Weeks v. Carolina Power & Light Co.

April 11, 1930. The opinion of the Court was delivered by This action on tort was brought on behalf of Robert S. Weeks, seventeen years of age, against Carolina Power Light Company, a corporation, and M.A. Doughty, local manager at Sumter of the power company. The trial in the Court of Common Pleas for Sumter County, before his Honor, Circuit Judge Ramage, and a jury, resulted in a verdict and judgment in favor of the plaintiff against Carolina Power Light Company alone, for the sum of $3,500 actual damages, and $5,000 punitive damages.

The defendant the power company alone, has appealed from the verdict and judgment against it on seven exceptions, but, as only four questions are raised, some of the exceptions may be grouped in out disposition of them.

We take up first the third exception, which imputes error to the trial Judge because he charged the jury to the effect that they might render a verdict against the power company alone, and in favor of the defendant Doughty, or against Doughty alone, and in favor or the power company. The appellant insists there was no allegation in the complaint of separate and independent acts of negligence on the part of the two defendants, but that, on the contrary, the complaint alleged that the negligence charged against the two defendants was the negligence of Doughty, the agent of the power company, and that the power company could not be held liable if Doughty was not first liable.

It is our opinion that the appellant is mistaken as to the allegations of the complaint. In Paragraph V of that pleading, negligence was alleged against both the defendants as to the manner of stringing certain wires carrying electric current. The plaintiff charged that these wires were strung "under the actual supervision and direction of the defendant M.A. Doughty, and with the help of a number of other servantsof the defendant company; * * * and the defendantsthereafter maintained said wires in this dangerous position." In Paragraph VI, it was alleged: "Although the defendants knew that said wires would be charged with electricity for the creation of light and power, and would be highly dangerous to any one coming in contact with them, etc., * * * still notwithstanding all this, they used forsaid construction uninsulated wires and used absolutely noprotection against injury to persons using said verandas,and gave no warning of said danager." Referring to previous injuries, alleged to have occurred because of the negligent placing and maintaining of the wires, which caused plaintiff's alleged injuries, it was stated in Paragraph VII of the complaint: "That these facts had been reported to the defendants,but they had done nothing to prevent their recurrenceand had provided no warning or protection against injuryto the public." In Paragraph XI, the plaintiff charged: "That all of said acts and omissions on the part of the defendantsand 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."

There was some evidence in the case, adduced by the defendants from the testimony of the defendant Doughty, tending to show that the negligent construction and maintenance of the electric wires, with which the plaintiff came in contract, and as a result of which contact he suffered his injuries, were due to the acts of Mr. Bullard, a constructionengineer of the power company, who, in construction work,was higher than Doughty; and that Doughty received instructionsfrom the company that Bullard was coming tomake the changes in the wires, and that Bullard could nothave done this without the authority of "people higher up." There was evidence also going to establish the fact that if the wires had remained where Doughty had caused them to be placed, plaintiff's injuries would not have been sustained;and these injuries were entirely due to wires being placedwhere Bullard, the construction engineer, had directed themto be placed.

Undoubtedly, as the appellant contends, the law is that where a master and his servant are sued together for the same act of negligence or willful tort, and the master's liability rests solely on the servant's conduct, a verdict against the master alone is illogical and cannot stand.Johnson v. A.C.L. Railroad Co., 142 S.C. 125,140 S.E., 443, and cases there cited.

Under the stated principle of the Johnson case, if the proof in this case had shown that the plaintiff's injuries were due solely to an act of negligence or willful tort of Doughty, the agent of the power company, the jury could not have rendered a verdict against the power company alone.

But this case is not controlled alone by the rule of law to which we have referred, for some reasons already pointed out. And another principle, well recognized by this Court, is involved. If a delict by charged againstboth the master and the servant, or against the master andthe servant and other agents of the master, and it is shownby the evidence that the delict was committed by the masterthrough some other servant than the servant sued with themaster, a verdict against the master alone may be rendered.Rhodes v. Southern Railway Co. et al., 139 S.C. 139,137 S.E., 434, and cases there cited.

