#### NANCY COX KISER, Administratrix, v. CAROLINA POWER AND LIGHT COMPANY.

(Filed 3 January, 1940.)

1. Electricity §§ 7, 11 — Evidence held properly submitted to the jury in this action against power company to recover for death caused by electrocution.

The evidence tended to show that defendant power company disconnected the electric service to a house following a storm, informed the owner that the house wiring system needed repairs, suggested that he employ an electrician, and promised to reconnect the service on receipt of notice that the repairs had been made, that the owner called an electrical contractor, that the workman sent out by him, instead of properly pulling new wires through the conduit, circumvented the conduit with temporary wires and, further, improperly crossed the wires, resulting in energizing the metal armor of the BX cable attached to the bottom of the floor joist, and reconnected the service contrary to defendant’s rules, that intestate, a four-year-old child, while under the house, came into contact with the energized metal armor of the BX cable and was electrocuted, and that defendant, although advised of the owner’s desire for immediate restoration of service, failed to make inspection during the seven days elapsing from the discontinuance of the service to the date of notification of intestate’s death. *Held:*The evidence is sufficient to support the submission of the issue of negligence and proximate cause in defendant’s failure to make due inspection, and fails to disclose intervening negligence on the part of the workman sent by the electrical contractor such as to insulate.the negligence of defendant as a matter of law, and defendant’s motion to nonsuit was properly denied.

2. Electricity § 6—

In the distribution of electric current a power company *is held*to that high degree of care and foresight which is commensurate with the inherent danger of the instrumentality.

Barnhill, J., dissenting.

Winborne, J., concurs in dissent.

Appeal by defendant from *Bobbitt, J.,*at March Term, 1939, of RANDOLPH.

Civil action to recover damages for death of plaintiff’s intestate alleged to have been caused by the neglect, default or wrongful act of the defendant.

The defendant furnishes electricity to the home of A. J. Cox in Asheboro. On the afternoon of 10 July, 1937, an electrical storm caused *699one of tbe wires in tbe conduit to burn in two and resulted in a stoppage of tbe flow of current into tbe customer’s bouse. Tbe conduit is attached to tbe outer wall of tbe bouse. Complaint was made to tbe defendant’s Asheboro office, and a Mr. Wham responded to tbe call. Upon investigation be found tbe facts as above stated, disconnected tbe wires by pulling tbe end of tbe melted wire from tbe cable and tying it back so that no current could be transmitted to tbe bouse wiring system, informed Mr. Cox that be would have to employ an electrician to make tbe necessary repairs, and on being asked by tbe customer if be could have lights that night, stated that after tbe repairs bad been made, upon notice to tbe company “they would be glad to come down and reconnect tbe service,” No such notice was given and tbe defendant did not reconnect tbe service, which was permitted to be done only by one of its agents.

Tbe customer engaged an electrical contractor of Asheboro to make tbe repairs. Baxter Elliott was sent to do tbe work. Instead of pulling new wires through tbe conduit, as would have been proper, Elliott circumvented tbe conduit with two temporary wires and connected these to tbe wires of tbe defendant, which be should not have done. Not only this. He crossed tbe wires which resulted in energizing tbe metal armor of tbe BX cable attached to tbe bottom of tbe floor joist.

On tbe afternoon of 17 July, 1937, Leon Kiser, a child four years of age and grandchild of A. J. Cox, while under tbe bouse, came in contact with this energized metal armor of tbe BX cable and was electrocuted.

Tbe case was submitted to tbe jury on plaintiff’s allegation of negligence that tbe defendant knew or in tbe exercise of reasonable care should have known tbe current bad been cut back into tbe bouse wiring-system and failed to make due inspection thereof before tbe injury.

From a verdict for tbe plaintiff, assessing damages at $1,500, tbe defendant appeals, assigning errors.

*Moser & Miller and S. W. Miller for plaintiff, appellee.*

*J. A. Spence and A. T. Arledge for defendant, appellant.*

Stacy, C. J.

Defendant disconnected A. J. Cox’ electrical service following a storm on tbe afternoon of 10 July, 1937, informed him that bis bouse wiring system needed repair, suggested that be employ an electrician to place it in proper condition, and promised to reconnect tbe service upon receipt of notice that tbe repairs bad been made. Tbe customer asked if be could have lights that night. No further communication was bad between tbe power company and its customer until tbe afternoon of 17 July, 1937, when tbe company was informed that its customer’s grandchild bad been electrocuted while under tbe bouse.

*700Tbe jury bas found, upon full consideration of tbe evidence, that tbe proximate cause of plaintiff’s intestate’s death was tbe failure of the-defendant' to make due inspection of its service under tbe circumstances disclosed by tbe record. We cannot say there was error in submitting-tbe case to tbe jury on this theory. *Small v. Utilities Co.,*200 N. C., 719, 158 S. E., 385.

