{ "id": 8627291, "name": "THELMA J. PHILYAW, Administratrix of WOODROW PHILYAW, Deceased, v. THE CITY OF KINSTON, a Municipal Corporation", "name_abbreviation": "Philyaw v. City of Kinston", "decision_date": "1957-06-28", "docket_number": "", "first_page": "534", "last_page": "538", "citations": [ { "type": "official", "cite": "246 N.C. 534" } ], "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": "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": "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": "78 S.E. 2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616383 ], "opinion_index": 0, "case_paths": [ "/nc/238/0694-01" ] }, { "cite": "76 S.E. 2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600156 ], "opinion_index": 0, "case_paths": [ "/nc/238/0106-01" ] }, { "cite": "75 S.E. 2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 693", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618041 ], "opinion_index": 0, "case_paths": [ "/nc/237/0693-01" ] }, { "cite": "69 S.E. 2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 304", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623656 ], "opinion_index": 0, "case_paths": [ "/nc/235/0304-01" ] } ], "analysis": { "cardinality": 576, "char_count": 11721, "ocr_confidence": 0.589, "pagerank": { "raw": 9.821530130491506e-08, "percentile": 0.5333119807371008 }, "sha256": "f1422a9117b4d5f9ad022f4cb3c3aed98db68ea48c5f689980d8d1ec124e8354", "simhash": "1:1380f3d3ce6c4553", "word_count": 1983 }, "last_updated": "2023-07-14T21:30:34.544387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THELMA J. PHILYAW, Administratrix of WOODROW PHILYAW, Deceased, v. THE CITY OF KINSTON, a Municipal Corporation." ], "opinions": [ { "text": "WiNboene, C. J.\nThe pivotal question here is whether judgment as of nonsuit was proper upon the evidence offered, taken in the light most favorable to plaintiff. Well settled principles, appropriate to the factual situation, require an affirmative answer. See Mintz v. Murphy, 235 N.C. 304, 69 S.E. 2d 849; Pugh v. Power Co., 237 N.C. 693, 75 S.E. 2d 766; Davis v. Light Co., 238 N.C. 106, 76 S.E. 2d 378; Alford v. Washington, 238 N.C. 694, 78 S.E. 2d 915, and cases cited, and many others.\n\u201cIn action for death by wrongful act based on negligence, the burden rests on the plaintiff to produce evidence sufficient to establish the two essential elements of actionable negligence, namely: (1) That the defendant was guilty of a negligent act or omission; and (2) that such act or omission was the proximate cause of the death of the decedent.\u201d Davis v. Light Co., supra.\nToo, it is well settled in this jurisdiction that foreseeability of injury is a requisite of proximate cause. Davis v. Light Co., supra, and cases cited.\nAnd if it be conceded that the city of Kinston were negligent in maintaining an electric line of uninsulated wires, as alleged, it is apparent from the evidence that the injury to and death of plaintiff\u2019s intestate was independently and proximately produced by the wrongful act, neglect or default of an outside agency or responsible third person. Smith v. Sink, 211 N.C. 725, 192 S.E. 108; see also Alford v. Washington, supra, and cases cited.\nMoreover, we find it stated in 18 Am. Jur. 491-2, subject Electricity, Sec. 97, as quoted in Mintz v. Murphy, supra, and Alford v. Washington, supra, \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 also recognized by this Court in Ellis v. Power Co., 193 N.C. 357, 137 S.E. 163.\nThe mere maintenance of high tension transmission line is not wrongful, and in order to hold the owner negligent, where an injury occurs, he must be shown to have omitted some precaution which he should have taken. Am. Jur. 490, Electricity, Sec. 96.\nIn the case in hand there would have been no injury to plaintiff\u2019s intestate but for the intervening wrongful act, neglect or default of those in control of constructing the building under and in close proximity to the electric line, without notice to the city. And surely the city of Kinston was not charged with duty of foreseeing that such would be done. The evidence does not disclose facts sufficient to charge the defendant with notice that someone might erect a building under and up to its transmission line. In consequence injury to and death of intestate was not within the reasonable foresight of defendant. Davis v. Light Co., supra, and cases cited.\nOther assignments of error have been considered, and prejudicial error is not found.\nAffirmed.", "type": "majority", "author": "WiNboene, C. J." } ], "attorneys": [ "Whitaker & Jeffress, Larkins & Brock, and Jones, Reed & Griffin for Plaintiff Appellant.", "Edmundson & Edmundson and George B. Greene for Defendant Appellee." ], "corrections": "", "head_matter": "THELMA J. PHILYAW, Administratrix of WOODROW PHILYAW, Deceased, v. THE CITY OF KINSTON, a Municipal Corporation.\n(Filed 28 June, 1957.)\n1. Death \u00a7 3\u2014\nIn an action for wrongful death, plaintiff has the burden of establishing that defendant was guilty of a negligent act or omission, and that such act or omission was the proximate cause of the death of decedent.\n2. Negligence \u00a7 9\u2014\nForeseeability of injury is a requisite of proximate cause.\n3. Electricity \u00a7 7\u2014\nThe maintenance of high tension wires by a corporation engaged in the distribution of electricity is not wrongful, and its duty to insulate such wires and place warning signs thereof is limited to places where, in the exercise of ordinary prevision, the electric company could foresee that persons might come in contact therewith in the course of their legitimate pursuits of work, business, or pleasure.\n4. Same \u2014 Evidence held insufficient to show that defendant could have reasonably foreseen that building would he constructed in proximity to its transmission line.\nThe evidence tended to show that a workman was electrocuted in the course of his employment when he stood up after sawing rafters of the roof of the building under construction, and came in contact with high tension wires some four or five feet above the height of the roof. There was no evidence that the municipality maintaining the wires was given notice of the construction of the building in proximity to the wire by either the owner or contractor or other person, except in the application for building permit which gave the location and dimensions of the building but revealed no data in reference to the location and proximity of the city electric lines. Held: The evidence fails to disclose facts sufficient to charge defendant city with notice that someone might erect a building under and up to its transmission line, and therefore, the death of intestate was not within the reasonable foresight of defendant, and nonsuit was proper.