Gibbs v. Carolina Power & Light Company , 268 N.C. 186 ( 1966 )

150 S.E.2d 207 (1966) 268 N.C. 186

Talmadge Andrew GIBBS
v.
CAROLINA POWER & LIGHT COMPANY.

No. 127.

Supreme Court of North Carolina.

September 28, 1966.

Riddle & Briggs, Asheville, for plaintiff-appellant.

Sherwood H. Smith, Jr., Raleigh, and Van Winkle, Walton, Buck & Wall, by Herbert L. Hyde, Asheville, for defendant-appellee.

BRANCH, Justice.

Plaintiff's first exception is to the refusal of the trial court to allow plaintiff to describe the manner in which defendant's employees, Stroupe and Dockery, were working. This exception is without merit since, as no part of the record shows what the excluded evidence would have been, we cannot determine whether its exclusion was prejudicial. Farmers Cooperative Exchange, Inc. v. Scott, 260 N.C. 81, 132 S.E.2d 161. Moreover, it appears that other witnesses testified fully as to the manner in which Stroupe and Dockery were working. Any possible error prejudicial to plaintiff was cured by this testimony. Petty v. Cranston Print Works Co., 243 N.C. 292, 90 S.E.2d 717.

Plaintiff assigns as error the trial court's allowing counsel for Sky-Line to cross-examine plaintiff, on the ground that counsel had previously been in an attorney-client relationship with plaintiff. We have examined the record carefully and find no prejudicial error resulting therefrom. None of the evidence elicited by counsel goes to the issue of defendant's negligence nor to plaintiff's contributory negligence, and it is therefore immaterial to the judgment of nonsuit entered by the court below. Plaintiff admits this assignment is not supported by case authority.

We now come to the primary and crucial question presented for decision. Did the trial court err in allowing defendant's motion for judgment as of nonsuit?

In considering this question we recognize the familiar rule that "On a motion for judgment of compulsory nonsuit, plaintiff's evidence is to be taken as true, and considered in the light most favorable to him, giving him the benefit of every fact and inference of fact pertaining to the issues which may be reasonably deduced from the evidence. Plaintiff's evidence must be considered in the light of his allegations to the extent the evidence is supported by the allegations. Defendant's evidence which tends to impeach or contradict plaintiff's evidence is not to be considered. Discrepancies and contradictions in plaintiff's evidence do not justify a nonsuit, because they are for the jury to resolve." King v. Bonardi, 267 N.C. 221, 148 S.E.2d 32; 4 Strong, N.C. Index, Trial, Sec. 21; Supp. to Vol. 4, Ibid Sec. 21.

It is seriously contended by the defendant that the plaintiff did not offer sufficient evidence to sustain the allegations of his complaint; however, conceding arguendo, that there is evidence of negligence on the part of the defendant sufficient to sustain plaintiff's allegations of actionable negligence, the plaintiff's own evidence inescapably shows that plaintiff failed to use ordinary care for his own safety and that such want of due care was at least one of the proximate causes of his injury.

"The law imposes upon a person sui juris the duty to use ordinary care to protect himself from injury, and the degree of such care should be commensurate with the danger to be avoided." Rosser v. Smith, 260 N.C. 647, 133 S.E.2d 499.

In the case of Deaton v. Board of Trustees of Elon College, 226 N.C. 433, 38 S.E.2d 561, an experienced electrician was employed by an independent contractor to replace poles in an existing line, involving the transfer of wires from the old to the new poles. The lineman knew that two of the wires were light circuit wires and three were high tension wires. One of the high tension wires was fastened to the side of the house with house brackets in a manner usually employed for low tension wires solely. The lineman had rubber gloves which would have protected him from injury. He caught hold of the high tension wire with his bare hand while standing on wet ground, and was electrocuted. Barnhill, J. (later C. J.), speaking for the Court in affirming the judgment entered in the court below, stated: "``It has been repeatedly held that where one knowingly places himself in a place of danger which he might easily have avoided he assumes all the risks incident thereto.' (Citing cases) Furthermore, in respect to the work being performed by him, ordinary care means the highest degree of care (citing cases)."

We observe, parenthetically, that the case of Deaton v. Board of Trustees of Elon College, supra, can be distinguished from the instant case to the advantage of the defendant, in that the Deaton case involved latent defects of which contractee knew, or should have known, and of which the contractor had no knowledge and could not have reasonably discovered. The instant case reveals facts that tend to show that the danger was, or should have been, obvious to the plaintiff.

In the case of Register v. Tidewater Power Co., 165 N.C. 234, 81 S.E. 326, plaintiff sued the electrical company for the wrongful death of her intestate, alleging negligence in not shutting off its current while intestate was engaged in his employment of working upon the wires of the company. It was there held the intestate assumed the risks of all danger necessarily incident to the employment he was engaged in, it appearing from the testimony of his own witnesses that the injury would not have occurred had he used the rubber gloves furnished him, and that he was an experienced person who should have known the danger in thus acting. The Court sustained judgment of nonsuit entered by the lower court.

In the instant case plaintiff was an experienced lineman, and at the particular time was in charge of a work crew. He was familiar with approved and recognized safety practices and had the necessary safety equipment not only available but within reach. He stated, "(I)f there had been rubber between me and the current I probably would not have been hurt."

Thus it appears that in the face of obvious and recognized danger he turned his back on a known safe course of conduct and embraced a course of danger in handling a dangerous instrumentality.

The evidence elicited from his own witnesses requires the inevitable conclusion that plaintiff's conduct constituted a failure to use ordinary care for his own safety, which, if not the sole proximate cause, was at least one of the direct proximate causes of his own injury.

The judgment of the court below is

Affirmed.