Floyd v. Nash

151 S.E.2d 1 (1966)

268 N.C. 547

Lucille G. FLOYD, Administratrix of the Estate of Jimmy Floyd v. Harold M. NASH and wife, Mary Evelyn NASH and Duke Power Company.

No. 543.

Supreme Court of North Carolina.

November 23, 1966.

*3 Griffin & Perry, Monroe, for plaintiff appellant.

Harold D. Coley, Jr., William I. Ward, Jr., Carl Horn, Jr., Charlotte, and Richardson & Dawkins, Monroe, for defendant Power Company.

Coble Funderburk, Monroe, for defendants Nash.

PER CURIAM.

There is no evidence in the record to show, or to support an inference, that the Power Company knew of the existence of the feed tank or had any notice that it would be constructed. It was built after the power line was constructed and in use. This distinguishes the present case from Essick v. Lexington, 233 N.C. 600, 65 S.E.2d 220, and brings it within the rule of Philyaw v. City of Kinston, 246 N.C. 534, 98 S.E.2d 791, insofar as negligence by the Power Company is concerned.

It is not negligence per se for a power company to run an uninsulated wire 19 feet above the ground along its right of way across farm land and to use it for the transmission of power at high voltage. See Davis v. Carolina Power and Light Co., 238 N.C. 106, 76 S.E.2d 378, a stronger case for the plaintiff than the present one.

*4 The evidence shows that the defendant Nash did not construct, determine the location of, own, control or use the feed tank. At the most, he permitted its construction by another upon his land and its use by the employer of the deceased for the storage of its feed. The evidence is that when the deceased first began making deliveries to this tank, six months prior to his death, he and Nash discussed the presence of the power line, the nature of that discussion not being shown in the evidence. Nash did not give any instruction to the deceased as to where the truck should be stopped or how the blower pipe should be operated. Under these circumstances, the mere fact that Nash had superior knowledge of electricity will not support a finding of negligence by him, in the absence of anything to indicate to him that the deceased did not have an awareness of the danger inherent in an electric power line, such as is generally possessed by adults of normal intelligence.

Even if negligence by either of these defendants could reasonably be inferred upon the evidence in this record, the evidence leads inescapably to the conclusion that the deceased, and certainly his employer, who inspected the premises before sending the deceased thereon, was guilty of contributory negligence. Knowing of the presence of the power line, and having filled this tank on many previous occasions, the deceased, for some unknown reason, permitted the metal blower pipe to rise far higher than necessary and to come in contact with the power line. This tragic lapse of attention to a known danger in the immediate vicinity must be deemed negligence by the deceased. See Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536.

The deceased was not a child, and there is nothing to indicate that he did not have normal experience and intelligence. Under these circumstances, the fact that he was not specifically educated or trained in the use and dangers of electricity does not absolve him from the duty to use the care which a man of ordinary prudence would use in maneuvering a metal pipe in the vicinity of an electric power line. In spite of the deceased's lack of training in the handling of electricity, we think that the evidence leads inescapably to the conclusion that he failed to use the care of a reasonable man, knowing what he knew concerning the presence of the power line, and that his failure to do so was a contributing cause of his death. The contrary view expressed in Essick v. Lexington, supra, is not consistent with the later opinion in Mintz v. Town of Murphy, 235 N.C. 304, 69 S.E.2d 849, and is hereby disapproved.

Affirmed.