Louisville Home Telephone Co. v. Gasper

123 Ky. 128 | Ky. Ct. App. | 1906

Opinion by

Judge Settle

Affirming.

Appellee, John D. Gasper, sued appellant Louisville Home Telephone Company, A. J. Hressell, and the city of Louisville, in the court below, to recover damages for a personal injury alleged to have been sustained by him through the joint negligence of the defendants. ’It was, in substance, alleged in the petition that appellee, while walking in a public alley adjoining his home in the city of Louisville, was knocked down and crushed by and under a heavy wagon owned and operated by Dressed, which greatly bruised his body, broke his hip, and permanently injured him. That, at the time of receiving his injuries, the appellant Louisville Home Telephone Company had and maintained in the alley mentioned a telephone pole to which it negligently strung and maintained a guy wire running obliquely from the top thereof down to a block in the ground so as to form and cause a dangerous obstruction to pedestrains and vehicles using or passing through the alley, and that the wagon of Dressed, while being driven through the alley by his servant in a negligent manner, ran upon and against appellant’s guy wire, which caused the wagon to be overturned and thrown upon appellee, resulting in his injuries Furthermore, that the city of Louisville consented to the erection of the dangerous obstruction in the alley by appellant telephone company, and knew of its existence at the time appellee was injured, yet negligently suffered it to be then and theretofore maintained. The defendants severally answered, denying the negligence charged, and pleading contributory negligence on the part of appellee, but for which, it was alleged, his injuries would not have been received. The latter, by replying to each answer, denied that he was guilty of contributory negligence in the matter of receiving liis injuries. Thereupon, the case went to trial before s jury, and upon the conclusion of appellee’s evidence each of the defendants asked for a peremptory instruction, which the trial judge refused, and, after the introduction of evidence in behalf of the defendants, nine of the jury returned, with their names attached thereto, the following verdict: “We, the jury, find for the plaintiff in the sum of $2,000, to be assessed as follows: $1,750.00 against the Home Telephone Company, and $250.00 against A. J. Dressell, and the city of Louisville exempt from any damage. We find for. defendant city of Louisville.” Judgment was entered in accordance with the verdict, and appellee filed motion and grounds for a new trial as to the defendants Dressell and city of Louisville, and appellant telephone company also entered motion for a new trial, in support of which numerous grounds were filed.1 Both motions were overruled, but only the telephone company has appealed.

There is but little conflict in the testimony, and it cannot be denied that appellee suffered greatly from his injuries, or that they are of a permanent nature,' and, being an old man, he may be expected to endure yet further suffering from.the fractured hip. No serious objection is made by appellant to the instructions, though it is insisted by its counsel that the jury should have been peremptorily instructed to find for appellant. This contention, however, is based upon the theory that, though appellant may have been negligent in maintaining a guy wire in the manner shown by the evidence, such negligence was not the proximate cause of the .injury to appellee. This contention of appellant therefore involves the real and only question presented for our consideration by the appeal. According to the testimony, appellee’s injuries were .received in the following manner: Having entered the 20-foot alley, he saw a wagon loaded with kindling wood, which was standing on its west line. There were some men with the wagon, and appellee stopped by it and engaged in conversation with them. On the east side of the alley, and nearly opposite the wagon, there was anchored to a block of wood in the ground appellant’s guy wire, which ran at an angle of 45 degrees to the top of a high telephone pole, which was a part of its plant, and also situated in the alley. The- wire was anchored 120 feet north of the mouth of the alley, 18 inches out in the alley, and on account of the sagging of the top of the pole, about 15 inches toward the west, the guy wire was made to hang further out in the alley to the west as it became higher. "While appellee was standing at the wood wagon, a heavy delivery wagon owned by Dressell was rapidly and negligently driven into the alley, taking the east side because of the standing wagon on the west side, and the hub of its right hand wheel collided with the guy wire, which caused the wheel to slide up the wire, and until it overturned the wagon toward the west, throwing it upon appellee, thereby producing his injuries. The evidence also conduced to prove that there are other and safer ways of anchoring wires into the ground than the one adopted by appellant with respect to the pole in the alley. Thus, by a stub (which is a pole or post) placed in and rising about 8 or 10 feet above the ground at the edge of the alley, a guy wire may be so elevated as to remove all danger of collision with vehicles or persons. Yet another way to prevent injury from a guy wire is to inclose it by pipes or covers, or to attach it to the ground so near the edge of the alley as to remove any danger of contact with persons or vehicles using the alley.. Certain it is that a wire three-eighths of aninch thick running from a point in the ground 18 inches out in the alley, and along a fence so near its color as to render the wire practically undiscernable, may, without aid of the imagination, be regarded as an obstruction dangerous to individuals and vehicles passing over or through the alley. At any rate, in view of the foregoing-facts, we are unable to say the finding of the jury that appellant was negligent in thus maintaining its guy wire was unsupported by the evidence.

