FLEMING et al.
v.
CAROLINA POWER & LIGHT CO.
No. 166.
Supreme Court of North Carolina.
October 11, 1950.*367 Gholson & Gholson, Henderson, and Joyner & Howison, Raleigh, for plaintiff appellant C. J. Fleming.
Murray Allen, Raleigh, for plaintiff appellants Insurance Companies.
A. A. Bunn, Kittrell & Kittrell, Perry & Kittrell, all of Henderson, Eric Norfleet, Jackson, Charles F. Rouse and A. Y. Arledge, Raleigh, for defendant Carolina Power & Light Company, Appellee.
DEVIN, Justice.
The verdict on the first issue in the trial below defeated the plaintiffs' action, and the finding on the fourth issue is presently immaterial.
The assignment of error chiefly relied on by the plaintiffs as ground for a new trial was the following instruction given by the court on the first issue: "In respect to that (first) issue the court instructs you that if the plaintiff has satisfied you by the greater weight of the evidence that the employees of the defendant Power Company, or any of them, whose duties required them to act in emergencies, had notice that the secondary wires leading from the transformers on Montgomery Street west, and serving the plaintiff's warehouse, were arcing and flashing light and giving other indications *368 that they were overcharged with electricity, and has further satisfied you by the greater weight of the evidence that such condition was a dangerous one, and was such as to call for quick action on the part of said employees, or any of them, and was of such character as to demand that the said employees, or any of them, in the exercise of the degree of care which the circumstances required should cut off, or caused to be cut off, the current flowing through said wires, and that said employees, or any of them, failed to cut off or caused to be cut off the said current, and that their failure so to do was the proximate cause of the fire that destroyed plaintiff's warehouse, it would be your duty to answer the first issue yes. If the plaintiff has failed to so satisfy you of those facts, by the greater weight of the evidence, then it would be your duty to answer that issue no."
Plaintiffs contend this instruction should be held for error for that it eliminated from the jury's consideration one of the grounds upon which they sought to recover, to-wit, the negligence of the defendant in permitting electric current to pass through its service wires in such volume as to set fire to plaintiff Fleming's warehouse.
It is argued that when the evidence offered is considered in the light most favorable to the plaintiffs, it should be found sufficient to raise the reasonable inference that the warehouse was set on fire by the electric current furnished by the defendant, and that this dangerous element under the control of the defendant was negligently permitted to flow into the building in such volume as to cause the fire complained of. The plaintiffs present the view that the evidence here was such as to invoke the application of the doctrine of res ipsa loquitur, Turner v. Southern Power Co., 154 N.C. 131, 69 S.E. 767, 32 L.R.A.,N.S., 848, and that this principle in connection with other facts in evidence, was sufficient to have required the submission of this phase of the case to the jury as another ground upon which the first issue might be answered in plaintiffs' favor; and that when the court in effect instructed the jury, if they failed to find the defendant was negligent in respect to cutting off the electric current, after notice of the dangerous conditions then existing, to answer the first issue no, plaintiffs were deprived of the benefit of a substantial ground for a finding by the jury of actionable negligence. Furthermore, it is contended that in paragraph 20 of the complaint negligence of the defendant in this respect had been alleged.
We cannot follow the plaintiffs on this argument. The complaint does not specifically or sufficiently set forth allegations of negligence in the respect now claimed. Paragraph 20 is in these words: "That the defendant negligently permitted electric current in such volume as to set fire to plaintiff's warehouse to pass through its wires." It does not specify wherein the negligence consisted. Necessarily the defendant Carolina Power & Light Company permits the flow of electric current through its wires in volume sufficient to cause fire under some conditions, and in the prosecution of the business for which it was created it may lawfully do so without incurring liability, unless it be in some respect negligent in so doing, being under the duty of exercising the degree of care commensurate with the dangers involved. Calhoun v. Nantahala Power & Light Co., 216 N.C. 256, 4 S.E.2d 858. To characterize an act or course of conduct as negligent without more is insufficient. As stated in McIntosh on Prac. & Pro. sec. 388, "In negligence cases, a general allegation of negligence is insufficient and the facts constituting negligence must be given and that it was the cause of plaintiff's injury." Conley v. Richmond & D. R. Co., 109 N.C. 692, 14 S.E. 303; Gillis v. Transit Corp., 193 N.C. 346, 348, 137 S.E. 153; Whitehead v. Carolina Telephone & Telegraph Co., 190 N.C. 197, 129 S.E. 602; McIntosh, sec. 359.