After the jury had been considering the case for some time, they came into Court and asked, in case they found a verdict against the defendants, could the defendants be separated. The foreman inquired: "In other words, can a verdict be found against one exclusive of the other?" The trial Judge, in reply to that inquiry, instructed the jury as follows: "All I can tell you, gentlemen, is that you go and find such verdict against one or more of the defendants, or none of them, as you see fit from the testimony. In other words, it is a matter for you entirely."

By its exceptions 1 and 2, the appellant contends that the charge was erroneous, as that was a matter of law to be decided by the Court, and not one for the determination of the jury, except under instructions from the Court as to what the law was. And the appellant raises in its second exception, practically the same question referred to in its third exception, already disposed of.

What we have said as to the third exception covers almost sufficiently the matters raised in these two exceptions.

If there had been no allegation in the complaint, or no evidence in the case, justifying a verdict against one of the defendants alone, it would have been a matter of law, as argued by the appellant, for the Court to declare that the jury could not render a verdict against the power company, unless a verdict against its agent, Doughty, was also returned. But when the pleadings and the evidence both warranted a finding against both defendants, or against only one of the defendants, then the Judge was obsolutely correct in submitting the verdict to be returned to the wisdom of the jury, under the law as he had declared it and the evidence adduced in the case. The authorities already cited sustain this holding.

The fourth exception charges error because the trial Judge refused to instruct the jury that no punitive damages could be recovered, as there was no evidence of willfulness on the part of the defendants. Exception 5 complains of error in refusing to direct a verdict as to punitive damages in favor of both defendants. The sixth exception is based on the refusal of the trial Judge to grant a new trial, on the ground that there was no proof of willfulness or wantonness on the appellant. These exceptions may be considered, as they were argued, at one time. They require a brief review of the evidence in the case, which supported the allegations of the complaint. The evidence, of course, so far as we are concerned, must be looked upon in the light most favorable to the plaintiff.

"Pocalla," operated by M.H. Beck, is a famous and attractive resort, near the City of Sumter, to which are attracted thousands of persons, old and young, men, women and children. There are camping grounds, picnic grounds, a large swimming pool, and a dance hall. The public generally is invited and attracted. The principal building at the resort consists of a store building downstairs, with a dance hall upstairs. On either side of the dance hall is a veranda, extending the length of the dance hall, and on a line with the front of the building, and these verandas are commonly used by the public who come for amusement and sight-seeing. The appellant power company furnished electric light and power to Pocalla, and Mr. Doughty, a defendant, is its local manager at Sumter. Originally, the necessary wires were placed below the floor of the veranda, where no one could reach them without getting over the railing of the veranda and reaching around the end of the floor. Mr. Doughty thought that a perfectly safe place for the location of the wires, and so far as the evidence disclosed, his judgment was correct. The wires at that time were not insulated, and, perhaps, it was not necessary for them so to be. About three months after the placing by Mr. Doughty, Bullard, a construction engineer of the appellant, inspected the wires; determined that they had not been put up properly; got authority to move them. He had them moved to the place where they were at the time of plaintiff's injuries. Bullard caused them to be placed about 19 1/2 inches out from the end of the veranda and at a height of around 5 feet 3 1/2 inches from the floor of the veranda. The wires were not insulated, and the appellant took no means of properly guarding them. It was suggested to Mr. Beck, the proprietor of Pocalla, that he put up a guard at the end of the veranda. Mr. Beck did put up some small wire netting and fastened the same with some small poultry wire staples. This netting had been broken down several times before plaintiff's accident, and was crushed down level with the railing at the end of the veranda at the time of the accident. The railing was 37 1/2 inches from the floor. Mr. Doughty, it seems, approved the new location of the wires on the part of Bullard. Before appellant got charge of the power company at Sumter, and in that territory, some of the towns thereabout, including Sumter, used, generally, insulated wires. After the appellant took charge of the Sumter plant, insulated wires were not used so generally. No steps were taken by the appellant to give any notice or warning to the public that the custom of using insulated wires had been very generally, charged. At some time prior to plaintiff's accident, according to the plaintiff about six days, and according to the appellant about two days, previously, a young lady had been injured to some extent by coming in contact with the same wires at Pocalla which caused plaintiff's injuries. Mr. Beck had reported this occurrence to the appellant very soon after it happened, at least two days prior to the accident to plaintiff, and suggested that it would be easier to remedy the situation than to have a law suit. No change in the condition of the wires was made, and nothing was done to prevent another accident. On the day of the accident to plaintiff, he, with a number of people, went to Pocalla on a camping trip, to swim, dance, and have a good time generally. He was not informed of the danger of the electric wires of the appellant. With one of his young friends, they went to the veranda and sat on the railing. In some unaccountable way, not explained, and perhaps impossible to explain, as accidents of this kind often are, the plaintiff's right hand came in contact with the highly charged wires, and his fingers by the effect of the current tightly closed about one of the wires. As a result of the injury received, plaintiff was shocked, he had to be treated by three physicians, the index finger of his right hand had to be amputated, and he suffered other injuries to his hand. Plaintiff was a student at the South Carolina Military Academy, engaged actively in the playing of football and other sports, and he had the reputation of being a good shortstop. His injuries have interfered with his activities in many ways and have already prevented him from continuing the playing of baseball and engaging in some other sports. He is permanently injured.

