Staring v. Telegraph Co.

Jacob Schwartz, for appellant.

Frederick Collin, for respondent.

MARTIN, J.: The plaintiff in his complaint alleged that as he was driving upon a public highway in the town of Elmira, N. Y., the defendant, while engaged in removing the telegraph wires from its poles (which were set along such highway), negligently, wrongfully and unlawfully attempted to throw one of its wires over the plaintiff, his horse and wagon, while he was on said highway, and in doing so negligently, wrongfully and unlawfully struck the horse with the wire, and also at the same time negligently, wrongfully and unlawfully struck the plaintiff's wagon, and thereby frightened his horse and caused him to run away and greatly injure the plaintiff. A careful examination of the evidence shows that it was sufficient to justify the jury in finding the facts alleged.

The court submitted to the jury the question whether the highway where the accident occurred was wrongfully obstructed by the defendant, and charged that if the plaintiff's injury was caused by such obstruction, and he was free from contributory negligence, he was entitled to recover. The court also charged: "If you find from this evidence that in consequence of the carelessness or negligence of this defendant, this plaintiff has been injured, and that injury has been caused without any contributory negligence on his part, and you come down to the question as to how much damage he has sustained, you will consider that question as coolly, as dispassionately as you would consider a question of that kind between two of your neighbors." At the conclusion of the charge the defendant's counsel requested the court to charge "that there can be no recovery in this case unless they find that the defendant's servants negligently and wrongfully, in an attempt to throw the wire which they were removing over the plaintiff, struck the horse or wagon." To this request the court replied: "I refuse to charge upon that subject or other

Staring v. Telegraph Co.

than what I have charged upon that subject." To this the defendant excepted. The defendant also excepted to the charge so far as it instructed the jury that the plaintiff was entitled to recover if they should find that the injury was caused by a wrongful obstruction of the highway by the defendant.

The plaintiff was lawfully upon the highway when the accident occurred. He had a right to assume that it was in a safe condition and would not be obstructed or rendered dangerous by any act of the defendant. Jennings v. Van Schaick, 108 N. Y. 530 (13 N. Y. State Rep. 686.) The defendant's right to the use of the highway for the purpose of constructing, maintaining or removing its telegraph line was subject to the use of the traveling public. The defendant had no right to use the highway so as to obstruct it or render it dangerous to public travel. Sheldon v. Western Union Tel. Co., 51 Hun, 591 (22 N. Y. State Rep. 837.)

The appellant claims that the case was submitted upon an erroneous theory, in that the cause of action alleged was for negligence while the case was submitted to the jury on the ground of an unlawful and wrongful obstruction of the highway. The evidence was sufficient to justify the submission to the jury of the question whether the defendant wrongfully obstructed the highway at the place where the accident occurred thereby causing the plaintiff's injury, and to uphold the verdict on that ground. Therefore the only question presented is whether under the pleadings it was error to charge that the plaintiff might recover upon that ground. No objections to the evidence were made on the ground of the insufficiency of the pleadings nor were the exceptions to the charge or refusals to charge placed on that ground.

The complaint was for the wrongful and unlawful act of the defendant as well as for its negligence. The allegations of the complaint were not of a mere omission by the defendant to perform some act or duty, but were that it committed a positive act which was wrongful and unlawful. The

Shelton v. Railway Co. and Telephone & Telegraph Co.

act was proved and alleged. The proof tended to show that it constituted a wrongful and unlawful use of the highway which amounted to an obstruction. It will be observed that the court in effect submitted to the jury the question whether the transaction which was the basis of this action was as alleged and proved by the plaintiff or whether it was as claimed by the defendant, and that the court instructed the jury that if it was as alleged and proved by the plaintiff he could recover, if not, that their verdict should be for the defendant. In the charge the court sometimes referred to the act of the defendant, as proved by the plaintiff, as an obstruction to the highway, and at others as negligence by the defendant.

The error claimed seems to relate more to the form of expression employed by the learned trial judge than to the substance or effect of the instructions given. We think the complaint was sufficient to sustain the recovery in this action, and that the defendant's contention that the case was submitted to the jury upon an erroneous theory cannot be sustained.

Judgment and order affirmed, with costs.
MERWIN J., concurs; HARDIN, P. J., not sitting.

NOTE.-See note to Williams v. Elec. Lt. and Power Co., posi.

C. F. SHELTON V. UNITED ELECTRIC RAILWAY COMPANY AND CUMBERLAND TELEPHONE AND TELEGRAPH COMPANY.

A horse having been killed by contact with a telephone wire, it appeared that the telephone company had negligently permitted its broken wire

Shelton v. Railway Co. and Telephone & Telegraph Co.

to fall and remain upon the trolley wire of an electric railway company, which in turn had failed to provide its trolley wire with a guard wire and to observe the condition of the telephone wire, which was such as to arrest the attention of a prudent man engaged in the business of either company.

Held, that the trial court properly found that both companies were guilty of negligence and jointly liable.

APPEAL from Circuit Court of Davidson county. Action for damages. Appeal by defendants below. Facts stated in opinion.

Sleger, Washington & Jackson, for Railway Company. Vertrees & Vertrees, for Telephone Company.

J. L. Nolen, for Shelton.

TURNEY, Ch. J.: Shelton's horse was killed by coming in contact with a wire of the telegraph and telephone company, which had fallen across the trolley wire of the electric railway company. The wire of the telephone company had become much impaired. The falling of a wall of a burning building broke a pole of the telephone company, breaking the wires at several points. At the point of the accident the telephone wires crossed the railway track above the trolley. A broken wire fell across the trolley wire, and, while resting on it the horse came in contact with it and was instantly killed. There was no guard wire over the trolley wire. The case was tried by the circuit judge without the intervention of a jury. The condition of the telephone wire was such as to arrest the attention of a prudent man engaged in the business of either company. The circuit judge found, under the facts, that both companies were guilty of negli gence and responsible for the loss, and gave judgment accordingly. The judgment is correct. While it was the primary duty of the telephone company to see that its wires were in a reasonably safe and sound condition, and protected against the contingency of falling, it was also the duty of the electric company to see that its trolley wire

Williams v. Light & Power Co.

was in like manner protected from such contingency. While it was the duty of one company not to use unsound and unprotected wires, it was equally the duty of the other not to operate its road under such defective machinery. It might as well insist that it was not responsible for damages resulting from the fall of a rock which it had constantly recognized as threatening to fall, or of a dead tree which it had frequently noticed with decayed and giving roots, and knew would fall in the first wind or rain. The obligation to see that its road was in good repair, and its machinery in safe operating order, is not confined to the immediate and abstract presence of either, but extends to all surroundings that may depreciate the security of either. Both companies knew of the unprotected trolley wire, and the consequences of a contact of the wires of the one with those of the other. Both knew of the unsoundness likely to produce a fall of the one upon those of the other. Both were bound to guard against such likelihood, and, having failed to do so, are liable.

Affirmed.

NOTE.-See note to next case.

JAMES WILLIAMS V. LOUISIANA ELECTRIC LIGHT & POWER COMPANY.

Supreme Court of Louisiana, March 23, 1891.

(43 La Ann. 205.)

OBSTRUCTION OF STREET BY ELECTRIC LIGHT WIRE.

(Head-note by the court):

The driver of a float with a heavy load above the ordinary height is not guilty of contributory negligence in veering from one side of a street to the other to avoid collision with a wagon in front, although in thus doing his float and load came in contact with an electric light wire suspended over parts of the street at a distance of fifteen feet from the ground.