148 Ky. 320 | Ky. Ct. App. | 1912
Opinion of the Court by
Reversing.
“Instruction Number One. The court instructs the jury that the law made it the duty of the defendant, the city of Louisville, and of its agents and servants charged by it with the care and inspection of its highways, to*322 exercise ordinary care in the inspection thereof, and to have and maintain the same in a condition reasonably safe for the use of the public, and if the jury shall believe form the evidence that the pole, in the evidence referred to, by which plaintiff was injured, was at and prior to the happening of plaintiff’s injury in such a decayed, rotten and dangerous condition ¡as to render its fall by reason of such condition probable, and if the jury shall further believe from the evidence that the decayed, rotten and dangerous condition of said pole, if it was in such condition, was known to the city of Louisville, or to its said agents, or ¡any of them or could have been known to’ them or to any of them by the exercise of ordinary care, long enough prior to the happening of plaintiff’s injury to have enabled the said defendant, or its agents, by the exercise of ordinary care, to have removed the said pole from the highway, ¡and if the jury shall further believe from the evidence that the said pole, by reason and because of its rotten, decayed and {dangerous condition, fell upon plaintiff, and that he was thereby injured, then the law is for the plaintiff ¡as against the city of Louisville, and the jury should so find.”
“Instruction Number Two. As to the defendant, the American District Telegraph Company of Kentucky, the court instructs the jury that if they shall believe from the evidence that, at and prior to the happening of plaintiff’s injury, the pole, by which he was injured was being used by the said defendant as a guy pole, and was attached by a guy wire to the pole on the corner of Olay and Caldwell streets, to which said pole -the wires of the said defendant were then attached, and if they shall further believe from the evidence that the said guy pole was, ¡at the time of plaintiff’s injury, in a decayed, rotten and dangerous condition, and that its decayed, rotten and dangerous condition was known to the said American District Telegraph Company of Kéntucky, or its agents charged by it with the care and inspection of its poles, or could have been known to- them, or to any of them, or to the said defendant, by the exercise of ordinary care, and if the jury shall further believe from the evidence that the said guy pole by reason and because of its unsound, rotten and decayed condition, if it was so unsound, rotten and decayed, fell upon plaintiff and on the occasion in the evidence referred to and*323 that plaintiff was thereby injured, then the law is for the plaintiff, and the jury should so find.”
“Instruction Number Four. The court instructs the jury that although they may believe from the evidence that the defendant’s associate or co-employe, Connaughton, wrapped the hose, in the evidence referred to, around the guy pole in the evidence referred to, and that by reason thereof the s-aid pole was exposed to a certain amount of pressure, and that the act of. the said Connaughton contributed to the fall of the pole, such act on the part of the said Connanghton does not excuse the defendants, or either of them, if the jury shall believe from the evidence that but for the decayed and rotten condition of the said pole, if it was so decayed and rotten as to be unsafe and to render its fall probable, the said pole would not have fallen, and the plaintiff would not have been injured.”
The jury found- for the plaintiff against the city in the sum of $4,000, and against the telegraph company in the sum of $2,000. The court refused a new trial, and entered judgment on the verdict. The defendants appeal.
Each of the defendants insists that the court should have instructed the jury peremptorily to find for it under the evidence, and that the instructions given the jury were erroneous, if the case should have been submitted to the jury.
1. As to the city of Louisville:
Although the city erected this pole iand used it for a number of years,, still if it ceased to use it and the District Telegraph Company then took charge of it, the city was thereafter under no greater obligation to look after this pole than any other pole in the use of the telegraph company. The telegraph company, it is true, made no agreement with the city before it took possession of the pole and began using it. It had been in possession of the pole for a number of years- when the accident occurred. The pole stood to all intents as one of its poles, and the obligation to keep it safe rested primarily upon it. After the telegraph company took possession of the pole, the city had the right to anticipate that it would do its duty. The city is not required to inspect the poles, wires and other structures belonging to public service corporations, and placed in the streets under their franchises. We do not see that this pole can be distinguished from the pole of any telegraph or lighting company in
“If tbis is a correct statement of tbe law, it follows, tbat witb respect to all tbe appliances in tbe shape of poles, wire, lamps, cables and the like placed in the city streets, by telephone, telegraph, electric light, electric power, electric and cable street car companies, there rests a primary dutyand obligation upon the cityto keep them in safe condition, and to make tbe inspection necessary to detect defects in order tbat tbe same may be promptly repaired. If tbis duty rests upon tbe city, then it will be compelled to keep in its employ men who possess tbe knowledge and skill needed to detect defects, and, when detected, to repair and keep in proper condidition, tbe electric wires and tbe cables and other appliances used in tbe streets; and it is- apparent tbat tbis would of necessity lead to a conflict in many instances between tbe city and tbe companies owning and operating tbe electric and cables plants.”
