109 Neb. 500 | Neb. | 1922
This was an action to recover from the defendant Central Power Company damages arising from personal injuries resulting to the plaintiff from collision with a guy wire maintained by the defendant company in a public alley in the city of Kearney. The trial court fbund that there was no showing of negligence on ‘the part of the defendant company and directed a verdict in its favor. From a judgment on this verdict the plaintiff appeals.
The only question presented is whether or not the evidence, construed most favorably to the plaintiff, is sufficient to have presented an issue for the jury on the question of whether or not the guy wire, as located, furnished an unnecessarily dangerous obstruction to public travel; in other words, whether or not the plaintiff had proved any negligence on the part of the company in maintaining the wire at the place and under the conditions shown.
The alley runs north and south and is 20 feet wide. Entering the alley from the south there are business buildings on the right-hand side, many of them having doors opening upon the alley. On the left-hand side is a lumber yard and a fence running along it next to the alley. The fence is a foot from the edge of the paving. A row of telephone poles extends along the left-hand side of the alley. They are placed in the paving. From the center of these poles it is two feet and eight or ten inches to the outside edge of the paving. One of these poles is about 100 feet north from the south entrance of the paving, and this pole has attached to it the guy wire in question, which extends south and is anchored in the paving two and one-half feet from the left-hand edge thereof. The place where it is anchored is about 60 feet south from the pole, to which it is at
By the ordinances of the city, authorizing companies to place their poles in the streets and alleys of the city, it was provided that such poles .and wire shall be so erected “as to in no manner interfere with the' public use of the streets, alleys and sidewalks of said city,” and the franchise ordinance, under which the defendant company was authorized to maintain its poles and wires in the highways, provided that all poles should be placed “within or adjacent to the curb line of the street and in such manner as to not unnecessarily impede public travel, or unnecessarily interfere with the rights of adjacent owners or occupants.”
The defendant introduced testimony of men experienced in telephone construction, who testified, from their
It seems to be argued that the necessity of placing the
The franchise ordinance contemplated that poles should be placed along the curb line. Where the curb line and the property line of the alley 'were one, it does not ■follow that the company had the right to place its poles and guy wires out in the paving at whatever convenient distance it found necessary in order that the cross-arms which it should use, in such lengths as it should judge proper, should not extend over private property. There Avas nothing to compel the company to so place its cross-arms as to extend over private property, even though it should place its poles at the edge of the alley. The engineers did not testify that the arms could not be made to extend from one side of the pole alone, a manner of construction not uncommon, though they did testify that to attach the five wires directly to the poles, one above the other, without the use of arms or brackets, would make it dangerous to men on the poles when working with the electric wires. There were no buildings to interfere with the overhang of cross-arms on these poles, nor would the encroachment actually interfere with the use of. adjacent property by the owners. The right to such encroachment the company had the ability to procure, if it should have found it necessary.
It is manifest that the location of a pole in the paved portions of a street, being so easily seen, would not create the same danger to people using the street as would a bare wire located in the same place, for a wire is not, under all circumstances, an obvious obstruction. The placing of wires in the street must be done with reference to the possible use of the street by the people traveling thereon, and the company maintaining guy wires in the street must use ordinary care to see that no unnecessary danger is created thereby. In a number of cases it has been held that the- placing of guy wires within the limits of the street, even though the wires
In the instant case the guy wire was located in the traveled portion of the street. The plaintiff was required to act quickly in an emergency. What, to a quick glance, might appear to be an open way upon a paving laid out and intended for travel, was, in fact, a path dangerously obstructed by a slanting wire. The paving of the alley presented to him a place 20 feer wide in which to operate his car. He was only some 12 feet from the wire as he attempted to turn out for the child. He testified that he could not see the wire, and the companion who was in the car with him testified that he did not see the wire and did not know what had caused the car to turn over until after the accident had happened. The plaintiff did not remember that he attempted to stop the car. Not having seen the wire, he would not have been callqd upon to do so. Had the wire been so open to view as to present a dangerous obstruction at a glance, the plaintiff, if traveling at the rate of speed testified to, should have been able to stop. We cannot say, under these circumstances, that as a matter of law the defendant was guilty of no negligence in maintaining the wire anchored in the paving and over two feet from the edge thereof, in such close proximity to where it knew vehicles must pass, and
A case somewhat similar to the one here is that of Louisville Home Telephone Co. v. Gasper, 123 Ky. 128, 9 L. R. A. n. s. 548, where a truck in the day-time ran onto an unguarded guy wire, placed in an alley 18 inches from the side fence, and it was held that the question of whether or not the maintenance of the unguarded wire, an obstruction not easily discernible, was negligence on the part of the defendant was a question for the jury. See, also, Unglaub v. Farmers Mutual Telephone Co., 39 S. Dak. 355.
We believe that, under the facts as above related, the question of whether or not there was negligence on the paid of the company in maintaining an uncovered guy wire, anchored in the paved way of the alley and two and one-half feet from the outside edge of the paving, cannot be determined as a matter of law, but was an issue for determination by the jury.
The judgment of the lower court is therefore reversed and the cause remanded for further proceedings.
Reversed.