Snow v. Duke Power Co.

256 S.E.2d 227 (1979) 297 N.C. 591

William G. SNOW and Grovewood, Inc.
v.
DUKE POWER COMPANY.

No. 113.

Supreme Court of North Carolina.

July 12, 1979.

Tornow & Lewis by Michael J. Lewis, Winston-Salem, for plaintiffs-appellants.

William I. Ward, Jr., Charlotte, Folger & Folger by Fred Folger, Jr., Mount Airy, for defendant-appellee.

HUSKINS, Justice:

The sole question presented on this appeal is whether the evidence is sufficient to repel defendant's motion for directed verdict and carry the case to the jury. We hold that it is.

Defendant's motion at the close of all the evidence for directed verdict under Rule 50(a), Rules of Civil Procedure, presents the question whether the evidence, viewed in the light most favorable to plaintiff, will justify a verdict in his favor. Rayfield v. Clark, 283 N.C. 362, 196 S.E.2d 197 (1973). In passing upon such motion, "the evidence in favor of the non-movant must be deemed true, all conflicts in the evidence must be resolved in his favor and he is entitled to the benefit of every inference reasonably to be drawn in his favor." Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973). It is only when the evidence is insufficient to support a verdict in the non-movant's favor that the motion should be granted. Rappaport v. Days Inn, 296 N.C. 382, 250 S.E.2d 245 (1979).

Electricity is an inherently dangerous substance. "Consequently, a company supplying it to a customer's building must use a high degree of foresight and must exercise the utmost diligence consistent with the practical operation of its business." Keith v. Gas Co., 266 N.C. 119, 146 S.E.2d 7 (1966). Such company is not, however, liable for damages resulting from a fire, and is entitled to directed verdict, unless plaintiff presents evidence sufficient to justify a jury in finding that the fire was "proximately caused by the electricity supplied by the company to the building and that, in so supplying the electricity, the company was negligent." Id.

Plaintiffs contend the doctrine of res ipsa loquitur applies in the factual context of this case and that, aided by said doctrine, the evidence is sufficient to carry the case to the jury. Res ipsa loquitur is an evidentiary rule which in a proper factual setting permits a party to prove the existence of negligence by merely establishing the circumstances of an occurrence that produces injury or damage. 2 Stansbury, N.C. Evidence, § 227 (Brandis Rev. 1973). The principle of res ipsa loquitur is generally stated as follows: "[W]hen a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those, who have the management use the proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care." Newton v. Texas Co., 180 N.C. 561, 105 S.E. 433 (1920). Simply put, the doctrine of res ipsa loquitur recognizes that "common experience sometimes permits a reasonable inference of negligence from the occurrence itself." Stansbury, supra, § 227. Thus, in order to be aided by the inference of negligence permitted under res ipsa loquitur plaintiffs in this case must establish: (1) that the fire which destroyed the barn was electrical in origin; (2) that defendant had the exclusive control and management of the electrical current which caused the fire; and (3) that such electrical fires do not ordinarily occur if the party who has control of the electrical current uses proper care.

When laid alongside the elements necessary to invoke the doctrine of res ipsa loquitur, what does the evidence show?

With respect to the sufficiency of the evidence on the actual cause of the fire, we note at the outset that the origin of a fire may be established by circumstantial evidence. Jenkins v. Electric Co., 254 N.C. 553, 119 S.E.2d 767 (1961); Simmons v. Lumber Co., 174 N.C. 220, 93 S.E. 736 (1917). If the facts proven establish the more reasonable probability that the fire was electrical in origin, then the case cannot be withdrawn from the jury though all possible causes have not been eliminated. Patton v. Dail, 252 N.C. 425, 114 S.E.2d 87 (1960); Drum v. Bisaner, 252 N.C. 305, 113 S.E.2d 560 (1960); Fitzgerald v. R. R., 141 N.C. 530, 54 S.E. 391 (1906). "Whether the circumstantial evidence is sufficient ``to take the case out of the realm of conjecture and into the field of legitimate inference from established facts,' must be determined in relation to the attendant facts and circumstances of each case." Drum v. Bisaner, supra (citations omitted).

The evidence tends to show that the fire was first seen burning "just right up over the meter box" on the front (south) side of the barn. The fire was about the size of a "big eating table" and in its first stages was strictly localized to the area right above the meter box. The fire burned from the front to the back of the barn (south to north). The back (north) side of the barn was not burning when reached by fire fighters some ten to twenty minutes after their arrival on the scene. On the night of the fire the wind was blowing strongly from north to south.

The cable running from the utility pole to the weatherhead on the south side of the barn had electrical current running through it on the night of the fire. Similarly, the riser wire running from the weatherhead to the meter box had electrical current running through it to the test block in the meter box. Soon after his arrival at the scene, the fire chief found the cable running from the weatherhead to the power pole charred at the end closest to the barn. The fire chief touched the wire and received an electrical shock from it.

Plaintiffs did not have any gasoline or other combustible materials stored in the barn. There were no stoves of any kind in the barn. There were no electrical outlets or other wiring inside the barn. The electric "weed chopper" fence which enclosed the pasture on the back side of the barn was not energized on the night of the fire. No evidence of arson was found by the fire chief. On the night of the fire there was no lightning or thunder after 2 a. m.

