Mitchell v. Charleston Light & Power Co. , 45 S.C. 146 ( 1895 )

The opinion of the Court was delivered by

Mr. Justice Gary.

The appellant is a corporation engaged in generating and furnishing electricity in the city of Charleston, S. C., for the purpose of illumination and motive power. On the 16th of December, 1893, during the prevalence of a violent wind storm, one of the electric wires of the defendant, fully charged with electricity, broke, and the two severed ends rested on the ground in one of the thoroughfares of the city. The defendant’s testimony tended to show that the wire broke about 2 o’clock, while the testimony of the plaintiff tended to show that it broke at an earlier hour in the day, and that between 12 and 1 o’clock on the day of the accident the defendant was notified that there was some trouble with its wires, and that they were dangerous.

At about 3 o’clock p. m., the plaintiff, while passing through this thoroughfare, was injured by the fallen wire. He whs instantly shocked upon coming in contact with it, and fell to the earth unconscious. For some time thereafter he was confined to his bed, during which period he suffered greatly. His hand was badly burnt, and he lost the use of two fingers. This action was instituted to recover damages for such injuries. The plaintiff charged negligence on the part of the defendant, in that it permitted its wires, charged with electricity, to hang suspended over a thoroughfare of the city so as to become dangerous to passengers on the street, and that the plaintiff, a passenger, in consequence thereof, was seriously injured by the said wire charged with electricity, and was damaged to the extent of $20,000.

The defendant joined issued on these allegations, and set up the defense of contributory negligence on the part of the plaintiff; also set up the further defense, that the injury resulted from the act of God. The jury found a verdict in favor of the plaintiff for f10,000. The defendant moved for a new trial before his Honor, Judge Gary, who granted an order for a new trial unless the plaintiff would remit $2,500 of the verdict, which the plaintiff did.

The charge of the presiding Judge will be set out in the report of the case.

The appellant’s first exception is as follows: 1. “That the presiding Judge erred in charging the jury as follows: ‘If a cyclone, that could not be anticipated or reasonably foreseen, was the cause of that wire falling, and the company was not negligent in allowing it to remain there for an unreasonable length of time, then, under those circumstances, it would not be liable.’ ”

1 It is not contended that the detached portion of the charge in itself states an erroneous principle of law, but that it is misleading, inasmuch as the jury might have inferred that if a cyclone, that could have been anticipated or reasonably foreseen, was the cause of the wire falling, and the company was not negligent in allowing it to remain there for an unreasonable length of time, still, under those circumstances, it would be liable. The appellant also contends, “that the presiding Judge, in confining his declaration to the effect of the class of storms commonly designated as cyclones, rejected the proposition that any other class of storm, or that a storm of not quite the same degree of violence as a cyclone, would operate to relieve the defendant from liability, were it in other respects free from negligence.” Under the numerous decisions of this Court, the principle is well established that the charge of the Circuit Judge to the jury must be considered as a whole. When an exception is taken to a certain portion of the presiding Judge’s charge to the jury, it is the duty of this Court, in considering the exception, to look to the entire charge, to ascertain whether or not the detached portion of the charge correctly states the views of the law which the presiding Judge intended to convey to the jury. In his charge to the jury, touching this question, his Honor said: “The question for you is: were these wires erected so as to anticipate any ordinary occurrence in the weather? Was it the act of God, or was it the careless or loose manner in which the wires were erected, which caused this wire to break? If it were the act of God — that is, such an act as a business man of ordinary forethought and prudence could not anticipate— then the company would not be liable, under those circumstances. But, on the other hand, the company is charged with so placing their wires and so keeping them in repair as to withstand the ordinary weather — rain, heat, cold, and wind. It is alleged, on the part of the company, that their wire was broken in consequence of a severe wind storm. Was it an ordinary windy day, such as is liable to occur at that time of the year, or was it one that could not be anticipated? The law does not require impossibilities. If a cyclone, that could not be anticipated or reasonably foreseen, was the cause of that wire falling, and the company was not negligent in allowing it to remain there for an unreasonable length of time, then, under those circumstances, it would not be liable. But if the accident was one due to the wires being improperly erected or improperly maintained in repair, or, having been properly erected, were broken and allowed to remain on the streets an unusually long time, then, if the injury to the plaintiff occurred under those circumstances, the company would be liable to compensate him in damages. These are the general observations that I desire to call to your attention, before passing upon the points of law I have been requested to charge you.” When that portion of the charge set out in the .exception is considered in connection with the entire charge on this question, we see no ground for sustaining the objection to it, that it might have misled the jury.

