The opinion
Mr. Justice Cothran
(dissenting) : The only allegation of the complaint that casts even a shadow upon the otherwise sole unclouded purpose of the pleader to allege a joint tort upon the part of the defendants, is contained in the eleventh paragraph: “That all of
said
acts and omissions on the part of the defendants and the agents and servants of the defendant company were negligent, willful, wanton and grossly negligent and they caused and contributed to the injury aforesaid of Robert S. Week's, both jointly and concurrently.”
After setting forth “said acts and omissions” in the clearest manner possible as the acts and omissions of the defendants jointly, the eleventh paragraph was obviously inserted for the purpose of characterizing them as negligent, willful, etc., and not for the purpose of a separate allegation of wrongful acts by servants of the company other than the one named.
If it could possibly be construed as such, it could only refer to the servants who are alleged in the fifth paragraph of the complaint to have assisted Doughty in changing the wires, as to whom there is not the slightest evidence of negligence.
This being true, it was error to charge the jury that a verdict could be rendered against the company and in favor of the defendant, Doughty, for the reason that the alleged cause of action was based upon a joint tort of these defendants ; such a verdict, under the well-recognized rule declared in the leading opinion, being illogical, and for the further reason that thereby the jury was permitted to find a verdict against the company based upon a supposed act of negligence on the part of the company or of some other agent than Doughty.
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I think that the matter is conclusively settled by the two cases of
Durst v. R. Co.,
130 S. C., 165, 125 S. E., 651 , and
Pendleton v. R. Co.,
133 S. C., 326, 131 S. E., 265, 267 .
In the former it was alleged that the plaintiff was injured by a lamp that slipped from the hands of a flagman who was attempting to detach it from the bracket from which it was suspended, and fell into the plaintiff’s lap, in consequence •of which she was injured. There was no general allegation •of negligence. “Over the objection of the defendant railway company, the Circuit Judge allowed other evidence than that tending to sustain the specific act charged to the flagman, which evidence tended to show that the 'lamp was out of ■date, that it should have been fixed long ago, and that the fall was due to the negligence of some other servant than the ■flagman.” The Supreme Court held that such evidence was incompetent and should have been excluded, and that the ■plaintiff should have been confined to the proof of the facts alleged in her complaint, upon which she based her right -to recover.
In the latter the Court said:
“And since the injured party’s right to join two or more .alleged tort-feasors in one action may be sustained only upon the theory of joint liability, when a plaintiff joins two or more alleged wrongdoers as parties defendant in one action, such joinder in itself necessarily implies that he has elected to treat his injury as a joint tort, and to recover upon the theory of joint liability. Such election to sue upon the theory of joint liability logically involves the relinquishment ■of the right in that action to raise a ‘separable controversy’ with any one defendant and to recover against one or more .separately upon the theory of several liability in any sense ■other than that the plaintiff in such joint action is not bound to recover against all, but may recover against one or more .and not against others. * * *
“But since the very joinder of parties defendant in a vtort action is
prima facie
an election to treat the injury as a
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tort for which such parties are liable upon the theory of joint liability, it is obvious that there is no necessity for such motion to elect except in a case where the complaint is susceptible of no .other reasonable construction than that the plaintiff is attempting in the same action both to recover separately against one or more of the defendants upon the theory of several liability and to recover against them jointly upon the theory of joint liability.”
The jury having found a verdict in favor of the defendant Doughty, the complement of the company in the alleged’joint tort, it necessarily follows that the alleged joint tort has failed of maturity. The verdict logically therefore is referable to a separate and independent wrongful act' of the company, or to a separate and independent wrongful act of some servant or agent other than the defendant Doughty. The leading opinion manifestly proposes to sustain it upon the separate and independent wrongful act of Bullard, the superior of the defendant servant Doughty. This as the cited cases hold cannot be permitted.
Assuming, however, for the sake of argument that it would be permissible, in an action charging a joint tort against the master and a particular servant, to sustain a recovery of damages based upon an independent wrongful act of the company or of another servant, not included in the allegations of the complaint, I do not think that the evidence waranted the submission to the jury
of even the issue: of negligence
on the part of the company which is claimed to have existed through the conduct of Bullard, a construction engineer of the power company.
It is true that the defendant did not move for a nonsuit or a directed verdict upon this ground, nor upon the ground of the contributory negligence of the plaintiff; but it is-manifest that if there was no evidence of negligence on the part of the company, either by reason of its own direct or attributed act, no actual damages were recoverable, and as. a consequence no punitive damages.
