{ "id": 8623656, "name": "EVERETT A. MINTZ v. TOWN OF MURPHY", "name_abbreviation": "Mintz v. Town of Murphy", "decision_date": "1952-03-26", "docket_number": "", "first_page": "304", "last_page": "315", "citations": [ { "type": "official", "cite": "235 N.C. 304" } ], "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": "14 S.E. 2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "219 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624342 ], "opinion_index": 0, "case_paths": [ "/nc/219/0402-01" ] }, { "cite": "137 S.E. 163", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "193 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217769 ], "opinion_index": 0, "case_paths": [ "/nc/193/0357-01" ] }, { "cite": "158 S.E. 385", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "200 N.C. 719", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625762 ], "opinion_index": 0, "case_paths": [ "/nc/200/0719-01" ] }, { "cite": "136 S.E. 9", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "192 N.C. 784", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626902 ], "opinion_index": 0, "case_paths": [ "/nc/192/0784-01" ] }, { "cite": "69 S.E. 399", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "153 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272900 ], "opinion_index": 0, "case_paths": [ "/nc/153/0437-01" ] }, { "cite": "53 S.E. 342", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "140 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652491 ], "opinion_index": 0, "case_paths": [ "/nc/140/0506-01" ] }, { "cite": "94 U.S. 469", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5643926 ], "opinion_index": 0, "case_paths": [ "/us/94/0469-01" ] }, { "cite": "179 S.E. 446", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N.C. 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597196 ], "opinion_index": 0, "case_paths": [ "/nc/208/0134-01" ] }, { "cite": "63 S.E. 2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600698 ], "opinion_index": 0, "case_paths": [ "/nc/233/0160-01" ] }, { "cite": "6 S.E. 2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "217 N.C. 82", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598957 ], "opinion_index": 0, "case_paths": [ "/nc/217/0082-01" ] }, { "cite": "195 S.E. 88", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "213 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626372 ], "opinion_index": 0, "case_paths": [ "/nc/213/0041-01" ] }, { "cite": "156 S.E. 507", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "200 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621174 ], "opinion_index": 0, "case_paths": [ "/nc/200/0324-01" ] }, { "cite": "192 S.E. 108", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629004 ], "opinion_index": 0, "case_paths": [ "/nc/211/0725-01" ] }, { "cite": "46 S.E. 2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627096 ], "opinion_index": 0, "case_paths": [ "/nc/228/0514-01" ] }, { "cite": "18 S.E. 2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11306824 ], "opinion_index": 0, "case_paths": [ "/nc/220/0573-01" ] }, { "cite": "136 S.E. 1", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "192 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626662 ], "opinion_index": 0, "case_paths": [ "/nc/192/0736-01" ] }, { "cite": "123 S.E. 1", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "187 N.C. 786", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655120 ], "opinion_index": 0, "case_paths": [ "/nc/187/0786-01" ] }, { "cite": "24 S.E. 512", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "118 N.C. 1098", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654623 ], "opinion_index": 0, "case_paths": [ "/nc/118/1098-01" ] }, { "cite": "50 S.E. 703", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "138 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269374 ], "opinion_index": 0, "case_paths": [ "/nc/138/0319-01" ] }, { "cite": "52 S.E. 2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628748 ], "opinion_index": 0, "case_paths": [ "/nc/230/0122-01" ] }, { "cite": "61 S.E. 2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608610 ], "opinion_index": 0, "case_paths": [ "/nc/232/0523-01" ] }, { "cite": "59 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599035 ], "opinion_index": 0, "case_paths": [ "/nc/232/0281-01" ] }, { "cite": "54 S.E. 2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631050, 8631021 ], "opinion_index": 0, "case_paths": [ "/nc/230/0539-02", "/nc/230/0539-01" ] }, { "cite": "53 S.E. 2d 536", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630645 ], "opinion_index": 0, "case_paths": [ "/nc/230/0485-01" ] }, { "cite": "18 S.E. 2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 793", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11309737 ], "opinion_index": 0, "case_paths": [ "/nc/220/0793-01" ] }, { "cite": "18 S.E. 2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 782", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11309655 ], "opinion_index": 0, "case_paths": [ "/nc/220/0782-01" ] }, { "cite": "12 S.E. 2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "219 N.C. 25", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620873 ], "opinion_index": 0, "case_paths": [ "/nc/219/0025-01" ] }, { "cite": "11 S.E. 2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "218 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620230 ], "opinion_index": 0, "case_paths": [ "/nc/218/0392-01" ] }, { "cite": "123 S.E. 84", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "187 N.C. 805", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655193 ], "opinion_index": 0, "case_paths": [ "/nc/187/0805-01" ] } ], "analysis": { "cardinality": 1226, "char_count": 32928, "ocr_confidence": 0.483, "pagerank": { "raw": 4.45404181105816e-07, "percentile": 0.9215249614938941 }, "sha256": "b0ac73451f0043552bbc8754b242e047c66d3b79ab88146104fa6fa6c53411a8", "simhash": "1:12024973ce1e40f0", "word_count": 5817 }, "last_updated": "2023-07-14T17:52:11.505162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EVERETT A. MINTZ v. TOWN OF MURPHY." ], "opinions": [ { "text": "'WiNbokne, J.\nTbe sole question bere is tbis: Considering tbe evidence shown in tbe record on tbis appeal in tbe light most favorable to plaintiff, is there sufficient evidence to take tbe case to tbe jury as against tbe defendant Town of Murphy? Tbe trial court did not consider it sufficient for tbis purpose. And in tbis ruling error is not made to appear.\nIn an action for recovery of damages for injury resulting from actionable negligence of defendant, plaintiff must show: (1) That there has been a failure on the part of defendant to exercise proper care in tbe performance of some legal duty which t,he defendant owed tbe plaintiff under tbe circumstances in which they were placed. And (2) that such negligent breach of duty was tbe proximate cause of tbe injury, a cause that produced tbe result in continuous sequence, and without which it would not have occurred, and one from which a man of ordinary prudence could have foreseen that such result was probable under tbe facts as they existed. Whitt v. Rand, 187 N.C. 805, 123 S.E. 84; Murray v. R. R., 218 N.C. 392, 11 S.E. 2d 326; Mills v. Moore, 219 N.C. 25, 12 S.E. 2d 661; Luttrell v. Mineral Co., 220 N.C. 782, 18 S.E. 2d 412; Mitchell v. Melts, 220 N.C. 793, 18 S.E. 2d 406; Harris v. Montgomery Ward, 230 N.C. 485, 53 S.E. 2d 536; McIntyre v. Elevator Co., 230 N.C. 539, 54 S.E. 2d 45; Spivey v. Newman, 232 N.C. 281, 59 S.E. 2d 844; Baker v. R. R., 232 N.C. 523, 61 S.E. 2d 621.\nIf tbe evidence fails to establish either one of tbe essential elements of actionable negligence, tbe judgment of nonsuit is proper. Luttrell v. Mineral Co., supra; Mitchell v. Melts, supra; Thomas v. Motor Lines, 230 N.C. 122, 52 S.E. 2d 377.\nAnd tbe principle prevails in tbis State that what is negligence is a question of law, and when tbe facts are admitted or established, tbe court must say whether it does or does not exist. \u201cThis rule extends and applies not only to tbe question of negligent breach of duty, but also to the feature of proximate cause.\u201d Hoke, J., in Hicks v. Mfg. Co., 138 N.C. 319, 50 S.E. 703; Russell v. R. R., 118 N.C. 1098, 24 S.E. 512; Lineberry v. R. R., 187 N.C. 786, 123 S.E. 1; Clinard v. Electric Co., 192 N.C. 736, 136 S.E. 1; Murray v. R. R., supra; Reeves v. Staley, 220 N.C. 573, 18 S.E. 2d 239; Luttrell v. Mineral Co., supra; Balter v. R. R., supra.\nIn Lineberry v. R. R., supra, in opinion by Clarkson, J., it is said: \u201cIt is well settled that where the facts are all admitted, and only one inference may be drawn from them, the court will declare whether an act was the proximate cause of the injury or not.\u201d See also Nichols v. Goldston, 228 N.C. 514, 46 S.E. 2d 320; Baker v. R. R., supra.\nFurthermore, it is proper in negligence cases to sustain a demurrer to the evidence and enter judgment as of nonsuit under provision of G.S. 1-183, \u201c(1) When all the evidence taken in the light most favorable to the plaintiff, fails to show any actionable negligence on the part of defendant . . . (2) When it clearly appears from the evidence that the injury complained of was independently and proximately produced by the wrongful act, neglect, or default of any outside agency or responsible third person . . . ,\u201d Stacy, C. J., in Smith v. Sink, 211 N.C. 725, 192 S.E. 108, and cases cited in respect to each principle. See also Boyd v. R. R., 200 N.C. 324, 156 S.E. 507; Powers v. Sternberg, 213 N.C. 41, 195 S.E. 88; Butner v. Speas, 217 N.C. 82, 6 S.E. 2d 808; Murray v. R. R., supra; Luttrell v. Mineral Co., supra; Riggs v. Motor Lines, 233 N.C. 160, 63 S.E. 2d 197.