had hold of the wire with his right hand underneath, and on top. with his left hand, and he took hold of it like a man would to bring it down to crawl through it, and he had a tight grip on it. I pulled his hands loose from the wire with my hands; his body was apparently cold. I found burns on him and his clothes were burned pretty bad. When I pulled his hands loose from the wires, it pulled some of the skin off his Hands and left the skin on the wire; his hands were burned all right. Where I found the boy there was some burns about the side of his face and his hip where he laid against the fence and the shoulder which was next to the wire was burned pretty bad. The shrubbery all along the wire was burned off and killed, and then there was some beyond where he was found burned and killed. ... I didn\u2019t know why he would go over there unless he went to see about the fire. I didn\u2019t send him over there at all, but I supposed he went there. There was fire over there in the edge of the woods. You could see the smoke from that fire from the road the little boy went along as he went to the store.\u201d\nOne Reeves testified: \u201cI came something like fifteen minutes of 12 o\u2019clock for dinner, and was washing and my wife was in the kitchen there and said, What is that making that fuss?\u2019 The wire had come down. I said, 'Sounds like an airplane.\u2019 I couldn\u2019t see it. She said, 'Come here, there is something on fire.\u2019 She said, 'It is that power line down,\u2019 and I stepped out in the yard where I could see and I said, 'Yes, it is a wire down,\u2019 and I said, \u2018You go and call the Power Company,\u2019 and she said, \u2018I don\u2019t know who to call,\u2019 and I said, 'Call the operator at Leicester; she can call them, and tell them to cut off the line. It is burning up things there.\u2019 \u201d\nQ. \u201cIs this the lady that was the switchboard operator at Leicester?\u201d A. \u201cYes, sir. She tried to call her and said the phone was popping and cracking so she couldn\u2019t handle it. I said I would try and get Mrs. Brooks to understand the power line was down, and for them to cut it off, it was dangerous; my cows were in the field. My clock said fifteen .minutes to twelve when I used the phone \u2014 phoned Leicester; there is a pihone line at Leicester that connects with Asheville; that phone line was taken care of that evening some time. I don\u2019t know what time it was repaired. I did not see the men come out there. It was about twenty minutes of two o\u2019clock, and it was still popping and cracking\u2014 that\u2019s by my clock.\u201d\nMi\u2019s. L. C. Brooks testified: \u201cIn my home he (\"Weaver Murphy) was nice and polite, and seemed all right in every way. His physical appearance was good. I would think he was fairly well developed for a boy of that age. I operated the switchboard at Leicester a.t the time of his death. There is a telephone line extending up the Newfound section; there was a line went into the home of Mr. Reeves. I remember Mr. Reeves calling me, but at that time I had already called the power trouble. . . . He said tbe line was down, and I called them and told them they had a line down. I called to the Power and Light Company here in the city. I got connection with them. The first time I called I told them I had a line out of order \u2014 a telephone line out of order \u2014 caused by the power line; it caused my line to be out of order. The next time I called I told them I had been notified that they had a wire down on Newfound' \u2014 an electric wire down on Newfound \u2014 and they said they would send a man right out. That was somewhere along about noon hour; it was somewhere around the middle of the afternoon that the trouble cleared up some. ... Of course it didn\u2019t get clear the whole afternoon. ... It was just a few minutes after I got this information until I got the Power Company \u2014 just as soon as I could call the Asheville operator and she got me a connection with the Electric Company men with a man on the line; it was just a few minutes before Mr. Beeves called that I saw this trouble and phoned them. I went on the line and thought some one was calling me and discovered the trouble. I got a reply from the Power Company that they would send a man out immediately. . . . This was in the Newfound section. I again called the Power Company after Mr. Eeeves called me. I told them I had been notified they had a wire down on the Newfound line I had called about. I didn\u2019t know the first time what the trouble was. I told them I had a line out of order, caused by the power line. I don\u2019t know who I talked with when I first called. I never do ask who answers the phone since they have the number changed. I asked for the trouble man; at that time they had no switchboard; I called for the trouble man. I have always done that since I have been calling the electric people.