It is necessary "that the negligent acts or omissions be specifically stated in order that the court may see whether there has been a breach of duty." City of Charlotte v. Cole, 223 N.C. 106, 25 S.E.2d 407, 409; Thomason v. Seaboard Air Line R. Co., 142 N.C. 318, 324, 55 S.E. 205.
An examination of the plaintiffs' complaint and the record of the testimony offered leads us to the conclusion that the *369 gravamen of the allegations of negligence in the complaint and of the evidence offered was the defendant's failure, after notice of dangerous conditions then existing, to stop by means available the flow of electricity to plaintiff's warehouse. The case seems to have been fought out before the jury in the trial below on this ground, the plaintiffs contending the condition of sleet, broken and dangling wires, and the heated appearance of the wires leading into the warehouse imposed upon the defendant the duty after notice, of cutting off the current, and that the defendant's failure so to do was the proximate cause of plaintiffs' loss. The defendant countered with evidence contra, contending the fire was not of electric origin, was not caused by defendant's negligence, but was caused by plaintiffs' fault, or by the unforeseen breaking of a limb from a tree.
This was the ground on which the battle was won and lost in the court below. The instruction given by the court on this issue, now assigned as error, presented the case concisely and correctly to the jury. The rule, as stated by Chief Justice Stacy in Gorham v. Pacific Mut. Life Ins. Co., 214 N.C. 526, 200 S.E. 5, 8, is that "an appeal ex necessitate follows the theory of the trial." Or, as expressed by Justice Brogden in Potts v. Life Ins. Co., 206 N.C. 257, 174 S.E. 123, 124, "The theory upon which a cause is tried must prevail in considering the appeal, and in interpreting a record and in determining the validity of exceptions." Webb v. Rosemond, 172 N.C. 848, 90 S.E. 306; Walker v. Burt, 182 N.C. 325, 109 S.E. 43; Shipp v. United Stage Lines, 192 N.C. 475, 135 S.E. 339; Holland v. Dulin, 206 N.C. 211, 173 S.E. 310; Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836; Keith v. Gregg, 210 N.C. 802, 188 S.E. 849; Jernigan v. Jernigan, 226 N.C. 204, 37 S.E.2d 493.
Plaintiffs in their assignments of error also brought forward certain exceptions noted to the ruling of the court in the admission or rejection of testimony. They excepted to the striking out of the testimony of a witness that when defendant's employee Lewis arrived on the scene before the fire and observed the condition of the transformer he was heard to "grunt", but it does not appear what meaning or significance, if any, was to be attributed to this guttural noise, or its materiality to the issue.
Plaintiffs excepted to the admission of testimony from a non-expert witness, who was defendant's District Manager, to the effect that electricity does not flow where not wanted, and that there must be an appliance or short circuit to complete the path from transformer back to transformer before it would flow. However, this witness had already testified at length without objection as to the behaviour of electric current through transformers, and there was other evidence to same effect from an expert witness. We do not perceive that plaintiffs' cause was hurt by the testimony to which this exception was noted.
Plaintiffs also noted numerous exceptions to the testimony of N. E. Cannady who was admitted to be an expert in electrical engineering. But an examination of this testimony in the light of plaintiffs' objections leaves us with the impression that the examination of this witness and the opinion evidence elicited in response to hypothetical questions were well within the bounds of competent testimony from an expert witness under the circumstances of this case.
There was no error in admitting the insurance policies which had been issued by the plaintiff insurance companies on this warehouse. The plaintiff Fleming had testified without objection as to these policies and the amounts covered in each. It was on account of payment of these policies that these plaintiffs derived their interest and had been made parties to the action. Fleming v. Carolina Power & Light Co., 230 N.C. 65, 51 S.E.2d 898. The exception to the exclusion of a question to the witness Wood does not seem to involve a matter of serious import.
We have examined plaintiffs' other exceptions to the charge but do not find prejudicial error therein. The trial judge's charge to the jury seems to have been full and fair and presented the determinative *370 issues to the jury in substantial accord with the requirements of the statute, G.S. § 1-180, and the decisions of this Court.
Unfortunately for the plaintiffs the jury found the facts on the first issue against them, and we discover no sufficient ground in law upon which to disturb the result.
No error.