\nIn Smith v. Sink, supra, it is also said: \u201cWe had occasion to examine anew this doctrine of insulating the conduct of one, even when it amounts to passive negligence, by the intervention of the active negligence of an independent agency or third party, as applied to variant fact situations, in the recent case of Beach v. Patton, 208 N.C. 134, 179 S.E. 446,\u201d and others cited. Then, continuing, \u201cThese decisions, and others, are in full support and approval of Mr. Wharton\u2019s statement in his valuable work on Negligence (Sec. 134) : \u2018Supposing that if it had not been for the intervention of a responsible third party the defendant\u2019s negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent responsible human action. I am negligent on a particular subject matter. Another person, moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a nonconductor, and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured.\u2019 \u201d Then there follows, to like effect, a quotation from R. R. v. Kellogg, 94 U.S. 469. See also Butner v. Speas, supra; Riggs v. Motor Lines, supra.\nA municipal corporation, engaged in the business of supplying electricity for private advantage and emolument is, as to this, regarded as a private corporation, \u2014 and, in such capacity is liable to persons injured by the actionable negligence of its servants, agents and employees. Fisher v. New Bern, 140 N.C. 506, 53 S.E. 342; Harrington v. Wadesboro, 153 N.C. 437, 69 S.E. 399; Rice v. Lumberton, ante, 227.\nAnd this Court declared in Helms v. Power Co., 192 N.C. 784, 136 S.E. 9, that: \u201cElectric companies \u00e1re required to use reasonable care in tbe construction and maintenance of tbeir lines and apparatus. The degree of care which, will satisfy this requirement varies, of course, with the circumstances, but it must always be commensurate with the dangers involved, and where the wires maintained by \u00e1 company are designed to carry a strong and powerful current of electricity, the law imposes upon the company the duty of exercising the utmost care and prudence consistent with the practical operation of its business to avoid injury to those likely to come in contact with the wires.\u201d\nAnd in Small v. Utilities Co., 200 N.C. 719, 158 S.E. 385, it is said that, \u201cDue to the deadly and latently dangerous character of electricity, the degree of care required of persons, corporate or individual, furnishing electric light and power to others for private gain, has been variously stated.\u201d Then after reciting such expressions, the Court said: \u201cIn approving these formulas as to the degree of care required in such cases, it is not to be supposed that there is a varying standard of duty by which the responsibility for negligence is to be determined . . . The standard is always the rule of the prudent man, or the care which a prudent man ought to use under like circumstances. What reasonable care is, of course, varies in different cases and in the presence of different conditions.\u201d\nMoreover, we find it stated in 18 Am. Jur. 491-2, subject Electricity, Sec. 97, \u201cThat the duty of providing insulation should be limited to those points or places where there is reason to apprehend that persons may come in contact with the wires, is only reasonable. Therefore, the law does not compel companies to insulate . . . their wires everywhere, but only at places where people may legitimately go for work, business, or pleasure, that is, where they may be reasonably expected to go. The same rule applies with equal, if not greater, force in regard to placing warning signs.\u201d This principle is recognized by this Court in Ellis v. Power Co., 193 N.C. 357, 137 S.E. 163. See also 29 C.J.S. 582\u2014Electricity, Sec. 42.\nThe mere maintenance of high tension transmission line is not wrongful, and in order to hold the owner negligent, when an injury occurs, he must be shown to have omitted some precaution which he should have taken. 18 Am. Jur. 490\u2014Electricity, Sec. 96.\nOn the other hand, the law imposes upon a person sui juris the obligation to use ordinary care for his own protection, and the degree of such care should be commensurate with the danger to be avoided. Since the danger from uninsulated or otherwise defective wires is proportionate to the amount of electricity so transmitted, contact with such wires should be avoided where their existence is known. Where a person seeing such a wire knows that it is, or may be highly dangerous, it is his duty to avoid coming in contact therewith .... See 18 Am. Jur. 471, Electricity 76. See also Rice v. Lumberton, ante, 227.\nFurthermore, it may be conceded, for purposes of this appeal, that the State Highway and Public Works Commission is vested with authority to control the uses to which the easements acquired by the State for public highway purposes, may be put, Hildebrand v. Telegraph Co., 219 N.C. 402, 14 S.E. 2d 252; and that in the exercise of such authority the Commission had the right to call upon the Town of Murphy to remove so much of its electric transmission line as interfered with the re-location and improvement of portions of Highway No. 64. And the evidence discloses that the Town of Murphy was co-operating with the request of the Commission in this respect.