Lambert v. Duke Power Co. , 32 N.C. App. 169 ( 1977 )

231 S.E.2d 31 (1977) 32 N.C. App. 169

William L. LAMBERT
v.
DUKE POWER COMPANY, a corporation.

No. 7626SC585.

Court of Appeals of North Carolina.

January 5, 1977. Certiorari Denied March 7, 1977.

Jones, Hewson & Woolard by Harry C. Hewson and John D. Warren, Charlotte, for plaintiff-appellant.

William I. Ward, Jr., and W. Edward Poe, Jr., Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by William E. Poe and Irvin W. Hankins, III, Charlotte, for defendant-appellee.

Certiorari Denied by Supreme Court March 7, 1977.

MORRIS, Judge.

The sole question for consideration on this appeal is whether the trial judge properly entered summary judgment for defendant. Upon a motion for summary judgment, the court does not attempt to resolve issues of fact but to determine whether there is a genuine issue of material fact to be tried. Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974); Reavis v. Campbell, 27 N.C.App. 231, 218 S.E.2d 873 (1975). The moving party must make it perfectly clear that he was entitled to judgment as a matter of law. Builders Supply Co. v. Eastern Associates, 24 N.C. App. 533, 211 S.E.2d 472 (1975).

Plaintiff contends that defendant did not establish as a matter of law that plaintiff was contributorily negligent and thereby barred from recovery. We disagree.

Answers to interrogatories and plaintiff's own deposition show that plaintiff had worked on top of the same sign on at least two previous occasions; that he believed a co-worker ". . . did mention there was a high tension line above the sign"; that prior to the accident he occasionally looked over and saw the wire but was looking downward at the time he came in contact with it; that when the accident occurred, plaintiff was standing on two iron rails which ran along the inside of the sign approximately 12 inches from its top; that he had been leaning over to pull up the new wood panel into place when he raised up slightly and turned around to go to the center of the sign; that he was aware of the presence of the wire but thought that ". . . [i]t appeared far enough away that it was safe to work"; and that as he turned, the uninsulated wire touched him on the neck just below his right ear and the resulting electrical shock threw him to the ground.

In Floyd v. Nash, 268 N.C. 547, 151 S.E.2d 1 (1966), plaintiff's intestate died as a result of electrical shock when the blower pipe of his truck came in contact with an uninsulated wire of the defendant power company. The evidence showed that the deceased knew of the existence of the wire and its proximity to the point at which he brought his truck in contact with it. The Supreme Court held that plaintiff's intestate was contributorily negligent as a matter of law.

"Even if negligence by either of these defendants could reasonably be inferred upon the evidence in this record, the evidence leads inescapably to the conclusion that the deceased . . . was guilty of contributory negligence. Knowing of the presence of the power line, and having filled his tank on previous occasions, the deceased, for some unknown reason, permitted the metal blower pipe . . to come in contact with the power line. This tragic lapse of attention to a known danger in the immediate vicinity must be deemed negligence by the deceased." 268 N.C. at 551, 151 S.E.2d at 4.

Here, the evidence shows that plaintiff had previously worked on the sign and had been warned of the presence of the wire by his co-worker. He admitted that he knew of the existence of the wire but thought that he could safely work around it. We believe plaintiff's conduct evidenced ". . a tragic lapse of attention to a known danger. . ." and thereby constituted contributory negligence as a matter of law. See also Bogle v. Power Co., 27 N.C.App. 318, 219 S.E.2d 308 (1975), discretionary review den., 289 N.C. 296, 222 S.E.2d 695 (1976).

For the reasons stated above, the summary judgment is

Affirmed.

CLARK and ARNOLD, JJ., concur.