Evans v. Eastern Ky. Tel'p. & Tel'g. Co.

| Ky. Ct. App. | Feb 14, 1907

Opinion op the Court by

Judge Hobson

Reversing.

Lewis Evans owns a house and lot in the town of Proctor, Lee county, Ky. In August, 1902, he made a contract with the Eastern Kentucky Telephone & Telegraph Company by which it placed a telephone box in his house connected by wire to the defendant’s exchange, and he agreed to pay it the sum of $1 a month for a period of 12 months for the use of the telephone. At the end of the year he notified the telephone company to remove the telephone box and wires from his house. It took out the telephone box, but failed to remove the wires, simply cutting them loose from the telephone box and leaving them in the house. Thus things stood until July 10, 1904, when there was a severe thunderstorm and the lightning struck a locust tree not far from Evans’ house to which the wire of the telephone company was attached. The lightning tore up the tree and passed along the wire into the house, tearing up the room in which the wires had been left and damaging the property. The wires had remained in his house about 10 months after the telephone box was taken out before the house was struck by lightning During this time Evans knew that the wires were still in the house, but did not request the telephone' company to take them out, not knowing that it was dangerous for the wires to remain attached to the house after the box had been taken away, this being the first experience he ever had with a. telephone. Tie sued the company for damages to the house, charging that the loss was due to its negligence. The defendant filed an answer denying the allegations of the petition. On the trial the plaintiff proved, in substance, the facts we have stated. The court peremptorily instructed the jury to find for the defendant.’ This was done, and, judgment having been entered dismissing the plaintiff’s petition, he appeals.

. It is insisted that the loss was due to the act of God, and that the plaintiff was as much responsible for the trouble as the defendant. "While lightning is the act of God, the carrying of the lightning in the plaintiff’s house on its wire which it had left in the house was the act of the defendant, and it was a question for the jury whether the defendant had used such care as might be reasonably expected of a person of ordinary prudence under the circumstances. . The plaintiff had ordered the defendant to take out both the box and the wires, and it was a question for the jury whether he, by his want of care, contributed to the loss, or acquiesced in the wires remaining in the house when he knew, or by ordinary care should have known, the danger. He had once notified the company to take out both the box and the wires, and, though he knew that they had not complied with his request, he may not have known that they had so left the wires as-to be a source of danger. In 27 Am. & Eng. Ency. of Law, 1017, tbe rule is thus stated; “In placing wires for conducting electricity into a house, a telephone company owes the persons living there the exercise of reasonable care, proportioned to the known dangers of the conditions to prevent the wires acting as conductors of lightning into the building, and it is liable for damages resulting; from neglect to provide against this danger. Especially is it liable where damage from lightning occurs through its failure to remove its wires when the person living in the house has ceased to subscribe for a telephone. ’ ’'

Judgment reversed, and cause remanded for a new trial.