There can be no question but that a telegraph or telephone company may be held liable for damages to a person injured by its negligence in obstructing a street or highway with its poles or wires. Thus, in Joyce on Electric Law, § 609, it is said: “Where a traveler is injured by collision with a guy wire, negligently placed or maintained by the company, the latter will be liable where the traveler was in the exercise of due care.” In Thompson’s Negligence, § 1233, we find the same doctrine announced in these words: “If a telegraph, telephone, or electric light company so erects its poles, or suspends its wires, as to make the highways dangerous to ordinary travel, and if a traveler, proceeding with ordinary care, comes in contact with its poles or wires so erected or suspended and thereby sustains injuries, he or any other person having a right of action for such injury may recover the resulting damages of the company.” Bevis v. Vanceburg Telephone Co., 121 Ky. 89 S. W. 126, 28 Ky. Law Rep. 142. It is, however, ably argued by counsel for appellant that appellee was injured solely by the wagon falling upon him, and that appellant’s negligence, if any, was too remote to have produced the injury without an intervening cause; therefore such negligence was not the proximate cause of the injury. If appellant was negligent as to the manner in which its guy wire was anchored, and it constituted a dangerous obstruction, that is, one that was likely to result in injury to others from an intervening cause, which though not in fact anticipated by appellant would not have happened but for its earlier negligence, it cannot escape liability, because its negligence would in such case be the approximate cause of the injury. An excellent statement of the law of proximate cause’ may be found in 21 Am. Eng. Ency. of Law (2d Ed.) 490: “It is well settled that the mere fact that there have been intervening causes between the defendant’s negligence and the plaintiff’s injuries is not sufficient in law to relieve the former from liability; that is to say, the plaintiff’s injuries may yet be natural and proximate in law, although between the defendant’s negligence and the injuries other causes, conditions, or agencies may have operated, and, when this is the case, the defendant is liable.' So, the defendant is clearly responsible where the intervening causes, acts, or conditions were set in motion by his earlier negligence, ~or natuYally“'Induced'''“'by- such wrongful act or omission, or even, it is generally held, if the intervening acts or conditions were of a nature, the happening of which was reasonably to have been anticipated, though they may have been acts of the plaintiff himself. An act or omission may yet be negligent and of a nature to charge a defendant with liability, although no injuries would have been sustained but for some intervening cause, if the occurrence of the latter might have been anticipated. Many cases lay down the rule that the intervening negligence of a third person will not relieve the author of an earlier negligent act from liability in damage therefor. A defendant may in fact be liable in negligence, although, by reason of the intervening negligence of a third person, the latter is also liable. But where the negligence of a third person is of an unusual and extraordinary character, interrupting the natural sequence of events, and the defendant’s act or omission alone was not of a nature to produce the injuries, the defendant will not be liable. Or, as the rule has been stated in some cases, if tl intervening act of negligence may be considered the sole cause of the plaintiff’s injury, the author of the earlier negligent act is not liable.” Manifestly, the injury complained of by appellee would not have been inflicted, but for the negligence of the driver of the wagon, but this is not truer than the further fact that the accident would not have occurred, notwithstanding the negligence of the driver, had not the original or primary negligence of appellant operated to bring it about. In other words, appellee was injured'by the immediate negligence of the driver of the wagon, and the primary negligence of appellant; the negligence of the two concurring to cause it, and the injury being-such as the maintainer of the' dangerous obstruction in the alley ought reasonably to have anticipated, as likely to occur from its existence.