\u201d\nH. A. Ballard, maintenance superintendent of defendant, testified: \u201cI am not familiar with the survey of the Canton line \u2014 the line that runs out Newfound to Canton. That line was built for 44,000 voltage. The line ordinarily carried 44,000. I couldn\u2019t say that I was familiar with the place where the switch is on that line. I know we have disconnections in the Weaver section, as it is known in the Carolina Power Company. They have disconnections on the line, but I don\u2019t know how many. There is a power station. I know where it is. This power can be taken off by a disconnect. I don\u2019t know whether they have an oil switch on their line or not at that time, but I think they have. This disconnection of theirs is controlled by one pull of the handle; three switches are pulled out at once, as I remember it. The operator would have to go one hundred feet and cut the power off by pulling a lever.\u201d\nJ. B. Eogers testified: \u201cI was plowing on the north side of the creek right opposite where the boy was killed, or where the wire was down. I heard a noise, and it was sort of cloudy and the wind blowing a little, and I thought probably tbe lightning struck the wire; it kept crackling and popping, and I noticed the sparks flying, and I went on with the plowing, and a little later on I beard it again. I know where this pole that has been spoken o\u00a3 by the witnesses is. It is pretty close to the cross fence. I wouldn\u2019t say exactly how close, but pretty near the fence. The fence is a wire fence tacked on the post. -This high voltage wire that has been spoken of hung right over that wire fence. I first began to hear this popping somewhere near two o\u2019clock. It was after I went out to my work. I didn\u2019t notice exactly what time. I saw some sparks and smoke \u2014 sparks going from the wires and places catching on the fence \u2014 and I also saw some smoke up near the edge of the woods. I don\u2019t think the woods were set afire. There were leaves burned and just some rotten logs by the fence. . . .\n(This witness went with Chas. E. Murphy and found the boy about 7:30.)\n\u201cI went along down the fence ever so far, and directly I discovered the boy hanging up on the fence with his hands to the fence \u2014 fell back \u25a0 against it. . '. . Afterwards I was over there and noticed some of those wires looked like they had been melted and burned with some kind of heat. I saw some shrubbery and bushes scorched. I found them on both lines. I would think it was right around three o\u2019clock when I saw some men come there; maybe a little later; I wouldn\u2019t take no less. The first I noticed of them they ran up there near the burning and stopped the truck. I didn\u2019t know .who they were until after they got done and started through the field. I saw their fixtures and I knew it was men going up there to fix the line. I believe there were as many as three, maybe four. I didn\u2019t pay any attention to the kind of truck they came in. They .went up to this pole that has been spoken of. I saw them looking around there, and then I could see them drawing up something like they were fixing it. They were insulators, looked to me like. They were getting the thing they were drawing up from below \u2014 looked like from the ground up. I couldn\u2019t see the wire that far. I don\u2019t know how long they worked there; they weren\u2019t there so awfully long.\u201d\nU. E. Eord testified: \u201cI was there in the road loading logs there, and this line was down over there in the field at this post, and Mr. Clark there and his force came up and fixed the line up while I was loading the logs there, and come back and got in the truck and went off. It was about 3 o\u2019clock.\u201d\nS. A. Johnson, superintendent of Power Company, testified: \u201cI was superintendent of lines, power houses and construction and general work. I am familiar with the Weaver power plant. I built it. It was the place where the power line which leads to Canton went from at that time. Those lines leading to Canton are called \u2018three-phase,\u2019 three lines; they are not insulated wires; tbe voltage is 66,000. I believe from 1,700 to 2,000 volts ordinarily is used in electrocuting a man. On April of last year there were two switches on there. There is a switch on the 6,600 volt side that goes through the transformer and steps up to 66,000, and on the 66,000 volt side there is also a set of automatic switches on the 66,000 volt side. There are telephone communications in the power house. It would take about a half minute to cut off the power on that line after receiving notice of trouble on it; that kills the line. ... I did not have anything to do with repairing the line; they had it repaired when I got back; they have instrument on the boards at this power house to show when the line gets down and is grounded, but as long as the line don\u2019t get down and isn\u2019t grounded it doesn\u2019t show it. They are ampmeters and various kinds that show load. When the load goes up high enough the current trips the automatic switch, but in this instance the wire was swinging something like eighteen inches above the fence \u2014 wasn\u2019t touching it. If that had been down on the