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The existence of negligence is dependent upon the relation which the defendant sustained to the plaintiff and its duty to •him flowing from that relation.
As is well expressed in 20 R. C. L., 46: “It is essential to liability, then, that the parties shall have sustained a relationship recognized by law as the foundation of a duty or care.”
Largely determinative of the issue of duty or care is the complementary rule thus expressed by the same authority at page 11: “It is an undeniable philosophic truth * * * that a person’s liability for his acts, depends upon their ■tendency, under the circumstances, known to him.” And at jpage 13: “On the other hand, an injury is not actionable if it could not have been foreseen or reasonably anticipated.” Or in the oft-quoted and apt declaration of Chief Justice Gibson of Pennsylvania, “Precaution becomes a duty only where there is a reasonable apprehension of danger.”
It is substantially declared in
Barrett v. Lake Ontario Co.,
174 N. Y., 310 , 66 N. E., 968 , 61 L. R. A., 829: In order however to impute knowledge of a dangerous thing or place, the danger must have been such as is recognized by common experience, or might reasonably have been expected by a person of ordinary prudence and foresight.
In the leading opinion the following very clear expression of the law from 20 C. J., 355 is approved: ‘‘The exercise ■of a sufficient degree of care requires a careful and proper insulation of all wires and appliances in places where there is a likelihood or reasonable probability of human contact therewith, and the exercise of due care to make and keep insulation perfect at places where people have a right to go on business or pleasure.”
In
Foster v. Union,
129 S. C., 257, 123 S. E., 839, 842 , the Court said: “It is elementary that the foundation of liability for negligence ‘is knowledge — or what is deemed in law to be the same thing: Opportunity by the exercise of reasonable diligence to acquire knowledge — -of the peril which subsequently results in injury.’ ”
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Further the Court said: “ * * * the act here relied, on to establish actionable negligence must meet the further-test that it was an act or omission, from which, in the exercise of due care, danger of injury to those engaged in a legitimate use of the streets, etc., might reasonably have-been anticipated or foreseen.”
See also
Green v. R. Co.,
131 S. C., 124, 126 S. E., 441 , 38 A. L. R., 1448.
In
Austin v. Public Service Company,
299 Ill., 112 , 132 N. E., 458, 461 , 17 A. L. R., 795, it was held that in order to charge with liability a person engaged in the business of handling electric current, it is necessary that the injury which, results from such dangerous agency be one which a person of ordinary prudence, in the light of the surrounding circumstances, would reasonably and naturally have anticipated. The Court said: “In order to charge a person engaged in the-business of handling electric current with liability, it is necessary that the injury which results from such dangerous-agency be one which a person of ordinary prudence, in the light of the surrounding circumstances, would reasonably and naturally have anticipated.”
In
Bunten v. Eastern Co.
(Minn.), 228 N. W., 332 , it was held, quoting syllabus :
“Company, without reasonable cause to anticipate persons-will come in dangerous proximity to wires, is not negligent in failing to place wires higher. * * *
‘‘Company maintaining high tension wires where it has-no reasonable cause to expect people will go need not provide-insulation or other safeguards.”
In
Love v. Virginian Power Co.,
86 W. Va., 393 , 103 S. E., 352, 355 , the Court said: “Cases holding that such a company has breached no duty owed to a plaintiff injured by contact with its wires generally are distinguishable from those just cited upon the ground that the accident was of such a nature that the company in the exercise of reasonable care did not know and could not reasonably be expected to>
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anticipate the presence of plaintiff at the point where the injury was received, or because the latter was aware of the danger and took the risk on his own responsibility.” (Citing numerous cases.)
The ruling principle is quite well expressed in
Thompson v. Lamar
(Mo. Sup.), 17 S. W. (2d), 960, 961 , as follows: “Maintenance of uninsulated high-voltage wires in close proximity to place where lawful presence of persons is reasonably anticipated, and where they may likely come in contact with wires, is negligence
per se.”
The case of
Williams v. Sumter,
149 S. C., 375, 147 S. E., 321 , was decided upon the principle that where the defendant had no reason to anticipate an injury from the location of its electric wires, there was no liability.
(By what I shall hereinafter advert to, in the conduct of the plaintiff, I do not wish it understood that any reliance is intended to be placed upon it as contributory negligence on his part. It is intended to demonstrate that his .conduct was so careless, moved by his own volition, at a place and in a manner not reasdnably to have been expected by the company, as to place the case beyond the possibility of evidencing any duty which the company owed him under the foregoing principles of the law of negligence.)