\nAngl applying the principles of law here stated to the evidence offered by plaintiff, such evidence fails to make out a case of actionable negligence. If it should be conceded that the evidence tends to show that defendant failed to maintain its transmission line in accordance with its legal duty, the evidence fails to show that such failure was a proximate cause of the injury to plaintiff. On the other hand, it clearly appears from the evidence that the injury of which plaintiff complains was \u201cindependently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person.\u201d There would have been no injury to plaintiff but for the intervening wrongful act, neglect or default of those in control of and operating the derrick, over which defendant had no control, and of which defendant had no knowledge.\nThe judgment below is\nAffirmed.", "type": "majority", "author": "'WiNbokne, J." } ], "attorneys": [ "F. 0. Christopher, O. L. Anderson, T. M. Jenkins for plaintiff, appellant.", "Edwards & Leatherwood and John M. Queen for defendant, appellee." ], "corrections": "", "head_matter": "EVERETT A. MINTZ v. TOWN OF MURPHY.\n(Filed 26 March, 1952.)\n1. Negligence \u00a7 1\u2014\nActionable negligence is the failure to exercise proper care in the performance of some legal duty which the defendant owes plaintiff under the circumstances, which proximately causes injury to plaintiff.\n2. Negligence \u00a7 5\u2014\nProximate cause is that cause which produces the result in continuous sequence and from which a man of ordinary prudence could have foreseen that such result was probable under the facts as they existed.\n3. Negligence \u00a7 19a\u2014\nNegligence is a question of law, and when the facts are admitted or established the court may say whether there has been a negligent breach of duty and also whether it was a proximate cause.\n4. Negligence \u00a7 19b (1)\u2014\nNonsuit is proper in an action for negligence when all the evidence taken in the light most favorable to plaintiff fails to show any one of the elements of actionable negligence.\n5. Negligence \u00a7 19d\u2014\nNonsuit is proper in a negligence action when it clearly appears from the evidence that the injury complained of was independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person.\n6. Municipal Corporations \u00a7 12\u2014\nIn supplying electricity for private advantage and emolument a municipality is regarded as a private corporation and is liable for actionable negligence of its servants, agents and employees.\n7. Electricity \u00a7 6\u2014\nAn electric company is held to the standard of care of an ordinarily prudent person under the circumstances, which, in regard to wires carrying a strong and lethal current, is the duty to exercise the utmost care and prudence consistent with the practical operation of the business.\n8. Same\u2014\nAn electric company is not required to maintain insulation on wires at places where it cannot be contemplated that any person could come in contact with them.\n9. Electricity \u00a7 11 \u2014 Evidence held to show that injury resulted from independent act of responsible third party, and nonsuit was proper.\nThe evidence tended to show that in the construction of a highw\u00e1y it became necessary for defendant municipality to move its poles, that the municipality was co-operating with the Highway Commission to this end, but that before the question of right of way had been settled, plaintiff\u2019s employer began work in the construction of a culvert, and that in the progress of the work plaintiff was injured by an electric shock when current from defendant\u2019s uninsulated wires jumped a gap of some twelve inches to the beam of the derrick in connection with which plaintiff was working. Held: The evidence discloses that the injury resulted from the independent intervening act of those in control of and operating the derrick, over which defendant had no control, and nonsuit was properly entered.\nAppeal by plaintiff from Rudisill, J., November Term, 1951, of CHEROKEE. \u25a0 \u2022\nCivil action to recover damages for personal injury allegedly resulting from actionable negligence of defendant.\nFrom tbe case on appeal it appears to be uncontroverted tbat plaintiff was injured on forenoon of 11 September, 1948, by electric shock while working as an employee of T. F. Houser, in pouring concrete in constructing a culvert at Haney Branch on State Highway No. 64, Project 91 Yl, in Cherokee County, North Carolina, under an electric transmission line of defendant Town of Murphy.