Lynchburg Telephone Co. v. Booker

103 Va. 594 | Va. | 1905

Keith, P.,

delivered the opinion of the court.

The defendant in error, a little boy eight years of age, was sitting upon a box on the sidewalk of one of the streets in the city of Lynchburg, when, seeing what he supposed to be a string dangling down through the limbs oí a tree in an adjacent yard, he put out his hand and grasped it. It proved to be an electric wire belonging to the Lynchburg Telephone Company, which had broken and fallen upon a hook of the Lynchburg Traction <fc Light Company, and by that means came in contact with a wire of the latter company heavily charged with electricity. The defendant in error was knocked down, his person burned in several places, and his right hand so injured that the first, second, and third fingers were cut off close to the knuckle joints.

The jury brought in a verdict for $10,000, but the trial court, deeming it excessive, put the defendant in error upon terms, either to accept an abatement of the verdict to $5,000, or have it set aside. The judgment of the court recites that “thereupon the plaintiff, under protest, accepted the said sum of $5,000, and the motion of the defendant is therefore overruled.” To the action of the court in refusing to set aside the verdict, the defendant exceptedj and the case is now before us to review certain rulings made by the trial court.

The first error assigned is to the action of the court permitting the witness, Apperson, to téstify that Freed, the manager of the Lynchburg Telephone Company, after the accident, admitted that the wire with which defendant in error came in contact belonged to the Lynchburg Telephone Company.

It appears'that, shortly after the accident, Apperson, the president of the Lynchburg Traction & Light Company, went to a point at or near the scene of the accident. Mr. Freed, the manager of the Lynchburg Telephone Company, was also there. These men were upon the scene of the accident in the discharge of duties which devolved upon them as the officers of their respective companies; and the answer given to the question was, we think, admissible not as a part of the res gestee, but because made by an officer in the performance of his duty. 2 Cook on Corp. (4th Ed.), sec. 126.

In Morse v. Conn. Riv. R. R. Co., 72 Mass. 450, it is held that in an action against a railroad corporation by a passenger for the loss of his trunk, the admissions of the conductor, baggage- master or station master, as to the manner of the toss, made in answer to inquiries in behalf of the passenger are admissible in evidence against the corporation.

In Lane v. Boston & Albany R. Co., 112 Mass., at page 155, it is held that in an action against a railroad company for the non-delivery of lost freight, the declaration of their freight agent that he thought, perhaps, the Thompsons had got it, made in answer to an inquiry by the consignee, is admissible in evidence against the company; Chief Justice Gray remarking that “the declarations of their freight agent in answer to the plaintiffs’ demand were made in the performance of his duty, and therefore rightly admitted in evidence against the defendants.”

In Toll Bridge Co. v. Betsworth, 30 Conn. 380, the plaintiffs were a corporation owning a toll bridge, through which was a draw for the passage of vessels, the charter requiring them to keep a draw-tender, and to open the draw for vessels desiring to pass through. A general statute required vessels passing through any such draw to warp through, and not to sail through, and imposed a penalty for the violation of the act. The defendant, in passing with his vessel through the draw, which had been opened by the draw-tender for him to pass, sailed through instead of warping through, and, in so doing, was driven against the side of the draw and injured it. In an action brought by the company for the damage, the defendant claimed that the plaintiffs had by long' use licensed vessels to sail through, and offered evidence of declarations made by the draw-tenders at various times when vessels were passing through under sail, that they preferred to have them go through in that manner. It was held, that their admissions were admissible as the declarations of the agents of the company while in the discharge of their duties as such agents.

In the case before us, the manager of the Telephone Company (the general manager of the company, if there be a difference, as he is sometimes spoken of in the evidence) was upon the scene of the accident and investigating the circumstances connected with it. He was speaking with reference to a matter about which he, if any one, had knowledge — that is, whether or not the wires in question were the property of the company of which he was manager — and he made the statement with respect to their ownership while' engaged in the performance of a duty as an officer of the company.

The next assignment of error is to the action of the court in refusing to strike out all the evidence introduced by and on behalf of the plaintiff, on the ground that there is a material variance between the case stated in the declaration and the case which the evidence tends to prove.