The undisputed facts of the case are these:
There was maintained by one Beck, at a point a few miles from Sumter, a place of amusement, consisting of camping grounds, picnic grounds, a swimming pool, and a dance hall, frequented by the public generally, “upon pleasure bent”; the principal building was occupied by a store on the ground floor and a dance hall on the second floor; it was located very near the public highway, the end of the building fronting it; on each side of the hall was a veranda, extending the length of the hall and at right angle with the front; they were used by the visitors generally; the power line of the company was located on the edge of the highway, and as it passed the front of the building, it was about 5 feet above the level of the
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floor of the veranda, and 19 inches from and 2 feet above a 3-foot banister at the highway end of the veranda; the plaintiff was sitting on the banister, one leg upon it and the other on the inside of the piazza, leaning against a post at the corner of the piazza; the wire was 19 inches away and 2 feet above him; moved by some impulse, we know not what, which he does not explain, did not know, he reached across this space and caught hold of the wire and received his injury; he admits in his testimony that he knew that the wire was there, saw it, saw that it was not insulated, and knew that if he touched it he would receive an electric shock.
The relation between the plaintiff and the company may be analyzed thus: He was a member of the public lawfully upon the premises of the amusement proprietor; a great many people were accustomed to frequent the place; the defendant knew this, and it was supplying electricity to the proprietor; the plaintiff, while enjoying the amusements furnished, was entitled to reasonable care on the part of the company in operating so dangerous an element as electricity, to so conduct its business as not to injure him. That duty arose and continued while the plaintiff was so engaged, and necessarily did not exist when, while in a position of absolute immunity from any defect in the wires, he suffered injuty by reason of his own voluntary, intentional act.
That the plaintiff was guilty of negligence in needlessly, heedlessly, without motive, voluntarily grasping the known uninsulated wire, appears too plainly for discussion. He was a young man, within two days of seventeen years of age, of more than ordinary intelligence; a student at the Citadel, an institution of very high grade;
he knew of the presence of the wire and that it was uninsulated;
it was not in his way, or in any wise obstructing his participation in the amusements and pleasures afforded by the resort; there was no • reason in the world why he should have grasped the wire, and he was unable to give any excuse for his doing so; all that he could say was that he did not know why he did it;
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that he simply reached up and caught hold of it. There was a feeble effort to lay the foundation for an inference of an accidental contact with the wire, by establishing his constant habit of gesticulation, which however fails as his admission that he intentionally grasped the wire*, but could' not explain why. If his act was inexplicable to him and intentionally done, how is it possible for the company to explain it, or reasonably to have anticipated ■ what he himself could not explain and intentionally did?
If the plaintiff had accidentally come in contact with the wire while he was dancing, swimming, participating in any of the amusements and pleasures of the resort, or sauntering around as a sight-seer, there would be ground for holding the company responsible for not sufficiently protecting him against injury from such contact; but the facts do not present such a case. He had a right, of course, to sit upon the banister; he was where he had a right to be; the uninsulated wire was not in his path at all; it was doing him no harm; it became (effective for harm
by his own voluntary, intentional act,
one of unquestioned negligence.
As the Court said in the case' of
Green v. R. Co.,
246 Pa., 340 , 92 A., 341, 342 , L. R. A., 1915-C, 151: “It is settled law that no liability results from failure to anticipate wrongful acts by others.”
I apprehend that the same principle would apply to the
negligent
acts of others, unless it can be shown that they were
induced
by the primary act of the defendant, not simply that that act presented the opportunity or occasion for the negligence of such others. This principle, of course, would hot be applicable to injuries sustained by immature children, under the attractive nuisance line of cases.
The only circumstance relied upon, except the lack of insulation on the wire, was the fact that a young lady, a few days before the plaintiff was hurt, had done the same -thing that he did, and received a shock. Her conduct doubtless was of the same heedless character. It is not to be assumed that
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the careless act of one is to be considered sufficient notice to the company that some one else will be guilty of the same careless act. It was, of course, the duty of the defendant to construct and operate its line with a view to the probability of injury to persons reasonably to be expected to come in contact with its wires. One sporadic act of injury by carelessness is certainly no notice to the company of such a custom as would reasonably call for precautions against a recurrence by some other person similarly heedlessly inclined.
If the company cannot be charged with the duty of anticipating such an event, it certainly could not be charged with the duty of insulating its wires.