The foregoing evidence, considered in the light most favorable to plaintiffs, would permit a jury to find: (1) that the fire originated at a point where the wiring connecting the weatherhead to the meter box was "hot" with electrical current; (2) that the initially compact and concentrated nature of the flames was consistent with an electrical fire, see Collins v. Electric Co., 204 N.C. 320, 168 S.E. 500 (1933); (3) that the fire took some time to spread from the front of the barn — where the "hot wires" were located — to the back of the barn. Moreover, plaintiffs' evidence pointing affirmatively to the electrical origin of the fire is bolstered by other evidence tending to eliminate other likely causes of the fire. This evidence tends to negative stored combustibles, the electric "weed chopper" fence, interior wiring, stoves, electrical appliances, arson, and lightning as probable causes of the fire. It may be said then, that the evidence on the actual cause of the fire is not merely conjectural or speculative but is such as would warrant a jury in forming a legitimate conclusion that the fire was caused by electricity transmitted over defendant's power lines.

In concluding that there was insufficient evidence as to the cause of the fire, the Court of Appeals relied on Phelps v. Winston-Salem, 272 N.C. 24, 157 S.E.2d 719 (1967), and Maharias v. Storage Company, 257 N.C. 767, 127 S.E.2d 548 (1962). This reliance is misplaced. The holdings in Phelps and Maharias are limited to the particular facts presented in those cases and have no application to the very different factual context presented here. We note, moreover, that the facts in this case bear a stronger resemblance to the facts in Collins v. Electric Co., supra, than to the facts in Phelps and Maharias. In Collins, this Court concluded that the evidence of causation was sufficient to permit submission of the issue to the jury.

Plaintiffs must next establish that defendant had the exclusive control and management of the electrical current which allegedly caused the barn to burn. The evidence on this point tends to show that defendant generated the electricity which caused the fire. Defendant transmitted this electricity to plaintiffs through high voltage transmission lines which led to a power pole located approximately 300 yards across the highway from the barn. On this same pole was a transformer designed to reduce the high voltage electricity entering it from the transmission lines to appropriate voltage levels for the consumer. This electricity was transmitted from the utility pole to plaintiffs' barn by a cable which was connected to a weatherhead which itself was attached to the eaves on the front side of plaintiffs' barn. At the weatherhead, the cable from the power pole was connected to a large wire, called the riser wire, which ran down the side of the barn some eight to ten feet and connected to the test block in the meter box installed some four to five feet above the ground.

With the exception of the riser wire, defendant owned the entire transmission system which brought power from its generators to the barn. Plaintiff Grovewood, Inc. owned and originally installed the riser wire; however, defendant made and maintained the connections between the riser wire and its transmission cable at the weatherhead and also at its meter box. Moreover, defendant's meter readers and servicemen regularly inspected the riser wire on their visits to the premises as part of their assigned duties.

The foregoing evidence, considered in the light most favorable to plaintiffs, indicates that defendant maintained the system by which electricity was generated and delivered to plaintiffs' barn and thus permits a jury finding that defendant had the exclusive control and management of the instrumentality which allegedly caused the fire. Plaintiff Grovewood, Inc.'s ownership and installation of the riser wire does not preclude a jury finding of exclusive control in light of the evidence tending to show that the riser wire was used exclusively by defendant as one of the links in the transmission system by which electricity was delivered to plaintiffs' barn. This evidence indicates that defendant made and maintained the connections between the riser wire and other links in the transmission system — i. e., the weatherhead and the meter box — and regularly inspected the riser wire. Thus, a jury could reasonably infer that defendant, while not the legal owner of the riser wire, in effect maintained exclusive control over the suitability and safety of the riser wire as a transmitter of electricity.

Plaintiffs' evidence is sufficient to permit a finding that the fire was caused by electricity transmitted over power lines under the exclusive management and control of defendant. The final question, then, in determining if a permissible inference of negligence arises under the doctrine of res ipsa loquitur, is whether such fires ordinarily occur in the absence of negligence. Our cases have generally recognized that it is not within the realm of ordinary experience for injuries of this nature to occur in the absence of negligence. See Collins v. Electric Co., supra; Lawrence v. Power Co., 190 N.C. 664, 130 S.E. 735 (1925); McAllister v. Pryor, 187 N.C. 832, 123 S.E. 92 (1924); Turner v. Power Co., 154 N.C. 131, 69 S.E. 767 (1910). In Collins v. Electric Co., supra, we held res ipsa loquitur to be applicable in a factual context closely resembling the facts in this case. Accordingly, we conclude that a permissible inference of negligence arises here under the doctrine of res ipsa loquitur and that plaintiffs have made out a case for the jury on the issue of defendant's negligence. It follows that defendant's motion for directed verdict at the close of all the evidence was properly denied by the trial court.

For the reasons stated the decision of the Court of Appeals is reversed and the cause remanded for reinstatement of judgment on the verdict.

REVERSED AND REMANDED.