wire, I know well enough if it had been down and made a ground it would have knocked it out. I have been there too much and seen it happen. I don\u2019t know of my own knowledge when it did knock it out. I only know what the men told me. If the wire should be near to a wire fence over which it passed it would have electrified the wire fence without being in contact with it; that is what is called an induced current. That would not register on the automatic- signals because the ground wasn\u2019t heavy enough, if it got- close enough depending upon the degree of contact. If it had been down where it got a ground the automatic instruments would have worked. I don\u2019t know whether they did work or didn\u2019t \u2014 only what I was told. If they had worked they wouldn\u2019t have been able to have kept them in. They are so automatic when it goes down you can put it right back.in like that and there is no keeping it there.\u201d\nRobert S. Shook testified: \u201cI have driven by from Newfound to Ashe-ville in a Ford. As to the way I drive I wouldn\u2019t come as quick as a whole lot of men because I am a bad driver. It was a good time before I ever learned to get here and back. I had several wrecks. I don\u2019t know what was wrong this morning. I left home 15 minutes to 8, and when I got to the square it was 20 minutes after eight, and I drove very common I thought- \u2014 that is 35 minutes. I wasn\u2019t trying to make any time. . . . Just an ordinary way it would take him 10 to 15 minutes.\u201d\nThe plaintiff alleges: \u201cPar. 18. That on 27 April, 1927, the plaintiff\u2019s intestate, the said Weaver Murphy, without knowledge of the fact that said fence was charged with said deadly and invisible agency, and electric current, attempted to pass through the wire fence connected with. tbe fence wbicb was charged as aforesaid, when immediately upon touching the said fence his hands, neck and body were attracted and held fast thereto by the deadly and powerful force of said electric current, which current then and there literally burned alive and electrocuted the plaintiff\u2019s intestate, whose lifeless form, many hours after his electrocution, was found still resting against the wires of said fence.\u201d\nThe defendant answered: \u201cThat the allegations contained in paragraph 18 of the complaint are, upon information and belief, denied, except that the defendant admits that the plaintiff\u2019s (intestate came in contact with) current furnished by this defendant, and in consequence thereof lost his life, but the defendant alleges that said death was caused by an accident and by or through means which could not have reasonably been foreseen or provided against. . . . And for further defense the defendant says that if the plaintiff\u2019s intestate, Weaver Murphy, came to his death by reason of having come in contact with a wire fence which had been charged by electricity from one of the defendant\u2019s wires, then that such condition was brought about by an accident or by the unforeseen and unpreventable effects of the weather or by a windstorm or other unavoidable occurrence over which the defendant had no control; in consequence of which its electric wire was caused to fall upon said fence, and that defendant had no notice of said condition and that it had not existed for a sufficient length of time for the defendant to have sufficient notice thereof, and in consequence the defendant is not liable and is not guilty of any negligence which caused the death of the plaintiff\u2019s intestate.\u201d\nWhen the plaintiff rested his case, the defendant rested. Whereupon, the court was advised by counsel for the plaintiff and the defendant that no issues had been prepared; whereupon the court stated to counsel that no issue of contributory negligence arose upon the pleadings or the evidence, which was concurred in by counsel for the plaintiff and the defendant. Therefore, the court suggested that the two usual'issues of negligence and the amount of damages would be all that would be required. This, likewise, was concurred in by counsel for both sides. Whereupon, the court proceeded to dictate to the court reporter the issues that are shown in the record. When written up, the court personally placed before counsel for plaintiff and the defendant copy of the issues, which copies were used by each of counsel and referred to by them in their respective arguments to the jury. No objection was made to the court relative to the issues during the trial.\nThe issues submitted to the jury and their answers thereto were as follows:\n\u201c1. Was the defendant guilty of negligence as .alleged in the complaint ? Answer: Yes.\n\u201c2. What amount of damages, if any, is the plaintiff entitled to recover of the defendant ? Answer: $23,000.\u201d\nThe material assignments of error and other necessary evidence will be set forth in the opinion.\nWells, Blackstock & Taylor and J. B. Swain for plaintiff.\nMartin & Martin and Rollins & Smothers for defendant." }, "file_name": "0484-01", "first_page_order": 564, "last_page_order": 574 }