The case does not at all present the feature so often appearing in cases of attractive nuisancest such as
Hayes v. Southern P. Co.,
95 S. C., 230, 78 S. E., 956 ;
Renno v. R. Co., 120
S. C., 7, 112 S. E., 439 .
See
Sexton v. Noll,
108 S. C., 516, 95 S. E., 129 , where the rule of reasonable anticipation is well expressed.
Besides, there is no evidence tending to show t¡any negligence on the part of the defendant in not generally insulating its wires. There is evidence tending to show that it is the safer practice not to do so. Of course, if the circumstances are such as to reasonably require such insulation at a particular place, the failure to do so might be considered negligence.
Another ground for the denial of recovery in this case is that assuming the negligence of the company it is clear that the intervening, unconnected act of the plaintiff produced his injury. The principle is well illustrated in the
Poster case, supra.
In speaking of the law of proximate cause, the Court said: “The injury to plaintiff could not have been anticipated without foreseeing the act of the father, or o'f some other person acting to the same end, in taking the house wire into the street by means of an extension cord, or other device. Obviously, the foresight which the law imputes to a tort-feasor
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cannot extend to consequences brought about by the intervention of a responsible human being, where the act of the intervener breaks the chain of causation between the original wrong and for the injury complained of, and is in itself sufficient to constitute an efficient, responsible cause of the injury. Under the undisputed facts of this case the act of the father in carrying the house wire and lamp into Lybrand Street would seem clearly to meet the test of what constitutes such an efficient, intervening, proximate cause of an injury. It was not an act induced, produced or set in motion by the alleged negligent act of improperly placing the wires or by any other delict of the city. It was not an act, * * * which, in the discharge of the particular duty owed to the plaintiff, the city could have foreseen in the exercise of reasonable diligence. It was an act without which the plaintiff’s injury could not have happened. * * * In that situation we think the act of the father was such an efficient, intervening, responsible cause of the plaintiff’s injury as would as a matter of law make of that act the proximate cause of the injury and the alleged negligent placing of the wires in Lawson avenue merely the condition by which the injury was made possible and not a concurring proximate cause thereof.”
In
Dudley v. Ry. Co.,
110 S. C., 73, 96 S. E., 478, 479 , the Court said: “If the owner maintains a dangerous agency upon his premises, the law imposes upon him the duty of anticipating such injuries as proximately result from his failure to safeguard the public from injury; but in discharging this duty he is only required to exercise ordinary care.” In
Cannon v. Lockhart Mills,
101 S. C., 59, 85 S. E., 233, 234 , it was held that when, in the sequence of events between the original default and the injury complained of, an independent cause intervened, the intervening cause be held ordinarily to have been the proximate cause. In this case the Court quotes with approval the following from
Insurance Co., v. Tweed,
7 Wall., 44 , 19 L. Ed., 65 : “If the misconduct
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is of a character which, according to the usual experience of mankind, is calculated to
invite or induce the intervention of some subsequent cause,
the intervening cause will not excuse him, and the subsequent mischief will be held to be the result of the original misconduct. This is upon the ground that one is held responsible for all the consequences of his act which are natural and probable, and ought to have been foreseen by a reasonably prudent man.”
I concede that if the defendant was guilty of negligence in the location of an uninsulated wire, and that act induced or was the probable cause of the intervening negligent act of the plaintiff in grasping the wire, the causal connection between the initial act of negligence and the injury would not have been broken. I do not see how it is possible to come to such a conclusion from the facts of this case.
I concede also that if the act of the company, assumed to have been negligent, produced an impulsive, involuntary act on the part of the plaintiff in grasping the wire, there would be no ground for holding that the chain had not been broken; but here there was nothing unusual about the condition of the wire at the time the plaintiff grasped it, which could have produced such an impulse; in fact, it appears that he knew of its presence and condition which were not suddenly presented to him, and could not therefore have converted his intentional act into an impulse.
I have not considered to any extent the question of punitive damages for two reasons : (1) There is no evidence that under the circumstances the defendant owed the plaintiff the duty to protect its wires from his voluntary, intentional, uninduced act in grasping the wire; if there was no such duty, there could be no breach of it and consequently no right to damages, actual or punitive resulting from the injury sustained by the plaintiff. (2) That there is not a particle of evidence in the case warranting the infliction of punishment upon the defendant for damages resulting from a conscious disregard of its duty to the plaintiff.
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For these reasons I think that the motion for a directed verdict in favor of the defendants should have been granted.