DocketNumber: 12889
Citation Numbers: 153 S.E. 119, 156 S.C. 158
Judges: MR. JUSTICE BLEASE.
Filed Date: 4/11/1930
Status: Precedential
Modified Date: 1/13/2023
The only allegation of the complaint that casts even a shadow upon the otherwise sole unclouded purpose of the pleader to allege a joint tort upon the part of the defendants, is contained in the eleventh paragraph: "That all of said acts and omissions on the part of the defendants and the agents and servants of the defendant company were negligent, willful, wanton and grossly negligent and they caused and contributed to the injury aforesaid of Robert S. Weeks, both jointly and concurrently."
After setting forth "said acts and omissions" in the clearest manner possible as the acts and omissions of the defendants jointly, the eleventh paragraph was obviously inserted for the purpose of characterizing them as negligent, willful, etc., and not for the purpose of a separate allegation of wrongful acts by servants of the company other than the one named.
If it could possibly be construed as such, it could only refer to the servants who are alleged in the fifth paragraph of the complaint to have assisted Doughty in changing the wires, as to whom there is not the slightest evidence of negligence.
This being true, it was error to charge the jury that a verdict could be rendered against the company and in favor of the defendant, Doughty, for the reason that the alleged cause of action was based upon a joint tort of these defendants; such a verdict, under the well-recognized rule declared in the leading opinion, being illogical, and for the further reason that thereby the jury was permitted to find a verdict against the company based upon a supposed act of negligence on the part of the company or of some other agent than Doughty. *Page 171
I think that the matter is conclusively settled by the two cases of Durst v. R. Co.,
In the former it was alleged that the plaintiff was injured by a lamp that slipped from the hands of a flagman who was attempting to detach it from the bracket from which it was suspended, and fell into the plaintiff's lap, in consequence of which she was injured. There was no general allegation of negligence. "Over the objection of the defendant railway company, the Circuit Judge allowed other evidence than that tending to sustain the specific act charged to the flagman, which evidence tended to show that the lamp was out of date, that it should have been fixed long ago, and that the fall was due to the negligence of some other servant than the flagman." The Supreme Court held that such evidence was incompetent and should have been excluded, and that the plaintiff should have been confined to the proof of the facts alleged in her complaint, upon which she based her right to recover.
In the latter the Court said:
"And since the injured party's right to join two or more alleged tort-feasors in one action may be sustained only upon the theory of joint liability, when a plaintiff joins two or more alleged wrongdoers as parties defendant in one action, such joinder in itself necessarily implies that he has elected to treat his injury as a joint tort, and to recover upon the theory of joint liability. Such election to sue upon the theory of joint liability logically involves the relinquishment of the right in that action to raise a 'separable controversy' with any one defendant and to recover against one or more separately upon the theory of several liability in any sense other than that the plaintiff in such joint action is not bound to recover against all, but may recover against one or more and not against others. * * *
"But since the very joinder of parties defendant in a tort action is prima facie an election to treat the injury as a *Page 172 tort for which such parties are liable upon the theory of joint liability, it is obvious that there is no necessity for such motion to elect except in a case where the complaint is susceptible of no other reasonable construction than that the plaintiff is attempting in the same action both to recover separately against one or more of the defendants upon the theory of several liability and to recover against them jointly upon the theory of joint liability."
The jury having found a verdict in favor of the defendant Doughty, the complement of the company in the alleged joint tort, it necessarily follows that the alleged joint tort has failed of maturity. The verdict logically therefore is referable to a separate and independent wrongful act of the company, or to a separate and independent wrongful act of some servant or agent other than the defendant Doughty. The leading opinion manifestly proposes to sustain it upon the separate and independent wrongful act of Bullard, the superior of the defendant servant Doughty. This as the cited cases hold cannot be permitted.
Assuming, however, for the sake of argument that it would be permissible, in an action charging a joint tort against the master and a particular servant, to sustain a recovery of damages based upon an independent wrongful act of the company or of another servant, not included in the allegations of the complaint, I do not think that the evidence warranted the submission to the jury of even the issueof negligence on the part of the company which is claimed to have existed through the conduct of Bullard, a construction engineer of the power company.
It is true that the defendant did not move for a nonsuit or a directed verdict upon this ground, nor upon the ground of the contributory negligence of the plaintiff; but it is manifest that if there was no evidence of negligence on the part of the company, either by reason of its own direct or attributed act, no actual damages were recoverable, and as a consequence no punitive damages. *Page 173
The existence of negligence is dependent upon the relation which the defendant sustained to the plaintiff and its duty to him flowing from that relation.
As is well expressed in 20 R.C.L., 46: "It is essential to liability, then that the parties shall have sustained a relationship recognized by law as the foundation of a duty or care."