The declaration, omitting the recitals and mere formal parts, states “that on the 20th day of October, 1903, by reason of the carelessness and negligence of the said defendant, its agents, and servants, aforesaid, a part of one of its said telephone wires, located in, along, upon, and over said Eleventh street, between Harrison and Wise streets, as aforesaid, at a point on said Eleventh street, between said Harrison and Wise streets, to-wit, between Monroe and Taylor streets, became detached from its proper location upon the defendant’s poles aforesaid, and, by reason of the carelessness and negligence .of the said defendant, its agents and servants aforesaid, came in contact with one or more of the aforesaid wires of the eleclrie railway aforesaid, there located, as aforesaid, and then and there charged, as aforesaid, with a heavy and dangerous current of electricity; and also in contact with the right hand and legs of the said plaintiff, who was then and there in said Eleventh street, at the point aforesaid, and thereby, and by reason of the carelessness and negligence of the said defendant, its agents and servants aforesaid, the heavy and dangerous current of electricity, then and there being upon and passing over the said wires of the said electric railway, was conducted to, against, and through the right hand and legs of the said plaintiff, whereby, and by means whereof, the said plaintiff was greatly shocked, stunned, and rendered insensible, and caused to suffer great bodily pain and anguish, and whereby also the said plaintiff was greatly and painfully burned in and about his legs, and in and about his right hand to such an extent that, it being thereby rendered necessary, the three main fingers (the first, second and third) of the said plaintiff’s said hand were amputated, and he was, and is, thereby rendered permanently maimed and disfigured, and incapacitated for the performance of the ordinary duties of life, and for the performance of manual or clerical labor, and whereby, also, he was caused to suffer great bodily pain and permanent mental anguish and mortification.”

The proof shows that the defendant in error had taken a seat upon a box, and that seeing what he supposed to be a string hanging through the limbs of a tree near the railing, he put his hand through or over the railing, grasped the wire, and was injured. ÜSTow the contention is that that proof constituted a material variance from the averments of the declaration, because it is there stated that the defendant in error was in Eleventh street, while the evidence proves that he was injured by a wire hanging down through a tree and into a yard adjacent to but not in Eleventh street. There is no averment in the declaration as to the precise position of the wire. It is nowhere said that it was in Eleventh street; but it plainly appears that if not in Eleventh street it was in a position of such proximity to Eleventh street as to have inflicted the injury upon this child who was at the time in the street. So that, if the plaintiff in error is to escape liability, it must be not upon the ground of a variance between the allegata and probata, but because for some other reason the proof does not establish its liability as, for instance, that the presence of the wire in the position in which it inflicted the injury was not due to its negligence.

The third assignment of error is to the action of the court in giving certain instructions over the objection-of the plaintiff in error, and in refusing certain instructions asked for by it. These instructions will be found in the statement of the case by the Reporter.

We shall not attempt to discuss all the objections taken to the numerous instructions given and refused in this case. Contenting ourselves with the statement that the instructions given by the court fairly submitted the case to the jury, we shall leave them to speak for themselves, adverting briefly only to a few of the more serious objections urged.

In the petition for an appeal, it is suggested, and it was. urged in argument before the court, that by the testimony of' the defendant in error he was “in unlawful proximity to the-wire in question.” This contention seems to be based upon the idea that while the defendant in error was lawfully in the-street, his hand was unlawfully thrust through, or over the-railing — in other words, that the defendant was injured while-in the commission of a trespass.

In legal contemplation it may be that any unauthorized entry upon the premises of another whose title extends to thecentre of the earth, downward, and without limit upward, by-putting one’s hand through or over a boundary fence, is a trespass. It would, however, certainly seem that the trespass, had reached its vanishing point when such a trespass was committed by a child eight years of age. The owner of the premises would find it difficult to maintain such a defense if he had knowingly permitted so grievous a danger to exist within reach of a public street, and thereby caused an injury to one incapable of contributory negligence. The proof in this case is that the wire which inflicted the injury belonged to the Lynch.burg Telephone Company; that it was a test wire, No. 19':; that it had been broken in divers places; that it had been: broken in the place where the injury occurred for three days-the little boy who was injured had seen it two days before tlm accident — and the Telephone Company had been informed of' its condition. These facts fully warranted the court in giving the jury instruction No. 1.

The objection to the second instruction was yery properly" withdrawn.

The next assignment of error is to the third instruction, the objection to which is stated to be, that it assumes facts which should have been left to the jury. We do not so understand the instruction. Every recital of fact in that instruction we understand to have been left to the determination of the jury upon the evidence.

The fourth instruction was objected to because, as claimed, there is no evidence to sustain it; while, as it appears to us, the evidence fully warrants the jury in finding every fact to> have been proved upon which that instruction is predicated;; and it was the duty of the court to give it if the evidence had. a tendency to prove them.

The fifth instruction is plainly right, as are the seventh,, eighth, and ninth. The tenth seems to us sufficiently favorabletc the plaintiff in error, and is substantially the same as instruction No. 8 asked for by it.

We think, upon the whole ease, that there was nothing prejudicial to the plaintiff in error in the rulings of the court upon-the instructions, and that the case was in all respects fairly submitted to the jury.

With respect to the evidence, we deem it plainly sufficient to warrant the judgment of the court.

The defendant in error aslcs us to review the action of the court in requiring him to remit a part of the verdict upon the penalty of having it set aside. He accepted the verdict, and cannot now he heard to question it.

Hpon the whole case, we think there is no error, and the judgment is affirmed.

Affirmed.