2 We come next to a consideration of appellant’s second objection to the language of the presiding Judge, contained in the first exception. The presiding Judge used the word “cyclone” in his charge to the jury, because the witnesses had testified that the day when the injury was sustained was “cyclonic;” the charge was, therefore, based upon the testimony, and applicable to this case. When the charge is considered in its entirety, we do not see how it can be construed as announcing the proposition of law, that if the defendant was free from negligence, it would still be liable if the falling of the wire was caused by a class of storm other than a cyclone, or by a storm of not quite the same degree of violence as a cyclone. The first exception is overruled.

3 The second exception is as follows: II. “That the presiding Judge erred in refusing to charge the defendant’s second request to charge, viz: that ‘if the jury find that the wire in question was broken by a storm, or from some cause beyond the control of the defendant, then no blame can attach to the defendant, from the fact that the wire fell and remained lying on the ground in the public thoroughfare, unless it was allowed to remain there after notice for an unreasonable length of time — that is, for a period of time longer than would furnish a reasonable opportunity for the removal of the wire.’ ” The words “after notice” rendered the proposition of law therein stated unsound, for the reason that the negligence of the defendant might have consisted in its failure to know the facts connected with the breaking of the wire — in other words, the defendant might have been negligently ignorant. Dist. of Columbia, 136 U. S., 463; Branch v. R. R. Co., 35 S. C., 405. It was not the duty of the Circuit Judge to strike out that part of the request to charge which rendered it defective, and then charge so much thereof as embodied a sound proposition of law. Gunter v. Graniteville Mfg. Co., 15 S. C., 443, and numerous other cases in this State. The second exception is overruled.

4 The third exception is as follows: III. “That the presiding Judge erred in refusing to charge, and in striking out from the defendant’s third request to charge, the words ‘being informed of,’ where they occur in said request immediately following the words ‘a reasonable time after.’ ” The third request to charge is as follows: “That the defendant was entitled to a reasonable time after (being informed of) the fall of the wire, in which to repair it or to remove it out of the way of persons using the streets, and if the jury find that the injury to the plaintiff occurred before the expiration of such reasonable time, then the plaintiff is not entitled to recover anything in this action.” This exception cannot be sustained. The jury might have found that the injury to the plaintiff occurred before the expiration of a reasonable time after the defendant was informed of the fall of the wire, yet this would not necessarily have precluded the plaintiff from recovering damages; because the negligence of the defendant might have consisted in failing to take proper steps to receive information concerning the condition of its wires. Under this request to charge, if the defendant was not informed of the falling of the wire until a week or a month thereafter, it would still have been entitled to a reasonable time to remove the obstruction after such notice, although it might have been negligently ignorant. The defendant was bound to exercise due diligence to receive information as to the condition of its wires, and its failure to use proper diligence in this respect would constitute negligence. The third exception is overruled.

5 The fourth exception is as follows: IV. “That the presiding Judge erred in refusing to charge the defendant’s fifth request to charge, viz: that ‘if the jury find that the plaintiff was injured by coming in contact with defendant’s wire, and that by the exercise of ordinary care he could have avoided such contact, then the plaintiff is not entitled to recover anything in this action.’ ” It would have been error on the part of the Circuit Judge to refuse this request, were it not for the fact that he, in substance, charged the proposition of law therein contained in another part of his charge to the jury, to wit: in charging the defendant’s sixth request to charge, which is as follows: “If the jury find that a want of ordinary care on the part of the plaintiff in any degree contributed to the injury, then the plaintiff cannot recover in this action.” Whether or not the plaintiff had knowledge that the wire was filled with electricity was a fact to be considered by the jury in determining the question of negligence on the part of the plaintiff in coming in contact with the wire; but the failure to make mention of the electricity, in the request to charge, did not render the proposition of law therein stated unsound. Por the reason that this request was substantially presented to the jury, the fourth exception is overruled.

6 The fifth exception is as follows: “That the presiding Judge erred in commenting upon the plaintiff’s seventh request to charge and explaining the same as follows, viz: ‘If a man is in danger, and in order to avoid that danger, bona fide does something which is dangerous, that would not be considered in law contributory negligence.’ ” These words are to be construed in connection with the seventh request to charge, which is as follows: “When one is placed by the negligence of another in a situation of peril, his attempt to escape danger, even by doing an act which is in itself dangerous, and from which injury results, is not contributory negligence, such as will prevent him from recovering.” It will be observed, that the exception does not question the correctness of the law as charged in the seventh request, but only complains of error on the part of the presiding Judge in using the foregoing words after charging said request. When the words used by the Circuit Judge are considered in connection with the seventh request, it will be seen that they do not lay down a different proposition of law from that contained in said request, and that they are simply explanatory of said request. Even if considered alone, these words do not state an erroneous principle of law, although in themselves they are not as comprehensive as might have been desired.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.