Largely determinative of the issue of duty or care is the complementary rule thus expressed by the same authority at page 11: "It is an undeniable philosophic truth * * * that a person's liability for his acts, depends upon their tendency, under the circumstances, known to him." And at page 13: "On the other hand, an injury is not actionable if it could not have been foreseen or reasonably anticipated." Or in the oft-quoted and apt declaration of Chief Justice Gibson of Pennsylvania, "Precaution becomes a duty only where there is a reasonable apprehension of danger."
It is substantially declared in Barrett v. Lake Ontario Co.,
In the leading opinion the following very clear expression of the law from 20 C.J., 355 is approved: "The exercise of a sufficient degree of care requires a careful and proper insulation of all wires and appliances in places where there is a likelihood or reasonable probability of human contact therewith, and the exercise of due care to make and keep insulation perfect at places where people have a right to go on business or pleasure."
In Foster v. Union,
Further the Court said: "* * * the act here relied on to establish actionable negligence must meet the further test that it was an act or omission, from which, in the exercise of due care, danger of injury to those engaged in a legitimate use of the streets, etc., might reasonably have been anticipated or foreseen."
See also Green v. R. Co.,
In Austin v. Public Service Company,
In Bunten v. Eastern Co. (Minn.),
"Company, without reasonable cause to anticipate persons will come in dangerous proximity to wires, is not negligent in failing to place wires higher. * * *
"Company maintaining high tension wires where it has no reasonable cause to expect people will go need not provide insulation or other safeguards."
In Love v. Virginian Power Co.,
The ruling principle is quite well expressed in Thompsonv. Lamar (Mo. Sup.),
The case of Williams v. Sumter,
(By what I shall hereinafter advert to, in the conduct of the plaintiff, I do not wish it understood that any reliance is intended to be placed upon it as contributory negligence on his part. It is intended to demonstrate that his conduct was so careless, moved by his own volition, at a place and in a manner not reasonably to have been expected by the company, as to place the case beyond the possibility of evidencing any duty which the company owed him under the foregoing principles of the law of negligence.)
The undisputed facts of the case are these:
There was maintained by one Beck, at a point a few miles from Sumter, a place of amusement, consisting of camping grounds, picnic grounds, a swimming pool, and a dance hall, frequented by the public generally, "upon pleasure bent"; the principal building was occupied by a store on the ground floor and a dance hall on the second floor; it was located very near the public highway, the end of the building fronting it; on each side of the hall was a veranda, extending the length of the hall and at right angle with the front; they were used by the visitors generally; the power line of the company was located on the edge of the highway, and as it passed the front of the building, it was about 5 feet above the level of the *Page 176 floor of the veranda, and 19 inches from and 2 feet above a 3-foot banister at the highway end of the veranda; the plaintiff was sitting on the banister, one leg upon it and the other on the inside of the piazza, leaning against a post at the corner of the piazza; the wire was 19 inches away and 2 feet above him; moved by some impulse, we know not what, which he does not explain, did not know, he reached across this space and caught hold of the wire and received his injury; he admits in his testimony that he knew that the wire was there, saw it, saw that it was not insulated, and knew that if he touched it he would receive an electric shock.
The relation between the plaintiff and the company may be analyzed thus: He was a member of the public lawfully upon the premises of the amusement proprietor; a great many people were accustomed to frequent the place; the defendant knew this, and it was supplying electricity to the proprietor; the plaintiff, while enjoying the amusements furnished, was entitled to reasonable care on the part of the company in operating so dangerous an element as electricity, to so conduct its business as not to injure him. That duty arose and continued while the plaintiff was so engaged, and necessarily did not exist when, while in a position of absolute immunity from any defect in the wires, he suffered injury by reason of his own voluntary, intentional act.
That the plaintiff was guilty of negligence in needlessly, heedlessly, without motive, voluntarily grasping the known uninsulated wire, appears too plainly for discussion. He was a young man, within two days of seventeen years of age, of more than ordinary intelligence; a student at the Citadel, an institution of very high grade; he knew of the presenceof the wire and that it was uninsulated; it was in his way, or in any wise obstructing his participation in the amusements and pleasures afforded by the resort; there was no reason in the world why he should have grasped the wire, and he was unable to give any excuse for his doing so; all that he could say was that he did not know why he did it; *Page 177 that he simply reached up and caught hold of it. There was a feeble effort to lay the foundation for an inference of an accidental contact with the wire, by establishing his constant habit of gesticulation, which however fails as his admission that he intentionally grasped the wire, but could not explain why. If his act was inexplicable to him and intentionally done, how is it possible for the company to explain it, or reasonably to have anticipated what he himself could not explain and intentionally did?
If the plaintiff had accidentally come in contact with the wire while he was dancing, swimming, participating in any of the amusements and pleasures of the resort, or sauntering around as a sight-seer, there would be ground for holding the company responsible for not sufficiently protecting him against injury from such contact; but the facts do not present such a case. He had a right, of course, to sit upon the banister; he was where he had a right to be; the uninsulated wire was not in his path at all; it was doing him no harm; it became effective for harm by his own voluntary, intentionalact, one of unquestioned negligence.
