Bogle v. Duke Power Co.

219 S.E.2d 308 (1975)

27 N.C. App. 318

Corina B. BOGLE, Administratrix of the Estate of Roy D. Bogle, Jr., Deceased v. DUKE POWER COMPANY, a corporation.

No. 7525SC505.

Court of Appeals of North Carolina.

November 5, 1975.

*310 Kenneth D. Thomas, Hickory, for plaintiff appellant.

Patton, Starnes, Thompson & Daniel, P. A., by Thomas M. Starnes, Morganton, for defendant appellee.

BRITT, Judge.

We hold that the trial court properly granted defendant's motion for summary judgment.

Under G.S. 1A-1, Rule 56, summary judgment is proper where there exists no genuine issue as to any material fact and a party is entitled to judgment as a matter of law. Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972), Rehearing denied, 281 N.C. 516 (1972); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). In an action for wrongful death predicated on negligence, summary judgment for defendant is correct where the evidence fails to establish negligence on the part of defendant, establishes contributory negligence on the part of the decedent, or determines that the alleged negligent conduct complained of was not the proximate cause of the injury. See, Comment, Summary Judgment: A Comparison of Its Application By North Carolina and Federal Courts in Negligence Actions, 9 Wake Forest L.Rev. 523 (1973).

Negligence is the failure to exercise that degree of care for the safety of others that a reasonable prudent person would exercise under the same circumstances. Godwin v. Nixon, 236 N.C. 632, 74 S.E.2d 24 (1953). To be actionable the conduct complained of must be the proximate cause of the injury. Meyer v. McCarley and Co., Inc., 288 N.C. 62, 215 S.E.2d 583 (1975); McNair v. Boyette, 282 N.C. 230, 192 S.E.2d 457 (1972). An essential element of causation is foreseeability, that which a person of ordinary prudence would reasonably have foreseen as the probable consequence of his acts. A person is not required to foresee all results but only those consequences which are reasonable. Luther v. Asheville Contracting Co., 268 N.C. 636, 151 S.E.2d 649 (1966).

Electric companies are required to exercise reasonable care in the construction and maintenance of their lines when positioned where they are likely to come in contact with the public. Ellis v. Power & Light Co., 193 N.C. 357, 137 S.E. 163 (1927). Here, defendant insulated its transmission line by height and isolation in accordance with existing regulations. See, Rule R8-26, North Carolina Utilities Commission, incorporating by reference the National Electrical Safety Code. It equipped its poles and lines with fuses and circuit breakers designed to alleviate the risk of an uncontrolled discharge of electricity. We hold that defendant exercised reasonable care in the operation of its transmission lines near the Glen Alpine Grammar School and was not in breach of any duty of care toward plaintiff's intestate.

Defendant's conduct in allowing the line to remain near the school where *311 plaintiff contends defendant knew or should have known it posed a hazard to maintenance personnel, was not the proximate cause of death to plaintiff's intestate. The law requires only the exercise of reasonable care to provide for those eventualities which a reasonable prudent person would have foreseen under the circumstances. McNair v. Boyette, supra; Deese v. Light Co., 234 N.C. 558, 67 S.E.2d 751 (1951). It would have been beyond the parameters of reasonable foreseeability to require defendant to construct and insulate its transmission line so as to withstand the impact of a heavy metal extension ladder. It is unreasonable to call on the defendant to foresee that plaintiff's intestate would ignore the warning of his supervisor and cause a metal ladder to fall against the line, setting in motion a series of events resulting in his death.

Furthermore, we think summary judgment was proper because of intestate's contributory negligence. The materials presented at the hearing established that intestate, in attempting by himself to remove the ladder from the building after being warned of the power line, and attempting to remove the ladder from the line, failed to use ordinary care for his own safety and that such want of due care was at least one of the proximate causes of his death. Jackson v. McBride, 270 N.C. 367, 154 S.E.2d 468 (1967); Gibbs v. Carolina Power & Light Co., 268 N.C. 186, 150 S.E.2d 207 (1966). "The law imposes upon a person sui juris the duty to use ordinary care to protect himself from injury, and the degree of such care should be commensurate with the danger to be avoided". Rosser v. Smith, 260 N.C. 647, 653, 133 S.E.2d 499, 503 (1963).

For the reasons stated, the judgment allowing defendant's motion for summary judgment and dismissing plaintiff's action is

Affirmed.

PARKER and CLARK, JJ., concur.

PARKER, Judge (concurring):

I agree that summary judgment for defendant was proper and vote to affirm. There was no genuine issue as to the material facts relevant to the issue of negligence on the part of defendant and on those facts there was simply no showing that defendant was in any way negligent. I would affirm for that reason without reaching the issue of contributory negligence. As to that issue, the only evidence to show the conduct of plaintiff's intestate immediately prior to his death was that contained in the affidavit of Mode. That affidavit was presented by the defendant as an attachment to its motion for summary judgment. Since the burden of proof on the issue of contributory negligence was on the defendant, I do not believe that summary judgment for defendant on that issue would be proper where, as here, the credibility of defendant's witness is involved. A defendant's evidence may not be considered as a basis for granting a directed verdict in his favor on the ground of plaintiff's contributory negligence. Connor v. Robbins, 268 N.C. 709, 151 S.E.2d 573 (1966); Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360 (1960). I see no reason why the same principle should not apply when passing upon a defendant's motion for summary judgment made upon the same ground.