Did the court err in signing judgment sustaining the demurrer of the defendant city of Kinston? This is the question on plaintiff's appeal.
Admitting the truth of the allegations of fact set forth in the complaint, as well as relevant inferences of fact necessarily deducible therefrom, but not of conclusions of law, as is done in testing the sufficiency of a complaint to state a cause of action, when challenged by demurrer, Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761; Muse v. Morrison, 234 N.C. 195, 66 S.E.2d 783, and numerous other cases, we are of opinion that the complaint fails to state a cause of action against the defendant city of Kinston, a municipal corporation, owning and operating an electric lighting system within its corporate limits, if it be conceded that it was acting in a proprietary capacity.
Also if it be conceded that the city of Kinston were negligent in the respects alleged, it appears upon the face of the complaint that the injury to and death of plaintiff's intestate was "independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person." Smith v. Sink, 211 N.C. 725, 192 S.E. 108, 109. See also Harton v. Forest City Tel. Co., 146 N.C. 429, 59 S.E. 1022, 14 L.R.A.,N.S., 956; Mintz v. Town of Murphy, 235 N.C. 304, 69 S.E.2d 849; Smith v. Grubb, N.C., 78 S.E.2d 598, and numerous other cases therein cited.
There would have been no injury to intestate of plaintiff but for the intervening
True, 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 employees. Fisher v. City of New Bern, 140 N.C. 506, 53 S.E. 342, 5 L.R.A.,N.S., 542; Harrington v. Commissioners of Town of Wadesboro, 153 N.C. 437, 69 S.E. 399; Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543; Mintz v. Town of Murphy, supra.
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."
Moreover, we find it stated in 18 Am.Jur. 491-2, subject Electricity, Sec. 97, "That the duty of providing insulation should be limited to those points or places where there is reason to apprehend that persons may come in contact with the wires, is only reasonable. Therefore, the law does not compel companies to insulate * * * their wires everywhere, but only at places where people may legitimately go for work, business or pleasure, that is, where they may be reasonably expected to go. The same rule applies with equal, if not greater, force in regard to placing warning signs." This principle is recognized by this Court in Ellis v. Carolina Power & Light Co., 193 N.C. 357, 137 S.E. 163. See also 29 C.J.S., Electricity, § 42, page 582.
And while it is alleged that the city of Kinston should have forseen that motor vehicles would collide at the intersection in question, and come into contact with the light poles of the city's lighting system,— this is a conclusion that does not follow the law. "One is not under a duty of anticipating negligence on the part of others, but in the absence of anything which gives or should give notice to the contrary a person is entitled to assume, and to act on the assumption, that others will exercise ordinary care for their own safety". 65 C.J.S., Negligence, § 15. See Shirley v. Ayers, 201 N.C. 51, 158 S.E. 840; Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326; Hobbs v. Queen City Coach Co., 225 N.C. 323, 34 S.E.2d 211.
Hence, on plaintiff's appeal the judgment below is affirmed.
On Defendant Washington's Appeal
Did the court err in signing the judgment overruling the demurrer of the defendant
This appellant contends that the allegations of the complaint properly interpreted are that the city of Kinston was negligent in the construction and maintenance of the city electric lighting system, and, hence, if he were negligent as alleged, the negligence of the city insulated his negligence. However, the principle of insulating negligence does not support this contention. It relates to acts and conduct subsequently occurring. See Harton v. Forest City Tel. Co., supra; Smith v. Sink, supra; Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808; Mintz v. Town of Murphy, supra; Smith v. Grubb, supra.
This appellant also contends that the allegations of the complaint, accepted as true, show that intestate of plaintiff was contributorily negligent as a matter of law.
True the law imposes upon a person sui juris the obligation to use ordinary care for his own protection, and the degree of care should be commensurate with the danger to be avoided. And since the danger from uninsulated or otherwise defective wires is proportionate to the amount of electricity so transmitted, contact with such wires should be avoided where their existence is known. Thus where a person seeing such a wire knows that it is, or may be highly dangerous, it is his duty to avoid coming in contact therewith. See 18 Am.Jur. 471, Electricity, 76. Also see Rice v. City of Lumberton, supra, and Mintz v. Town of Murphy, supra.
Nevertheless, the principle, sometimes designated the rescue doctrine, is applicable to the factual situation alleged in the complaint. See Norris v. Atlantic Coast Line R. Co., 152 N.C. 505, 67 S.E. 1017, 27 L.R.A.,N.S., 1069; 38 Am.Jur. 912, Negligence, Sec. 228; 65 C.J.S., Negligence, § 120, page 736. See also Annotations 5 A.L.R. 206 and 19 A.L.R. 4.
In the American Jurisprudence citation just made the author states: "The rule is well settled that one who sees a person in imminent and serious peril caused by the negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life or serious injury in attempting to effect a rescue, provided the attempt is not recklessly or rashly made." To like effect is the text from C.J.S. Moreover, in the Norris case, supra, our own Court, in opinion by Hoke, J., clearly stated and applied the principle. Hence in the light of this rule, a case for the jury is alleged in this respect.
Thus the allegations of negligence against this appealing defendant are sufficient to withstand the test of a demurrer. And, the judgment overruling his demurrer is