Sloan v. CAROLINA POWER AND LIGHT COMPANY , 248 N.C. 125 ( 1958 )

102 S.E.2d 822 (1958) 248 N.C. 125

Robert P. SLOAN, Administrator of the Estate of Joe R. Sloan, Deceased,
v.
CAROLINA POWER AND LIGHT COMPANY.

No. 246.

Supreme Court of North Carolina.

April 9, 1958.

Richard M. Welling, Ernest S. DeLaney, Jr., Charlotte, for plaintiff appellant.

Taylor, Kitchin & Taylor, Wadesboro, Carswell & Justice, Charlotte, and A. Y. Arledge, Raleigh, for defendant appellee.

DENNY, Justice.

The plaintiff's assignments of error Nos. 1, 2, 3 and 4 are directed to the refusal of the court below to permit plaintiff to introduce in evidence Section 233, Table 3, page 69, of the National Electrical Safety Code, issued 15 August 1949, by the United States Department of Commerce, Bureau of Standards, which the plaintiff contends contains the clearance requirements between a power line carrying 12,000 volts and a telephone line. The defendant did not concede the correctness of the plaintiff's contention and objected to the introduction of the Code as well as the proffered evidence based thereon. These objections were sustained.

In Lutz Industries v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333, 340, Parker, J., in speaking for the Court, pointed out that in the 1954 Cumulative Supplement to 20 Am.Jur., Evidence, page 111 (now in 1957 Cumulative Supplement to 20 Am. Jur., Evidence, page 129), it is written: "With the apparent exception of one jurisdiction, (Alabama), safety codes which have been issued by governmental departments or commissions, or promulgated by voluntary associations for their informative value and not as regulations having the force of law, are not admissible to prove the truth of the statements therein contained."

It was also pointed out in the above opinion that in Annotation:—Evidence— Safety Codes, 122 A.L.R. 644, at page 646, it is said: "That the general rule against admission in evidence, in negligence actions, of safety codes or rules is restricted to codes or rules not having the force of law is shown by decisions in various cases involving safety rules enforceable as laws." Lutz Industries v. Dixie Home Stores, supra; Mississippi Power & Light Co. v. Whitescarver, 5 Cir., 68 F.2d 928; Grant v. Libby, McNeill & Libby, 160 Wash. 138, 295 P. 139; Annotation:—Evidence—Safety Codes, 122 A.L.R. 644.

In the case of Mississippi Power & Light Co. v. Whitescarver, supra, it was held that the National Electrical Safety Code (apparently similar to the Code now under consideration), issued by the United States Department of Commerce, Bureau of Standards, had been properly excluded from evidence in the action to recover from the electric company for the accidental electrocution of the plaintiff's decedent. It had been conceded that the code had no compulsive force—that no law required it —and the Court pointed out that it represented merely the opinion of the compilers, and that [68 F.2d 930,] "its preface states that as to many matters there are conflicting views, and that especially many changes had been made in this edition touching line construction and that there would be future growth and development, and criticism is invited." The Court said: "It thus appears from the book itself what we should have known anyway, that it deals not with an exact science or mathematical or factual certainties, but with a controversial and developing science in which opinions may vary and experience work great changes. Books in such a field are like medical works rather than like almanacs, mathematical tables, approved histories, census compilations or weather reports. They are at last only the expert opinions of the authors, delivered not under oath nor subject to cross-examination, without opportunity to qualify or explain them, and really without certainty that the author still adheres to the opinions expressed when the book was written."

In Lutz Industries v. Dixie Home Stores, supra, certain provisions of the National Electrical Code, as approved by the American Standards Association, with respect to the installation of electric wiring in buildings, had been given the force of law by our General Assembly. But, there is nothing in the record before us to indicate that any approval has been given to the National Electrical Safety Code by our General Assembly with respect to the subject under consideration that would give the Code the force of law in this jurisdiction. Hence, the rulings of the court below in excluding the offered section of the National Electrical Safety Code and the proffered evidence based thereon are sustained.

In our opinion, the only additional question raised on this appeal that merits discussion is whether or not the court below committed error in sustaining the defendant's motion for judgment as of nonsuit.

In considering a motion for judgment as of nonsuit, the evidence is to be considered in the light most favorable to the plaintiff and he is entitled to every reasonable inference to be drawn therefrom. Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209.

