Lynch ex rel. Lynch v. Carolina Telephone & Telegraph Co.

Clarkson, J.

The defendant abandons all of its exceptions and assignments of error except one and says that “the single question presented by this appeal is the correctness of the action of the trial court in overruling defendant’s motion for judgment as in case of nonsuit-, C. S., 567, at the close of plaintiff’s evidence and at the close of all the evidence.

The plaintiff was injured during an electrical storm when within two feet of defendant’s telephone installed in her home by receiving a shock caused by a discharge of lightning, which damaged the telephone and connecting equipment. The negligence of defendant consisted in its failure to have a type of ground connection such as was approved and in general use. The defendant’s position is that there was no evidence that its negligence, if conceded, was the proximate cause of the injuries.” We think the court below made no error in overruling defendant’s motions.

The defendant in its brief states so well its position that we quote it: “The defendant concedes that it was fixed with knowledge that lightning might be conducted over its telephone wires to and into plaintiff’s home and there do injury, and that it was its duty to provide all known and approved devices in general use for preventing such consequences and guarding against accidents from lightning. Defendant further concedes that plaintiff’s case was sufficient to be submitted to the jury from the standpoint of whether or not the method of grounding used by defendant at plaintiff’s home at the time of the accident was such as was approved and in general use, but defendant insists that plaintiff’s case was fatally defective in that it failed to show any causal connection between the negligence and the injuries; that as to this essential element of actionable negligence the jury necessarily was left to guess and speculate, and that for this reason the motion for judgment of nonsuit should have been allowed. The defendant’s position is based upon the principle, which we assume is not seriously questioned, that the evidence in an action for personal injuries resulting from negligence must show not only the negligence and the injuries but the causal connection between the two. We admit that generally the question of- whether or not tbe negligence was tbe proximate cause of tbe injury is a question of fact for tbe jury to determine, but take tbe position tbat there is a preliminary question for tbe Court to determine, tbat is, wbetber or not there is any substantial evidence upon which to base tbe finding by tbe jury, just as, while tbe question of wbetber or not tbe defendant was negligent is for tbe jury to find, it is for tbe court to determine whether or not there is any evidence of it.”,

Tbe principle of law is well settled tbat tbe negligence must be tbe proximate cause of tbe injury — there must be a causal relation between tbe negligence and tbe injury. Byrd v. Express Co., 139 N. C., at p. 273; Pangle v. Appalachian Hall, 190 N. C., 833; Smith v. Wharton, 199 N. C., 246; Denny v. Snow, 199 N. C., 773; Tuttle v. Bell, 203 N. C., at p. 154; Grimes v. Coach Co., 203 N. C., 605.

In Rountree v. Fountain, 203 N. C., at p. 383, where a nonsuit was granted, this Court said: “Tbe plaintiff has tbe burden of establishing tbe proximate causal relation of tbe alleged negligence to tbe injury and death, and in bis search for it be is led into tbe uncertain realm of conjecture.”

Tbe settled rule is tbat upon a motion as of nonsuit tbe evidence, wbetber offered by tbe plaintiff or elicited from defendant’s witnesses, is to be considered in tbe light most favorable to tbe plaintiff, and be is entitled to every reasonable intendment thereon and every reasonable inference to be drawn therefrom.

Pattie P. Lynch, tbe injured girl, testified in part: “Tbe telephone in question was connected to tbe wall about four feet from tbe floor, I expect. In passing from tbe bed room going towards tbe kitchen through tbe dining room on tbe day in question, I bad to pass within approximately two feet of tbe telephone in question. I recall going right near tbe telephone on tbat night and as I approached tbe telephone in tbat passageway, something like a sound bit me on tbe right side of the bead and tbat is all I know.”

F. B. Lynch, tbe father testified, in part: “Tbe telephone was placed in my bouse on tbe customary basis of service. I bad paid for tbe service twelve months in advance. I knew nothing about tbe telephone apparatus and relied upon tbe telephone company. I saw tbe bolt of lightning about 50 yards from tbe telephone line. I saw it on tbe wire tbat came in tbe bouse probably about 50 yards from tbe bouse. It was so quick I could not tell. I later observed tbe poles upon which these wires were strung and as much as a half a mile up tbe road from my bouse tbe poles were affected by tbe lightning, little pieces knocked off on tbe ground where tbe lightning came on down. At tbe time tbat Pattie was hurt, there was a tremendous explosion. It was worse than a shot gun, something like a blasting at a stone quarry. The house was full of smoke and odor and every one in it was scared to death, not only excited about her, but scared naturally. The little piece of wire that came from the ceiling that was attached to the phone, was swealed (scorched or singed) and the ceiling in the house was smoked. The house was not damaged in any other way. By swealed, I mean swealed or smoked. It was not burnt or stained. It was swealed next to the telephone.”