The appellant claimed, and tried to show, that the plaintiff negligently took hold of the wires, and this negligence brought about the injuries he sustained. Appellant had some proof to support this claim, but, as indicated already, these questions of fact were entirely for the jury.

Electricity is a very dangerous thing. Some one has appropriately referred to it as "chained lightning." That lightning will break the little chains which are supposed to hold it. Power companies and their employees, even more than all other people, ought to know the great danger of electricity. They ought to take care to see that their wires, which convey electric current, are properly guarded, so as to prevent injuries to persons and property. This duty is incumbent upon them under the law of this state.

"One establishing a dangerous agency at a place where others are liable to be and have the right to be, must use due care in guarding it." (Syllabus) Hayes v. Southern PowerCo., 95 S.C. 230, 78 S.E., 956.

"The failure of an electric company to keep its wires insulated, so that a wire strung above them and falling across them becomes charged and causes the death of a pedestrian coming in contact with it, is a breach of duty to the public, without respect to its actual knowledge of the fallen wire or its diligence in discovering it." (Syllabus) Parsons v.Charleston Consolidated Ry., Gas Electric Co., 69 S.C. 305,48 S.E., 284, 104 Am. St. Rep., 800.

"Those operating electric wires in streets are required to exercise a very high degree of care in their construction, repair, inspection and maintenance to prevent injury to others." (Syllabus) Lundy v. Southern Bell Telephone TelegraphCo., 90 S.C. 25, 72 S.E., 558.

"An electric company is bound to use due diligence to receive information as to the condition of its wires, and failure to use due diligence in this respect would constitute negligence." (Syllabus) Mitchell v. Light Power Co., 45 S.C. 146,22 S.E., 767, 31 L.R.A., 577.

In the article on "Electricity," Corpus Juris says this: "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." 20 C.J., 355.

The case at bar is easily distinguishable from that ofWilliams v. City of Sumter, 149 S.C. 375, 147 S.E., 321. The facts of the Williams case, briefly stated, were these; The City of Sumter had inserted proper insulator on a guy wire at a point more than nine feet from the ground. Plaintiff, a little child, climbed up the guy wire, passed the insulator, and received an electrical shock, which seriously injured him. We held the city not liable, on the ground that it could not reasonably anticipate that even a child, playing in the street, would attempt to climb the wire to a point above the insulator, so as to put himself in a position of the resultant peril.