\nThe acts of negligence with which plaintiff charges defendant as proximate causes of his injury as alleged in the complaint, and as summarily stated, are: (1) Defective construction of.its transmission line, \u2014 -poles and cross-arms of wood too small to carry high tension wires, and failure to insulate wires; (2) failure to maintain its transmissions line, \u2014 thereby permitting poles to decay, and wires to sag, thereby creating hazard to those it might expect to work in close proximity thereto; (3) failure to remove the line when ordered by State Highway and Public Works Commission, or to cut off the current, having knowledge of conditions surrounding the work being done at the Haney Branch culvert; and (4) failure to give notice of existent danger.\nDefendant, answering, denies all allegations of negligence on its part, and pleads as further defenses, summarily stated, among other things, intervening negligence of T. F. Houser, his agents and servants, as the sole proximate cause of plaintiff\u2019s injury.\nUpon the trial in Superior Court plaintiff offered evidence tending to show the following:\nThe State Highway and Public Works Commission of North Carolina had previously, to wit 28 July, 1948, awarded a contract to Asheville Contracting Company, as independent contractor, \u201cto repair, alter, change, relocate and rebuild\u201d certain portions of Highway No. 64 from its junction with Highway No. 60 at or near Ranger northerly to the Town of Murphy, all in Cherokee County and known as Project No. 9171, in accordance with standard rules and specifications for roads and structures, of date 1 January, 1946. (Contract and specifications were not introducted in evidence).\nThe Asheville Contracting Company sublet to T. P. Houser, or Houser Construction Company, as sometimes referred to, contract to construct culverts on this project 9171. Paul Cook was foreman for T. F. Houser, and plaintiff was employed by T. F. Houser on this job.\nThe Town of Murphy, a municipal corporation, owning an electric distribution system through which it distributes electric current for pay to customers within and outside its corporate limits, \u2014 the current being purchased by it from Tennessee Valley Authority at wholesale price, maintained a part of its distribution system along Highway 64 over and beyond Haney Branch on State Highway Project 9171. And E. G. Hughes was the manager of the electric department of the Town of Murphy with authority to supervise the maintenance of the transmission lines, to purchase material, etc.\nT. B. Wilson was principal right of way engineer of the State Highway and Public Works Commission, and F. L. Hutchinson was its resident engineer on Project 9171.\nAnd under the contract between State Highway and Public Works Commission and Asheville Contracting Company it was \u201cthe business and obligation\u201d of the Commission, and not of the contractor, to have obstructions, like electric transmission lines or poles, removed from the right of way where Project 9171 was to be located or constructed.\nAnd on 14 August, 1948, T. B. Wilson, in official capacity, wrote a letter to E. G-. Hughes, of the electric department of the Town of Murphy, on the subject of \u201cPole Conflict \u2014 Town of Murphy\u201d on Project 9171, as follows:\n\u201cI am advised by our Mr. Snelson that it will be necessary to move approximately 39 poles which conflict with the construction of the above project and investigation of the status of right of way for these poles indicates that the line was originally erected by the Southern States Power Company in 1932 or 1933, and that a right of way was secured and recorded for this line. However, we find that the poles were not placed on private right of way, but were erected on the public right of way of the highway; therefore, it would appear that the cost of relocation of these poles should be borne by the town.\n\u201cMr. Snelson advised that due to some minor changes in alignment of this project that it is possible the number of poles which are to be moved may vary somewhat from the number given above, and I would suggest that you keep in touch with the Resident Engineer or Mr. Snelson, so that some of the poles may not be unnecessarily moved.\n\u201cIt is requested tbat you please arrange to move these poles as soon as possible, as the contract for the construction of this project has been awarded.\u201d\nThereafter on 25 August, 1948, Hughes, as such manager, replied thereto by letter, which 'Wilson received 28 August, 1948. This letter reads as follows:\n\u201cI contacted Mr. F. L. Hutchinson, after receiving your letter dated August 14, 1948 on above subject. We went over the project with Mr. Hutchinson's maps and he feels that we will be able to re-locate on State Highway right of way, between the highway and railroad without conflict to either, if it will be agreeable with your Commission. He states that I should contact you with reference to Contract Forms and that you could probably furnish same.