All the elements of actionable negligence can be proved by circumstantial as well as direct evidence. In the present case the evidence is to the effect that the injured girl was within two feet of the telephone “right near — something like a sound hit me on the right side of the head.” The father testified that he saw the bolt on the telephone line about 50 yards on the wire that came into the house. “The little piece of wire that came from the ceiling that was attached to the phone was swealed.” “It was swealed next to the telephone.” One sees a smoking gun, hears the explosion and the gun is pointed in the direction of a man or a bird, the man or bird falls. One hears a hen cackle coming from a brush heap or hen house and on going to the brush heap or hen house one finds a warm egg. (There is an old saying “It looks like wisdom a hen never cackles until she lays an egg.”) The evidence, though circumstantial, would be sufficient to be submitted to a jury to pass on.

The evidence on the part of plaintiff sustained the material allegations of the complaint. These were denied by defendant and its evidence sustained its contentions. The matter on all the ingredients of actionable negligence, including proximate cause, we think in this ease there was sufficient evidence to be submitted to a jury to determine. The probative force is for them. The charge of the court below is not in the record and the presumption of law is to the effect that the court charged the law correctly applicable to the facts.

The liability of telephone companies is well stated in Jones, 2d ed. Telegraph and Telephone Companies, part sec. 198, p. 225, ei seq.: “Telephone companies should equip their telephones which they have installed in buildings with known and approved devices so as to prevent their wires from conducting lightning or excessive currents of electricity to or into said buildings; and, in the discharge of such duty, they must exercise the care of a prudent person under like circumstances, otherwise they will be liable to any one injured thereby. Consequently they will be liable for personal injuries to one using their instruments in the ordinary manner during an ordinary electrical disturbance, or from a discharge of electricity from wires to persons not actually coming in contact therewith. Furthermore, where so dangerous an agency as electricity is undertaken to be delivered into houses by electrical companies for daily use, very great care and caution should be observed, and such a degree thereof as is commensurate with the danger involved, and which is enhanced by the lack of the consumer’s knowledge of the safety of the means and appliances employed to effect the delivery. It is generally held that in case of injuries sustained from electric appliances on private property the doctrine of res ipsa loquitur applies where it is shown that all the appliances for generating and delivering the electric current are under the control of the person or company furnishing the same. So, also, the company will be liable if the injury results, not from a shock received from an excessive current of electricity, but because of the negligence of the electric company in not properly attaching its fixtures.”

In 26 R. C. L., part sec. 40, “Telegraphs and Telephones,” at p. 531-2, the following principle is laid down: “A duty is imposed upon telephone companies to adopt precautions for preventing charges of atmospheric electricity from entering buildings over their telephone wires; and if there are known and approved appliances or devices which may prevent injury to persons or property from the above cause, due care should be used in selecting, placing and maintaining the same to such extent as may be reasonably necessary and effective, and for failure to perform the duty imposed upon it in this respect the company may become liable for injury or death occasioned thereby, even though the person injured in such case was not using the telephone. Such wires should also be properly insulated where the company is bound to know that they could become the conductor of a deadly current heavily and dangerously charged; and if a person is injured by an electric current from a telephone on his premises, such fact of itself is evidence of negligence on the part of the company.”

In Pearce v. Mountain States Tel. & Tel. GCo. (Colo.), 76 L. R. A., 1918-F, at p. 1105, the Court said, in part: “There was evidence that an excess current of electricity, induced by lightning, was conveyed over the telephone wires into plaintiff’s building, setting it on fire. Defendant was bound to know that its wires might become charged with a dangerous current induced by lightning, which made it the duty of the company to use reasonable precaution to guard against fire. Because such excess current was produced by lightning makes no difference in defendant’s liability, if it could have avoided the injury by exercising ordinary care and diligence. From the business in which defendant is engaged, it is presumed to possess special knowledge and skill in such matters, not possessed by laymen, which it was its duty to use for the protection of its patrons, no matter whether the current was generated by it or produced by lightning. It was as much its duty to be diligent in affording protection against á current likely to come over tlie wires not generated by it, as a current it generated, and it cóuld not escape this responsibility by pleading that the excess current was induced by lightning. No one was responsible for the lightning; but if defendant’s faulty installation or management of the phone and its appliances was responsible for the excess current coming over the wires, entering the building and doing the damage, or if by the use of ordinary and reasonable care, precaution, and diligence it could have avoided the injury, it is responsible.” Turner v. Power Co., 154 N. C., 131; Starr v. Telephone Co., 156 N. C., 435; Shaw v. Public-Service Co., 168 N. C., 611; McAllister v. Pryor, 187 N. C., 832; Elliott v. Comrs. of Lexington, 201 N. C., 838.

We think the principle on which this action was tried is well settled in this State. The evidence was sufficient to have been submitted to the jury on the question of actionable negligence. The question of proximate cause was for the jury to determine. There is no evidence of an intervening cause that produced the injury. In law we find

No error.