As the Court said in the case of Green v. R. Co.,
I apprehend that the same principle would apply to thenegligent acts of others, unless it can be shown that they were induced by the primary act of the defendant, not simply that that act presented the opportunity or occasion for the negligence of such others. This principle, of course, would not be applicable to injuries sustained by immature children, under the attractive nuisance line of cases.
The only circumstances relied upon, except the lack of insulation on the wire, was the fact that a young lady, a few days before the plaintiff was hurt, had done the same thing that he did, and received a shock. Her conduct doubtless was of the same heedless character. It is not to be assumed that *Page 178 the careless act of one is to be considered sufficient notice to the company that some one else will be guilty of the same careless act. It was, of course, the duty of the defendant to construct and operate its line with a view to the probability of injury to persons reasonably to be expected to come in contact with its wires. One sporadic act of injury by carelessness is certainly no notice to the company of such a custom as would reasonably call for precautions against a recurrence by some other person similarly heedlessly inclined.
If the company cannot be charged with the duty of anticipating such an event, it certainly could not be charged with the duty of insulating its wires.
The case does not at all present the feature so often appearing in cases of attractive nuisances, such as Hayes v.Southern P. Co.,
See Sexton v. Noll,
Besides, there is no evidence tending to show any negligence on the part of the defendant in not generally insulating its wires. There is evidence tending to show that it is the safer practice not to do so. Of course, if the circumstances are such as to reasonably require such insulation at a particular place, the failure to do so might be considered negligence.
Another ground for the denial of recovery in this case is that assuming the negligence of the company it is clear that the intervening, unconnected act of the plaintiff produced his injury. The principle is well illustrated in the Foster case,supra.
In speaking of the law of proximate cause, the Court said: "The injury to plaintiff could not have been anticipated without foreseeing the act of the father, or of some other person acting to the same end, in taking the house wire into the street by means of an extension cord, or other device. Obviously, the foresight which the law imputes to a tort-feasor *Page 179 cannot extend to consequences brought about by the intervention of a responsible human being, where the act of the intervener breaks the chain of causation between the original wrong and for the injury complained of, and is in itself sufficient to constitute an efficient, responsible cause of the injury. Under the undisputed facts of this case the act of the father in carrying the house wire and lamp into Lybrand Street would seem clearly to meet the test of what constitutes such an efficient, intervening, proximate cause of an injury. It was not an act induced, produced or set in motion by the alleged negligent act of improperly placing the wires or by any other delict of the city. It was not an act, * * * which, in the discharge of the particular duty owed to the plaintiff, the city could have foreseen in the exercise of reasonable diligence. It was an act without which the plaintiff's injury could not have happened. * * * In that situation we think the act of the father was such an efficient, intervening, responsible cause of the plaintiff's injury as would as a matter of law make of that act the proximate cause of the injury and the alleged negligent placing of the wires in Lawson avenue merely the condition by which the injury was made possible and not a concurring proximate cause thereof."
In Dudley v. Ry. Co.,
In Cannon v. Lockhart Mills,
I concede that if the defendant was guilty of negligence in the location of an uninsulated wire, and that act induced or was the probable cause of the intervening negligent act of the plaintiff in grasping the wire, the causal connection between the initial act of negligence and the injury would not have been broken. I do not see how it is possible to come to such a conclusion from the facts of this case.
I concede also that if the act of the company, assumed to have been negligent, produced an impulsive, involuntary act on the part of the plaintiff in grasping the wire, there would be no ground for holding that the chain had not been broken; but here there was nothing unusual about the condition of the wire at the time the plaintiff grasped it, which could have produced such an impulse; in fact, it appears that he knew of its presence and condition which were not suddenly presented to him, and could not therefore have converted his intentional act into an impulse.
I have not considered to any extent the question of punitive damages for two reasons: (1) There is no evidence that under the circumstances the defendant owed the plaintiff the duty to protect its wires from his voluntary, intentional, uninduced act in grasping the wire; if there was no such duty, there could be no breach of it and consequently no right to damages, actual or punitive resulting from the injury sustained by the plaintiff. (2) That there is not a particle of evidence in the case warranting the infliction of punishment upon the defendant for damages resulting from a conscious disregard of its duty to the plaintiff. *Page 181
For these reasons I think that the motion for a directed verdict in favor of the defendants should have been granted.
Cannon v. Lockhart Mills , 101 S.C. 59 ( 1915 )
Green v. Railway Co. , 131 S.C. 124 ( 1925 )
Williams v. City of Sumter , 149 S.C. 375 ( 1929 )
Pendleton v. Columbia Ry., G. E. Co. , 133 S.C. 326 ( 1926 )
Hayes v. Power Company , 95 S.C. 230 ( 1913 )
Sexton v. Noll Construction Co. , 108 S.C. 516 ( 1918 )
Dudley v. Atlantic Coast Line Ry. Co. , 110 S.C. 73 ( 1918 )