A high degree of foresight is required of tbe defendant because of the-character and behavior of electricity which it generates and sells. *Shaw v. Public-Service Corp.,*168 N. C., 611, 84 S. E., 1010. Tbe defendant’s knowledge of its service is supposedly superior to that of its customer’s. It is not unreasonable, therefore, in view of tbe dangerous character of tbe product, to require the “utmost diligence and foresight, in the construction, maintenance, and inspection of its plant, wires, and appliances, consistent with the practical operation of the business.” *Turner v. Power Co.,*167 N. C., 630, 83 S. E., 744. The care required must be commensurate with the dangers incident to the business. And so the law is written. *Haynes v. Gas Co.,*114 N. C., 203, 19 S. E., 344.

The negligence of Baxter Elliott was not such as to insulate the negligence of the defendant as a matter of law. *Quinn v. R. R.,*213 N. C., 48, 195 S. E., 85. The defendant’s liability is predicated upon its failure to inspect its wires within a reasonable time. It knew that Cox was a regular user of its service. This had been interrupted, the defendant called, and with full knowledge of the facts, including the customer’s desire to have the service restored immediately, the matter was allowed to go for seven days without further inquiry or attention on the part of the defendant. Under the circumstances, we think the question of due care was for the jury. What is due care is to be determined by the exigencies of the occasion. *Diamond v. Service Stores,*211 N. C., 632, 191 S. E., 358.

It is true, the customer was to notify the defendant when the repairs to the house wiring system had been made, so that the service could be reconnected by the defendant, but this was not done. The defendant must have known, or in the exercise of a high degree of care should have known, according to the jury’s finding, that the service had been restored in some way by the electrician called by the customer. With knowledge of this fact, actual or implied, the duty of inspection immediately devolved upon the defendant, as such restoration was contrary to its rules.

The conclusion results that the verdict and judgment should be upheld.

No error.

Barnhill, J.,

dissenting: The defendant’s employee disconnected the wires at the home at which the plaintiff’s intestate was killed and “tied them back.” They were located on the outside above the porch out of *701reach. The circuit was broken so that there was no danger therefrom. To hold that the defendant in this case is liable in damages for its negligent failure to thereafter inspect the wires is to hold that it was its duty to foresee: (1) That the occupant of the house would employ an electrician who would send an incompetent or careless assistant to make the repairs to the house wiring, over which the defendant had no control; (2) that such employee, instead of running the wires through the conduit provided, would install temporary wiring extending under the house to the switch; (3) that he would switch the wires at the terminal, attaching the energized wire to the neutral terminal and the ground wire to the “hot” or charged terminal, thus energizing the switch box and the BX cable; (4) then, contrary to the prevailing custom and in violation of the rules of the defendant, he would connect the house wires to defendant’s line, thus charging the house wires with electricity; and, (5) that the plaintiff’s intestate, or some other person, would go under the house and come in contact with the energized cable. To my mind this requires a degree of prevision bordering on the omniscient and is far-more than the law demands.

The point of delivery of current by the defendant was on the outside-of the house above the roof. Its wiring ended there. This is the law under' the rules and regulations governing electric service adopted by the Utilities Commissioner under authority duly vested in him by statute, C. S., 1112, subsections (b) (11).

The wiring within the house belonged to and was under the control of the property owner. The defendant had no right, and it was not its duty, to repair or inspect the same. There is no evidence that the defendant’s wires were improperly connected by the electrician to the-house wires or that an inspection thereof, had it been made, would have disclosed the conditions which caused the death. It is apparent that it would not have done so, for, in the final analysis, the dangerous situation was created by the improper connection of the wires at the switch box.

If it be conceded that the act of the defendant in leaving its energized wires disconnected at the house — in a harmless condition by reason of the fact that the circuit was broken — and in its failure to inspect, constitutes negligence, it was an act of omission, negative in nature. The-negligence of the electrician employed by the occupant of the house was active and constitutes the direct, proximate cause of the unfortunate and untimely death of plaintiff’s intestate. In my opinion, under no view of the evidence can it be said that the failure of the defendant to inspect its wires in any wise contributed thereto or proximately caused the same.

Under modern conditions when buildings are constructed provision is. made for electric lighting. The wires and incidental fixtures are frequently placed on the inside of brick or stone walls. In the selection or *702installation of tbe wires and fixtures tbe public service corporation bas no part. It merely delivers current at tbe point of intake designated by tbe owner. While I fully concur in tbe view tbat a distributor of electric current should be beld to a bigb degree of care, I feel tbat to adopt a rule wbicb requires it to inspect and approve sucb wiring before cutting on its current places upon tbe public service corporation an unreasonable, and, in most instances, an impossible task.

Winborne, I., concurs in dissent.