The plaintiff contends that the defendant negligently constructed and maintained its power line; that the defendant allowed its power line, which consisted of two energized wires and a neutral, to cross too close to the telephone lines at the intersection where plaintiff's intestate was killed. There is no evidence whatever tending to show the actual or approximate clearance between the telephone wires and the power wires at the intersecting point before the accident. This would seem to be the crucial defect in the plaintiff's evidence. There is evidence of the distance of separation after the accident, but not before. Ordinarily, without evidence to the contrary, the inference would be that the defendant had provided proper clearance.

As stated in 65 C.J.S. Negligence § 204, p. 954, et seq., "Negligence on the part of the defendant, as a general rule, is never presumed but is a matter for affirmative proof. * * * the presumption is in favor of innocence or performance of duty and against the existence of negligence, and in the absence of affirmative proof it will be presumed that defendant or his servants were not guilty of negligence but exercised due care with respect to the thing or condition which caused the accident." Martin v. United States, 96 U.S.App.D.C. 294, 225 F.2d 945; F. W. Woolworth Co. v. Williams, 59 App.D.C. 347, 41 F.2d 970; Bush v. Harvey Transfer Co., 146 Ohio St. 657, 67 N.E.2d 851; Atlantic Coast Line R. Co. v. Brown, 82 Ga.App. 889, 62 S.E.2d 736; Yeary v. Holbrook, 171 Va. 266, 198 S.E. 441.

A nonsuit is proper where the plaintiff does not offer evidence to support his allegations of actionable negligence.

In Millers Mutual Insurance Ass'n of Illinois v. Atkinson Motors, Inc., 240 N.C. 183, 81 S.E.2d 416, 419, Bobbitt, J., in speaking for the Court, said: "Ordinarily, in a negligence case, it is incumbent upon plaintiff to allege and prove facts constituting actionable negligence; and, when the evidence fails to disclose actionable negligence as alleged, nonsuit is proper. Conjecture and surmise will not suffice."

If it be conceded that the proper clearance between a 12,000-volt power line and a telephone line is six feet, as contended by the plaintiff, no evidence was offered to substantiate his allegation that a proper clearance did not exist before the employees of the telephone company pulled the new wire over the old telephone wires.

Evidence was introduced tending to show the height of the wires of the defendant power company from the ground after the accident, and there is no contention that the contact with the power line changed the position of such wires in any respect. Likewise, evidence was introduced as to the height of the telephone pole located 33 feet 10 inches southeast of the power line and the wires attached to the 10-foot cross-arm. The evidence shows that the next telephone pole to the northwest of the power line was 245 feet, making the telephone poles 278 feet 10 inches apart at the span involved; that the power line poles were 384 feet apart at the power line span involved. However, there is no evidence as to the sag of the power wires in relation to the sag in the telephone wires before the accident. The plaintiff's evidence, except that of Thomas and Harper, hereinabove set out, is unequivocally to the effect that by observing the power and telephone lines from the ground, the distance of the clearance between the power wires and the telephone wires could not be ascertained.

Ordinarily, "where a particular state of things is once proven to exist, it is often said that there is a presumption of continuance in that state without change * * *." Stansbury, North Carolina Evidence, section 237, page 491.

Conceding that a factual situation once proven is presumed to continue in existence unless there is proof to the contrary, the existence of a condition at the time of an accident is not presumed to have existed prior thereto, and particularly when the accident resulted from an operation that the evidence tends to show changed the condition and that such change was the proximate cause of the injury or one of the proximate causes thereof. Any inference or contention that the telephone wires were in the same location or condition before the accident as they were afterwards, must be predicated on evidence of such location or condition prior to the accident. The general rule in this respect is stated in 31 C.J.S. Evidence § 140, p. 789, as follows: "As a general rule mere proof of the existence of a present condition or state of facts or proof of the existence of a condition or state of facts at a given time, does not raise any presumption that the same condition or facts existed at a prior date, since inferences or presumptions of fact ordinarily do not run backward."

Likewise, in the case of Liverpool & London & Globe Ins. Co. of Liverpool, England v. Nebraska Storage Warehouses, 8 Cir., 96 F.2d 30, 36, it is said: "* * * that while a given condition, shown to exist at a given time, may be presumed to have continued, there is not, on the other hand, any presumption that it existed previous to the time shown."

In our opinion, the evidence on this record is not sufficient to show actionable negligence on the part of the defendant.

We express no opinion on the questions argued in the defendant's brief relating to insulated negligence and contributory negligence.

The judgment of the court below is

Affirmed.