But while tbe primary duty to keep tbe post in a safe condition rested on tbe telegraph company the city could not witb impunity, knowing its dangerous condition, bold out tbe street to tbe traveling public as a safe highway. Tbe pole stood in tbe street. Tbe rule maintained by tbe weight of authority as to tbe duty of tbe city in such matters is as follows:
“Tbe duty of a municipal corporation to keep its streets in safe condition requires it to take reasonable precaution against dangers from overhead as well as under foot. Tbe danger and tbe unsafety may be as great and tbe consequences as injurious?, as in tbe casé of a defect in, or obstruction upon, tbe surface of tbe street; and a city has been held liable for injury to one struck, without contributory negligence, by a structure or object overhanging or projecting into a street dangerously ' low. On tbe same principle, tbe liability of cities for injuries occasioned by tbe fall of dangerous and insufficiently supported structures, wbicb have negligently been permitted to overhang a street, has been maintained in many eases. But tbe liability of tbe city in such cases can arise only when tbe notice of tbe danger has actually come to- tbe servants of tbe corporation,*325 or may be imputed to them while in the ordinary exercise of their duty.” 28 Cyc., 1379.
To the same effect see 2 Smith on Municipal Corporations, Section 1542; 4 Dillon on Municipal Corporations, Sec. 1705. '
Under the scintilla rule, which maintains in this State, there was sufficient evidence for the plaintiff to take the case to the jury; but Instruction One is erroneous in so far as it places upon the city the duty of inspection. The word “inspection,” wherever it occurs, should have been omitted in Instruction One. Also the words “or could have been known to them, or to any of them, by the exercise of ordinary care.” The court will also add to Instruction One these words: “Unless the jury find as set out in Number Four.” By another instruction the court will tell the jury that if the facts known to the city or its officers, referred to in Instruction One, were sufficient to apprise a person of ordinary prudence that the pole was rotten, and in a dangerous condition, then they knew its condition, within the meaning of that instruction.
2. As to the American District Telegraph Company:
The District Telegraph Company was using the telegraph pole at the: corner for its wire, and a wire connected this pole with the guy post. The reason for the guy wire was that without it there was danger of the pole at the corner being pulled out of its position. The guy post was a part of the telegraph pole, and the telegraph company was as much responsible for the guy post as for any pole in its possession. It ialone had had possession of the pole for years, and the duty was imposed upon it to keep its pole and post in a reasonably safe condition. The post should have been strong enough not only to hold the strain that would come upon it from the guy wire, but it should also have been strong enough to withstand such strains ias might reasonably be anticipated from persons passing along the street, or from wagons and teams driven thereon. If the post had fallen by reason of some person running against .it, or some team striking it, a very different question would be presented, for it was incumbent upon the company to keep its post in a reasonably safe condition, considering the strains which it might reasonably be anticipated would be put upon it from such causes. But the company was not required to anticipate that a fire hose would be wrapped around its guy post,
On another trial, the court will add to Instruction Two these words: “.Unless the jury find as set out in Number Pour.” In lieu of Number Four, the court will instruct the jury that if the plaintiff or his associate wrapped the hose around the post, and the strain of the reel on the hose caused the post to fall when it would not otherwise have fallen, they should find for the defendants.
It was incumbent upon the telegraph company to maintain its pole in a reasonably safe condition for the purposes for which it was intended, and to keep it sufficient to withstand such strain as might reasonably be anticipated from the travel on the street. If the pole had fallen from a wagon running against it, or from the crowd on the sidewalk jostling against it, the question of concurrent negligence would be presented. But the company was under no obligation to maintain a pole in such a condition that a fireman might safely wrap a hose around it, and if the strain of the hose caused the pole to fall, this use of the pole for a purpose for which it was not intended was the proximate cause of the injury. Georgetown Telephone Co. v. McCulloch, 118 Ky., 182; Sydnor v. Arnold, 122 Ky., 557; I. C. R. R. Co. v. Mercer, 24 R., 908, 70 S. W., 287. The case would not be essentially different if a builder had fastened to the post a rope sustaining a derrick, and this had pulled the post down and caused it to strike Oldham.
The declarations of Oldham as to how the accident occurred are substantive evidence against him, and may be proved without his being first interrogated as to them, pursuant to Section 597 of the Civil Code.
The post which fell was introduced before the jury, and it is not before us. Appellee malms the point that all the evidence is not here, and that the judgment must for this reason be presumed correct. But all the evidence is here within the meaning of the rule. Oldham was also in person before the jury, and if the contention now made were sustained, it would be necessary in
Judgment reversed and cause remanded for a new trial and further proceedings consistent herewith.