The facts of the Williams case are so much different from those of this case that the cited case has no bearing here. In this case, the uninsulated and highly dangerous wire was within 19 1/2 inches of where people congregated for play, sport, and amusement. Even a small child's arm can easily reach for a distance of 19 1/2 inches. One moving his arms about in play or exercise, or from force of habit, could have easily and unconsciously come in contact with the unguarded wire. It was not necessary for one to climb 9 feet, or even any distance, to put himself into a position of peril. The appellant should have anticipated the grave probability of danger in having an unguarded wire so close within the reach of so many people.

In the Court below, the appellant made no motion for nonsuit or for a directed verdict on the ground of lack of evidence to show negligence on the part of the defendants, or either of them, or on the ground that the evidence conclusively showed contributory negligence on the part of the respondent. Not one of the exceptions touched in the least way any of these matters. In fact, no exception as to error on the part of the Circuit Judge in submitting the case to the jury as to actual damages could be considered by us, since no such question was raised before him. It is needless to refer to authorities to sustain this position. Numerous cases cited in the Southeastern Digest, under the title "Appeal and Error," unnecessary to be referred to here, support it. The forceful argument in the dissenting opinion, seeking to show that there was no negligence on the part of the appellant, is quite interesting. But, however strong it sounds, it can have no effect, since the appellant has itself conceded that therewas enough evidence to require the trial Judge to submit thequestion of negligence to the jury.

The evidence was entirely sufficient, in our opinion, to require the presiding Judge to submit the case to the jury as to punitive damages. When the appellant had notice before, if for only two days, that a young lady had been injured by coming in contract with the same wires where the plaintiff received his injuries, it was appellant's duty to proceed, just as early as it possibly could, to correct the condition there existing. Appellant knew that many people, including little children, would be at Pocalla because of its popularity and attractiveness. It knew that the young boys and girls who went there to dance, swim, engage in sports, and to play were not on serious business, but were out for a good time, and that they would run, romp, jump, and climb anywhere. The condition of the wires was an emergency which should have been cared for, even if the appellant had to work on Sunday, and our laws allow work of that kind on the Sabbath day.

This Court has held that conduct constituting a reckless disregard of the rights of others may justify an award of punitive damages. Bailey v. Smith, 132 S.C. 212,128 S.E., 423.

"A conscious failure to observe due care has been repeatedly, held by this Court to warrant a jury in giving not only actual damages, but punitive damages as well. When one, without thinking, just carelessly does an act which results in an injury to another, then ordinary negligence is established. On the other hand, when a person with the thought that his negligent act may produce an injury to another proceeds to do the act, such circumstances evidence a conscious failure to observe due care." Wannamaker v. Traywick, 136 S.C. 21,134 S.E., 234, 235.

When one consciously fails to do an act which he ought to do and his omission results in injury to his fellow, that conscious act of omission is just as much blamable as the affirmative doing of some act resulting in injury to another, when the doing is consciously proceeded with.

The seventh exception complains that the verdict for punitive damages was excessive. Under the authority of Duncan v. Record Publishing Company, 145 S.C. 196,143 S.E., 31; Veronee v. Charleston ConsolidatedRailway Co., 152 S.C. 178, 149 S.E., 753, and many other cases too numerous to cite, this exception must be overruled. We have said repeatedly that we have little, if anything, to do with the amounts of verdicts. The proper amounts to be rendered, as either actual or punitive damages, are left, under our law, almost entirely to the trial jury and the trial Judge. We have no legal right to disturb the verdict in this case. If we had any such right, we would not be disposed to do so, for, under all the circumstances, we could not honestly say that the amounts awarded by the jury were in the least excessive.

The judgment of this Court is that all the exceptions be overruled, and the judgment below be affirmed.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES STABLER and CARTER concur.