\n\u201cI will have to re-locate within the next forty-five days to not conflict with the progress of your contractor. Will you please advise me the proper procedure, so that I may make immediate steps as it will take some time for a survey and re-locating line.\n\u201cThanking you for your immediate attention.\u201d\nWilson testified: \u201cIt wasn\u2019t determined at the time how many poles it was necessary to remove, the number given in the letter was just approximate. . . . There were negotiations going on between the Town of Murphy and the State Highway Commission for the Town of Murphy to remove this electrical line. Mr. Hughes or the town was co-operating with the resident engineer, Mr. Hutchinson, about clearing the right of way and removing the poles. I would qualify that statement 'from the correspondence we had they were doing all they could\u2019 ... I do not know of my own knowledge just what the Town of Murphy and Mr. Hughes did in regard to this line. I transferred that to our resident engineer . . .\u201d\nAnd in this respect, Hutchinson, on cross-examination, after testifying that he received copy of letter from Wilson to Hughes, said: \u201cAfter I received that letter, Mr. E. G. Hughes, an employee of the Town of Murphy, contacted me and discussed with me the question of a removal of the transmission line that was maintained by the Town of Murphy. In my conversation with Mr. Hughes ... it was discussed that it would take possibly some 2 or 3, some few weeks or days due to the fact that before the town could remove its transmission line and replace it, that they had to acquire a right of way upon which to place it. There was also a question undetermined as to just how many poles that it was necessary to remove. ... It was necessary that the town acquire poles on which to place the transmission line when it was moved . . . Mr. Hughes . . . went out with me over the project to determine the poles to be removed and Mr. Hughes and his crew started work in the area of Haney Branch . . . dug several holes in that area and I believe . . . set several poles, and I asked bim why he didn\u2019t continue with his locating, and he said he could not continue to set the poles until he could get a right of way for the new location. The plaintiff was injured during the period of time that Mr. Hughes or the Town of Murphy was endeavoring to remove its transmission line. ... At the time I received the letter copy dated August 14, 1948, from Mr. Wilson, we knew that the poles at Haney Branch should be removed. We knew they had to be removed, prior to the injury of Mr. Mintz. . . . They would only have to have moved two poles, one on the east side and the one on the west side of Haney Branch culvert to have moved the line away from the crane being operated . . . From what I have observed and what I believe I do know it would be more efficient operation with good operating practice for the operator of an electrical distribution line similar to the distribution line maintained by the town of Murphy to move the whole system than it would be to just move a portion of the system. On the morning that plaintiff was injured I looked over the culvert at Haney Branch. I was there afterwards and observed the location of the poles, etc. ...\u201d\nAnd this witness further testified: \u201cMr. Houser had been working and pouring concrete culverts on the far west end of the project . . . doing work where the Town of Murphy didn\u2019t have its electric line.\u201d\nAnd Paul Cook, foreman on this job for T. E. Houser, testified: \u201cIn connection with building the culverts on Highway 64, Project 9171, we began this project sometime about August 12th, 1948, west of the Haney Branch. We had some shovel work and labor to do before we moved to the Haney Branch structure. We moved to this place September 9th. Mr. Hutchinson . . . submitted to me the plans and specifications for the work ... I do not know E. Gf. Hughes or any of the governing officials of the town of Murphy. Neither Mr. Hughes or any of the officials . . . gave me instructions as to any of the switches. I can\u2019t recall that I saw Mr. E. G. Hughes on the operation before the accident but did see him after that. The power line was on the poles. I didn\u2019t see any posters or publications or warnings attached to or about the power line anywhere . . .\u201d\nAnd in this connection, witness, Thomas West, testified: \u201cI recall the time about September 13, 1948, when Everett Mintz was injured . . . about that time or immediately preceding it I was there clearing the right of way for the new highway location ... I saw Mr. E. G. Hughes down there during the operation as the work progressed. When we started to cut the right of way through that Haney Branch section, where there was a deep cut, the wires were in the way and I saw Mr. Hughes about moving the wires from that section and he said that he could not get to it at that particular time but made a date when he talked to me later, tbat be would cut tbe power off so I could cut tbe trees and be did and I cut tbe trees.