Philyaw v. City of Kinston

98 S.E.2d 791 (1957)

246 N.C. 534

Thelma J. PHILYAW, Administratrix of Woodrow Philyaw, deceased, v. The CITY OF KINSTON, a Municipal Corporation.

No. 309.

Supreme Court of North Carolina.

June 28, 1957.

*793 Whitaker & Jeffress, Kinston, Larkins & Brock, Trenton, Jones, Reed & Griffin, Kinston, for plaintiff appellant.

Edmundson & Edmundson, Goldsboro, George B. Greene, Kinston, for defendant appellee.

WINBORNE, Chief Justice.

The 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. Town of Murphy, 235 N.C. 304, 69 S.E.2d 849; Pugh v. Tidewater Power Co., 237 N. C. 693, 75 S.E.2d 766; Davis v. Carolina Power & 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.

"In an 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." Davis v. Carolina Power & Light Co., supra [238 N.C. 106, 76 S.E.2d 379].

Too, it is well settled in this jurisdiction that foreseeability of injury is a requisite of proximate cause. Davis v. Carolina Power & Light Co., supra, and cases cited.

And 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's 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.

Moreover, we find it stated in 18 Am. Jur. 491-492, subject Electricity, Sec. 97, as quoted in Mintz v. Town of Murphy, *794 supra, and Alford v. Washington, supra [238 N.C. 694, 78 S.E.2d 919], "That 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." This principle is also recognized by this Court in Ellis v. Carolina Power & Light Co., 193 N.C. 357, 137 S.E. 163.

The 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. 18 Am. Jur. 490, Electricity, Sec. 96.

In the case in hand there would have been no injury to plaintiff's 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. Carolina Power & Light Co., supra, and cases cited.

Other assignments of error have been considered, and prejudicial error is not found.

Affirmed.