The assignment of error, determinative of this appeal, is directed against the ruling of the trial court in allowing motion of defendant, renewed at the close of all the evidence, for judgment as of nonsuit under provisions of G.S. § 1-183.
In considering such motion, "the defendant's evidence, unless favorable to the plaintiff, is not to be taken into consideration, except when not in conflict with the plaintiff's evidence, it may be used to explain or make clear that which has been offered by the plaintiff", Stacy, C. J., in Harrison v. North Carolina R. Co., 194 N.C. 656, 140 S.E. 598, 600, citing State v. Fulcher, 184 N.C. 663, 113 S.E. 769. This rule is applied also in these cases: Hare v. Weil, 213 N.C. 484, 196 S.E. 869; Crawford v. Crawford, 214 N.C. 614, 200 S.E. 421; Tarrant v. Pepsi-Cola Bottling Co., 221 N.C. 390, 20 S.E.2d 565; Jeffries v. Powell, 221 N.C. 415, 20 S.E.2d 561; Gregory v. Travelers Ins. Co., 223 N.C. 124, 25 S.E.2d 398, 147 A.L.R. 283; Pappas v. Crist, 223 N.C. 265, 25 S.E.2d 850; State v. Oldham, 224 N.C. 415, 30 S.E.2d 318; Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Buckner v. Wheeldon, 225 N.C. 62, 33 S.E.2d 480; Humphries v. Queen City Coach Co., 228 N.C. 399, 45 S.E.2d 546; Perry v. Hurdle, 229 N.C. 216, 49 S.E.2d 400; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Chesser v. McCall, 230 N.C. 119, 52 S.E.2d 231; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609; Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431; Register v. Gibbs, 233 N.C. 456, 64 S.E.2d 280.
Therefore, taking the evidence offered by the plaintiff, and so much of defendant's evidence as is favorable to the plaintiff, or tends to explain and make clear that which has been offered by the plaintiff, in the light most favorable to plaintiff, this Court is of opinion, and holds that there is sufficient evidence to take the case to the jury on the issue of negligence of defendant.
A municipal corporation, engaged in the business of supplying electricity for private advantage and emolument is, as to this, regarded as a private corporation,— and in such capacity, is liable to persons injured by the actionable negligence of its servants, agents and officers. Fisher v. City of New Bern, 140 N.C. 506, 53 S.E. 342, 5 L.R.A.,N.S., 542; Harrington v. Com'rs of Town of Wadesboro, 153 N.C. 437, 69 S.E. 399.
The principle is recognized and applied in numerous other cases before this Court. See Town of Grimesland v. City of Washington, 234 N.C. 117, 66 S.E.2d 794.
And this Court declared in Helms v. Citizens' Light & Power Co., 192 N.C. 784, 136 S.E. 9, 10, that: "Electric companies are required to use reasonable care in the construction and maintenance of their lines and apparatus. The degree of care which will satisfy this requirement varies, of course, with the circumstances, but it must always be commensurate with the dangers involved; and, where the wires maintained by a company are designed to carry a strong and powerful current of electricity, the law imposes upon the company the duty of exercising the utmost care and prudence consistent with the practical operation of its business, to avoid injury to those likely to come in contact with its wires."
And in Small v. Southern Public Utilities Co., 200 N.C. 719, 158 S.E. 385, 386, it is said that "Due to the deadly and latently dangerous character of electricity, the degree of care required of persons, corporate or individual, furnishing electric light and power to others for private gain, has been variously stated." Then after reciting such expressions, the Court said: "In approving these formulae as to the degree of care required in such cases, it is not to be supposed that there is a varying standard of duty by which responsibility for negligence is to be determined. * * * The standard is always the rule of the prudent man, or the care which a prudent man ought to use under like circumstances. What such reasonable care is, of course, varies in different cases and in the presence of different conditions."
And these principles apply in cases of broken high tension wires. Diligence
Now, as to the issue of contributory negligence pleaded in answer of defendant: The law imposes upon a person sui juris the obligation to use ordinary care for his own protection, and the degree of such care should be commensurate with the danger to be avoided.
In the light of this principle, and under the circumstances which the evidence being considered tends to show, contributory negligence on the part of intestate of plaintiff is not established as a matter of law. Rather, the evidence presents a case for the jury under proper instruction by the trial judge.
For reasons stated, the judgment of nonsuit is