“Whoever does a wrongful act is answerable for all the consequences that may ensue in the ordinary and natural course of events, though such consequences be immediately and directly brought about by intervening causes, if such intervening causes were set in motion by the original wrongdoer.” Thompson on Negligence, § 52. “Proximate cause” has been variously defined by different law writers and judges, but perhaps a better definition cannot be found than that given by Thompson, in section 47 of the work, supra: “The proximate cause of an injury is that which in natural and continuous sequences, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” In Black’s Law and Practice (section 21) “proximate cause” is thus defined: “A proximate cause is that cause which naturally led to and which might have been expected to procluce the result. * * * The connection of cause' and effect must be established. It is also a principle well settled that when an injury is caused by two causes concurring to produce the result, for one of which the defendant is responsible, and not for the ■other, the defendant cannot escape responsibility. One is liable for an injury caused by the concurring negligence of himself and another to the same extent as if for one caused entirely by his own negligence.” Whitaker’s Smith on Negligence, p. 27. The rule announced by the foregoing authorities has been approved by this court. Notably in the case of Whiteman & Co. v. Warren, 66 S. W. 609, 23 Ky. Law Rep. 2120. In that case the defendant had left a gutter filled with hot water. A boy traveling the walkway was pushed by another boy into the gutter and hot water and thereby scalded and badly injured. In the opinion, it is said: “If it be true that the injury was the result of the negligence of two persons, appellant (in leaving the gutter filled with hot water), and the boy who jostled appellee, there •might still be a recovery against either without joining the other.”

In order to hold appellant liable it is not necessary to show that it could or should have foreseen the result. In addition to establishing its negligence in maintaining the'dangerous obstruction in the alley, it was only required of appellee to show that the injury to him was the natural, though not the necessary, result of its presence. Wharton on Negligence, § 74; Shearman and Redfield on Negligence 32-38. Thompson on Negligence, § 59; Milwaukee Ry, Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256. To illustrate: Horses frightened in a street or on a highway are liable to run away and inflict injury upon persons or property. So, if the whistle of a¡ locomotive engine be needlessly and wantonly sounded in or near a street or highway and causes ( a team of horses to run away and kill another horse, the owner thereof may recover damages therefor of the railroad company. Billman v. Indianapolis, R. R. Co., 76 Ind. 166, 40 Am. Rep. 230. We do not think the views herein expressed in conflict with Setter’s Adm’r v. City of Maysville, 114 Ky. 60; 69 S. W. 1074, 24 Ky. Law Rep. 828, relied on by appellant. , In that case damages were sought to be recovered of the city of Maysville for the death of the intestate, caused by being run over by an electric car while walking on one of its streets; the charge being that by the negligence of the city in allowing brick and other debris in the street between the track of the railway company and the north side of the street, and in permitting the street railway company to maintain trolley poles along its track and a grade one or two feet higher than the portion of the street on the north side, without erecting barricades between the, street and the trolley track, the vision of pedestrians traveling on the north side was obstructed, and they were forced to travel in a narrow path between the debris and railway track, and that the intestate was killed by a street car while traveling this-path, it being alleged that the negligence of the city in allowing the obstructions along and on the street was the proximate cause of her death. The court, though not disputing the doctrine we have announced, held that the city was not liable on the facts presented, and this decision, we think, was due, as intimated in the opinion, to the fact that it was not alleged or proved by the plaintiff that on the south side of the railway track, which was opposite the path traveled by the intestate, the road was in any wise obstructed, or that tue sidewalk on Second street was not in a suitable condition for the use of the public, from which it might be inferred that the intestate could have walked on the south side of the railway track in safety. Therefore no negligence was shown as against the city, which conld have been the proximate cause of the injury. While other authorities have been cited by appellant’s counsel, we do not find that they are based upon facts analogous to those of this ease, and therefore we do not regard them with such favor as to accept them as against those relied on in the oninion.

Being of opinion that the jury were not without evidence for the conclusion that appellant’s negligence was the proximate cause of appellee’s injuries, and that the instructions properly presented the law of the case, the judgment is affirmed.