Cumberland Telephone & Telegraph Co. v. Lawrence, 271 F. 89

Cumberland Telephone & Telegraph Co. v. Lawrence

271 F. 89 | 5th Cir. | 1921

WALKER, Circuit Judge.

This was an action by the defendants in error against plaintiff in error, Cumberland Telephone & Telegraph *90Company (herein called the defendant), to recover damages caused by the death of George Dewey Lawrence, which was attributed to- wrongful conduct of the defendant in so placing on a sidewalk in a public street in the city of Gretna, La., a galvanized guy wire of neutral tint, difficult to be seen by day, and not visible at night, with which the deceased’s person came in violent contact on the night of September 29, 1918, when he jumped across a gutter in crossing from one side of the street to the other, near the middle of a block, at a point near where the guy wire was fastened at the ground about 30 feet from the pole, near the top of which the other end of the guy wire was fastened. The guy wire was erected in the manner stated by the defendant prior to May, 1913. The fact that at the time the deceased was hurt as above stated the defendant’s telephone and telegraph system was, and had been since August 1, 1918, in the possession and control of the Postmaster General, in pursuance of the President’s proclamation issued under the power conferred by a joint resolution of Congress (40 Stat. 904), was set up as a defense. The court ruled against that defense by refusing a request that a verdict in favor of the defendant be directed.

[1, 2] The right of defendant to construct its line along the street did not include the right thereby to obstruct the ordinary use of the street. Acts La. 1880, No. 124. The defendant was without right so-to place its guy wire as to create an obstruction dangerous, especially at night, to one making a lawful use of the street. Wilson v. Telephone & Telegraph Co., 41 La. Ann. 1041, 6 South. 781; Nesson v. City of New Orleans, 134 La. 455, 64 South. 286, 51 L. R. A. (N. S.) 324. The deceased’s use of the street was not rendered unlawful by the circumstance that he crossed it at a place other than the regular crossing. Weber v. Union Development Co., 118 La. 77, 42 South. 652, 12 Ann. Cas. 1012.

[3] The liability of the creator of a nuisance for the reasonably to-be expected consequences of it does not cease to exist as a result of the property or structure constituting it passing from his possession or control. He remains liable because he was the author of the original wrong. Plumer v. Harper, 3 N. H. 88, 14 Am. Dec. 333; East Jersey Water Co. v. Bigelow, 60 N. J. Law, 201, 205, 38 Atl. 631; Hyde Park Thomson-Houston Light Co. v. Porter, 167 Ill. 276, 47 N. E. 206; Crommelin v. Coxe & Co., 30 Ala. 318, 329, 68 Am. Dec. 120; Philadelphia & R. R. Co. v. Smith, 64 Fed. 679, 12 C. C. A. 384, 27 L. R. A. 131, 20 R. C. L. 292. Whether the original wrongdoer’s successor in possession and control was liable is a question which is not presented for decision. The defendant was not, on the above-mentioned ground, entitled to háve a verdict in its favor directed.

Other questions raised in behalf of the defendant are not considered to be such as to call for a discussion of them. The issues were properly submitted to the jury.

No reversible error being shown, the judgment is affirmed.

BRYAN, Circuit Judge, did not take part in the decision of this case.