\nAppeal by plaintiff from Parker, J., at September 1956 Civil Term of LENOIR.\nCivil action to recover damages for alleged wrongful death of intestate of plaintiff.\nThe case on appeal shows substantially the following: The allegations of negligence on the part of defendant, and the defendant\u2019s denial of the allegations thereof, and defendant\u2019s allegations of contributory negligence on the part of plaintiff\u2019s intestate are set forth in the pleadings filed.\nIn substance plaintiff alleges negligence on the part of defendant in the maintenance of an electric line over which high voltage current was being transmitted in close proximity to a building under construction just outside the corporate limits of said city, \u2014 the allegation being to the effect that defendant had notice of the fact that the building was under construction; that its said electric light line was so located as to pass within about four feet of the southeast corner of said building; and that it failed to notify plaintiff\u2019s intestate and others employed in the construction of said building of the danger incident to the presence of the said line, \u2014 the same being uninsulated and carrying high voltage.\nOn the other hand, defendant, in substance, denied the material allegations of plaintiff, and affirmatively alleges that plaintiff\u2019s intestate knew, or in the exercise of ordinary diligence should have known, of the danger incident to the presence of its electric line, extending over the roof and across the southeast corner of the said building, and pleads, as proximate cause, intervening acts of negligence on part of George DuBose, the contractor.\nUpon trial in Superior Court evidence offered by plaintiff as shown in the case on appeal tends to show substantially the following: W. I. Herring let contract to George DuBose, general contractor, to construct on his land, a little less than one mile from the limits of the city of Kinston, a new one-story building, 120 x 124 feet, to connect with the building already there, facing Highway 258. The corners for this building were laid off and staked. As so staked it was ascertained later that an electric line of the city of Kinston carrying two wires was over the southeast corner of the new building. The wires on this line were about 25 feet above the ground level. The edges of the rafters at the southeast corner of the wall of the building were to be about 20 feet high. When the walls were constructed the wires on the line were about 4 or 5 feet above, and about 2 feet over the wall at the southeast corner. The contractor expressly stated that he made no request of the city of Kinston either to remove the line or to cut off the current, and there is no evidence that anyone else did, or that the city of Kinston had any knowledge thereof.\nOn 10 June, 1954, about 5 o\u2019clock, quitting time, Woodrow Philyaw, plaintiff\u2019s intestate, standing on the wall of the building sawing off rafters at or near the southeast corner, raised up and came in contact with one of the wires on this city electric line, and was electrocuted.\nPlaintiff offered in evidence the application made by the contractor to the city inspector for a building permit, and a permit, issued to construct such building on Highway 258, to be erected in accordance with the ordinances of the city of Kinston and the general building laws of the State, and to be used for a warehouse. The contractor did not have a set of plans for the building, but did have a plat plan showing the size of the building. Neither the application nor the permit revealed any data in reference to the location and proximity of the city electric lines to the building. There is evidence that the wires on this particular electric line of the city of Kinston were uninsulated, and that -there were no signs posted at or near the premises to indicate the voltage of electric current that was being carried over these wires.\nW. I. Herring testified that he had not given any thought, or noticed that the city of Kinston\u2019s high-powered voltage transmission line was there until the next morning after Philyaw had his accident. Too, the contractor testified that he did not discover any transmission lines of the city of Kinston in close proximity to the building until the night of the accident; but did discover the next morning the city line that crosses the corners of the building where Philyaw was electrocuted. The foreman in charge of the work for the contractor testified that he first noticed the presence on or near the building of the city\u2019s electric line about three minutes after Philyaw was struck, \u2014 that he had not before that time seen the wires across the premises. Several of the workmen on the building testified to seeing the wires and being aware of the fact that they were over the building.\nOne Westbrook testified that he and Philyaw were working as a team, he marking the rafters and Philyaw coming behind -with a scale saw and cutting them off. He said that he had noticed the distance of the wires from the roof of the building enough to be cautious on that corner and did not stand up on the rafters \u201cas we normally would.\u201d\nAnd there is evidence that Philyaw was about six feet tall; that he was an experienced carpenter; and that in connection with his work it is a fact that he used electric equipment, and had been accustomed to use, and used electric equipment for a period of time.\nThe general contractor carried Workmen\u2019s Compensation insurance and made a report of the accident to -the North Carolina Industrial Commission, and compensation has been paid to the injured employee as provided in the Workmen\u2019s Compensation law; and it is not denied that a period of more than six months had elapsed subsequent to the death of plaintiff\u2019s intestate, and prior to the institution of this action, during which period neither the said George DuBose, as employer of plaintiff\u2019s intestate, nor United States Fidelity & Guaranty Company, his insurance carrier, had instituted an action for or on behalf of or jointly with the plaintiff for recovery of damages based upon alleged negligence on the part of the defendant.\nAt close of plaintiff\u2019s evidence, defendant moved for judgment as of nonsuit. The motion was allowed. Plaintiff excepted thereto, and, from judgment in accordance therewith, appeals to the Supreme Court and assigns error.\nWhitaker & Jeffress, Larkins & Brock, and Jones, Reed & Griffin for Plaintiff Appellant.\nEdmundson & Edmundson and George B. Greene for Defendant Appellee." }, "file_name": "0534-01", "first_page_order": 584, "last_page_order": 588 }