\u201d\nPlaintiff also offered evidence tending to show tbat defendant\u2019s electric transmission line was constructed in 1930 or 1931; tbat tbe p.oles were 30 feet in beigbt above tbe highway where it crossed Haney Branch and tbe wires then carried 5900 volts; tbat in 1946 tbe poles were about same beigbt; that at time of plaintiff\u2019s injury and in tbe Haney Branch section some of tbe poles were leaning and tbe wires between tbe poles were sagging; tbat one pole 100 to 150 feet from point where plaintiff was injured was propped up; tbat some of tbe original poles bad rotted off at tbe ground, and new post bases inserted and old poles spliced to them; and tbat tbe wires there were uninsulated.\nAnd in respect to tbe place of plaintiff\u2019s injury, and tbe surrounding circumstances at tbe time it occurred, and bow it occurred, plaintiff offered evidence tending to show tbe following:\nTbe Haney Branch culvert involved tbe excavation, setting of forms, and pouring concrete to complete tbe job. Tbe work at tbe Haney Branch was an extension of tbe culvert tbat ran under Highway 64. Tbe approximate length of tbe culvert was 33 feet. From tbe edge of tbe old bigbway to tbe center of tbe new bigbway location was approximately 30 feet. Tbe power line was over tbe new structure being built, and over tbe end of tbe old one. At that point tbe pavement of tbe old bigbway was 16 feet wide. Tbe pole on tbe east side of tbe culvert at tbe Haney Branch was 27 feet from tbe center, and 19 feet from tbe edge of tbe old bigbway. Tbe one on tbe west side was 28 feet from tbe center of tbe old bigbway. These two poles were 250 feet apart, \u2014 (later said by same witness to be 150 feet apart). Tbe old road at tbat point was on a fill approximately 3% feet high, and these poles were down below tbe fill \u2014 tbe bases of tbe poles being approximately 3% feet below tbe surface of tbe old road. And tbe electric wire \u201cwas at least 25 to 30 feet from tbe ground level.\u201d\nPlaintiff testified in pertinent part: \u201cI am 47 years old . . . carpenter by trade and bad 20 years experience up until September 11, 1948. I was employed by T. F. Houser as a carpenter, building and setting forms and concrete culverts on Highway No. 64. My injury occurred at Haney Branch culvert on old bigbway No. 64. This was an extension of tbe old culvert on tbe north side of the old bigbway to widen and straighten tbe bigbway. Tbe bigbway engineers bad already located tbe new bigb-way. ... I was down under tbe bank of tbe old road at the end of the old culvert when I got hurt ... At tbe time I was injured I was working almost under tbe center of tbe new bigbway location. I bad been working at tbat culvert 3 days. We first built and set forms and footings before starting tbe other part of tbe culvert. . . . Tbe concrete mixer was set just off tbe bank of tbe old bigbway about 40 feet east of tbe culvert where I worked. A crane with boom and metal cable attacked from fly wheel drum to the beam to which a metal bucket was fastened so that the bucket could be lifted and lowered, was used. The crane swung around north with the bucket to the mixer where the bucket was filled with concrete and then swung back to me and I dumped the concrete to the right place in the form. The work assigned to me which I was doing when injured was dumping the concrete in the forms 2 or 3 feet from the end of the old culvert at the edge of the old highway. The power line ran almost directly overhead when I was working at the time . . . I dumped two (2) buckets and on the third bucket I took hold of the handle to dump the third bucket, and that was the last I knew. The two handles were on the outside of the bucket (and) when operated would spill the concrete through the bottom. I was closer under the line when I emptied the first two buckets than when I was injured. Before dumping the concrete we set the top of the beam at 18 inches under the power wire and dogged it at 18 inches under the line. By dogging it I mean that it fixed it so it would not go higher . . .\nThen on cross-examination plaintiff testified that his foreman, Paul Cook, had said something to him about being careful about the beam\u2014 boom \u2014 under these wires; that he knew they were electric wires carrying electricity; and that in working on jobs for contractors for 12 to 15 years some of the work was \u201caround where they had overhead electric wires.\u201d Then plaintiff concluded: \u201cJames Mallory was operating this crane for T. F. Houser, my employer. The question of how high the beam was, Mr. Mallory would know what angle or degree he had it, I do not know the degree. . . . Every time I tipped this bucket letting this heavy weight concrete out, it had a tendency to pull it down a little bit and then it went up.