84 N.J.L. 747 | N.J. | 1913
The opinion of the court was delivered by
The evidence fully justified the finding of the jury that the decedent was not guilty of contributory negligence and that he came to his death as the result of someone’s negligence in the failure to “inspect” the rotten pole upon which his duties in the service of the city required him to work. The only questions raised by the appeal requiring consideration, therefore, result from the refusal to nonsuit and to direct a verdict in favor of the two defendants, respectively, and from the portion of the charge hereinafter referred to.
It is, of course, the duty of any one owning or maintaining a telephone pole in a public highway to use due diligence to prevent its becoming so weakened by decay as to be in danger of falling and injuring anyone lawfully upon the highway or
A different question arises, however, where, as in this case, it was not one of the general public passing along the highway, or upon' adjacent property, that was injured, but a lineman in the employ of the city, who climbed the pole and whose superimposed weight at its top doubtless was the immediate occasion of its giving away. Under such circumstances and in this case the inquiry becomes one as to the existence and nature of an invitation or permission from these defendants, or one of them, to the lineman to climb'this pole. If he did it without invitation from'them and was a mere volunteer or trespasser, of course, they (not having wantonly nor willfully injured him) cannot be held liable. Delaware, Lackawanna, and Western Railroad Co. v. Reich, 32 Vroom 635. So, if he were a mere licensee, acting without invitation or right, except by virtue of a permission given without interest in or consideration, financially or otherwise, moving to the one who gave it, but for the sole accommodation of the licensee, no liability arises. Fitzpatrick v. Glass Manufacturing Co., Id. 378; 29 Cyc. 442.
If, however, he was there upon an invitation, expressed or implied, to go there by the way and at the time he did go, the parties issuing the invitation were in duty bound to use reasonable care to see that so far as that way was their way, it was reasonably safe for him to use. Phillips v. Library Company, 26 Vroom 309, and cases therein discussed.
This doctrine, which is- established by abundance of authority, leads to the inevitable conclusion that where a telephone company has a pole in a public highway, as a part of its- telephone system, under a franchise from the municipality upon the condition that it maintain such pole not only for its own use but also for the use of the municipality, there is a clear invitation by such company to the appropriate employes of the municipality to go upon such pole to the extent usual and necessary for its use by the municipality in the manner contemplated. Under such circumstances the city’s lineman is neither a trespasser nor a licensee. He is
It is contended by the defendant, the New York Telephone Company, however, that there was no invitation issued by it because it was not the owner of the pole, and, as it claims, had no right to remove or replace it. The answer to this contention is that the company had no right to string its wires on Jersey avenue at all, except by virtue of a grant by ordinance from the city of Jersey City, which ordinance, in consideration of the grant, required that the city also should have the right to string its fire and police alarm wires upon the “poles of said company, now or hereafter erected.” The language of this ordinance is significant. It does not say “the poles belonging to said company,” nor does it say “the poles which said company has heretofore erected or shall hereafter erect.” All that it specifies is that the city may use “the poles of said company,” namely, the poles which shall form a part of the ekercise of the franchise granted to maintain and operate a telephone line on Jersey avenue. If the company chose to carry out its franchise by using poles of some other company, or by using old abandoned poles which it found in the sireet, that was its affair. For the purposes of this provision, however, such poles, so incorporated into the exercise of the franchise granted it under the condition in question, became “the poles of said company” and were entitled to be so treated by the city making the grant. The grant of the franchise nowhere expressly authorizes the company to use another company’s poles in exercising the franchise. If it had done so it would doubtless have stipulated for the privilege in question on the poles so used and for the
It is claimed that this view is contrary to the decision of the Supreme Court in Telephone Company v. Speicher, 30 Vroom 23, but we think not. It is true that the opinion in that case, while conceding the probable existence of an invitation for the use of its own poles under such a stipulation in the franchise of a company, suggested, obiter, a doubt of the existence of such an invitation where the poles of another company were used, but the point actually decided and so expressed in the opinion in that case was, that conceding that such an invitation to use such other company’s poles did exist, it did not extend to the use, in carrying a lineman’s weight, of a cross-bar on the pole, which was obviously never intended for any such use.
We think, therefore, that as to the New York Telephone Company, the motions for a nonsuit and for the direction of a verdict in favor of the defendant were properly refused, and that no errors appear in the charge of the learned trial judge with reference to the'liability of that company.
A different situation, however, develops as to the other defendant, the Hudson Telephone Company. Whether it
The judgment against the defendant, the New York Telephone Company, is therefore affirmed, with costs, and the judgment against the defendant, the Hudson Telephone Company, is reversed and a venire de novo awarded as to that defendant only.
The following was the vote of the court in the case against the New York Telephone Company:
For aifinnance — The Chancellor, Chief Justice, Garrison, Swayze, Trenciiard, Parker, Yooriiees, Kaliscii, BoGERT, YREDENBU liG H, CONGDON, WHITE, HEPPENI-IEIMER, JJ. 13.
For reversal — Hone.
For affirmance— -Hone.
For reversal — The Chancellor, Chief Justice, Garrison, Swayze, Trenchard, Parker, Voori-iees, Kalisch, Bogert, Vredenrurgii, Congdon, White, IIeppenheimer, JJ. 13.