\u201d Q. \u201cWhen the concrete was released from the bucket that let the bucket go up ?\u201d A. \u201cNot let it go up any farther than where it was dogged off. When the weight comes out of it, it naturally goes up.\u201d\nAnd the foreman, Paul Cook, testified: \u201c. . . We moved to the Haney Branch structure . . . September 9th. Mr. Hutchinson was engineer for the State Highway Commission and submitted to me the plans and specifications for the work. . . . And when we were ready to pour our concrete and the bucket was attached first to our crane then the boom with the bucket was moved under the power line. Jim Mallory was the operator. I signalled the operator of the derrick to lower the boom and swing it under the line with the empty bucket. I know about operating the crane ... I set the boom or the operator set the boom at a fixed distance which was 2 feet from the power line or wire. The space between the boom and wire was 2 feet with an empty bucket. And then we moved the bucket to the mixer, loaded it with concrete and brought it back. There had been 2 buckets emptied in the form before the accident happened which was on the third bucket. Everett Mintz\u2019s job that morning was to place the concrete in the form and dump it out of the bucket. He stood in the form when a bucket was swung in place. He took hold of the 2 levers which opened the bottom of the bucket and the concrete poured out. . . . The 2 buckets were dumped and then the crane was moved back from the line approximately 3 to 5 feet. The end of the boom had been back out clear from under the line in position when the plaintiff received the injury. The boom could not have touched the line at any height because it was out from under the line at the time plaintiff was hurt. I was approximately 30 feet away when the accident happened. I was watching the operation of the crane as it moved the concrete in the place and about the time he tipped the bucket the are occurred. I saw the arc leave the power line and connect somewhere on the beam. It appeared like a streak of lightning and came on a 45 degree angle from the line to the boom. The arc appeared to be 12 inches long and came to the arm of the beam when it occurred. I saw Everett Mintz was holding the bucket . . . He was still holding the bucket until the operator swung the boom, then he sank down, and appeared to be dead.\u201d\nAnd this witness Cook further testified: \u201cWith reference to the elevation of the surface of the highway, . . . the crane was sitting . . . approximately 4 feet below the old highway.\u201d\nThen on cross-examination, this witness, the foreman of T. E. Houser, continued: \u201cThe work that was being carried on by T. E. Houser had no connection with the town of Murphy. We had been excavating with the crane two days before the plaintiff was injured, at this place, excavating for the culvert. The line of the town of Murphy was on the lower edge of old 64. The crane was set up on the bank ... I was there in charge as foreman for the Houser Construction Co. I had warned the operator of the crane, Mallory, not to come in contact with these wires. I also warned the plaintiff himself that those wires were dangerous and not to come in contact with them .... The electric transmission that was maintained by the defendant was visible to me ... At the time the accident occurred this beam of the crane came up the side of the power line. It didn\u2019t pass it from what I could see of the arc it was under the line. When I saw the arc occur, the beam was in this position and I didn\u2019t see the beam go up or down ... I was standing under the line.\u201d Q. \u201cYou had authority to give directions to the operator of this crane?\u201d A. \u201cI did, and also Mr. Mintz did.\u201d And, continuing, \u201cThe beam was standing still at the time he took hold of the bucket to dump the concrete.\u201d And in reference to setting or dogging the beam, the witness repeated that the beam was set so it could not get closer than 2 feet of those wires; that \u201cat that particular place\u201d he \u201cconsidered 2 feet safe, which would give us room to work above and below\u201d; but that when he heard the are and looked up \u201cit looked 12 inches on an angle of approximately 45 degrees from tbe end of tbe beam to tbe wire\u201d; and that be bad \u201cworked on electricity for a period of several years before tbis time\u201d . . . but \u201cnothing directly in connection witb tbe electrical operations.\u201d\nAt tbe close of all plaintiff\u2019s evidence, motion of defendant for judgment as of nonsuit was allowed. Plaintiff excepted, and from judgment as of nonsuit appeals to Supreme Court and assigns error.\nF. 0. Christopher, O. L. Anderson, T. M. Jenkins for plaintiff, appellant.\nEdwards & Leatherwood and John M. Queen for defendant, appellee." }, "file_name": "0304-01", "first_page_order": 354, "last_page_order": 365 }