103 Ark. 564 | Ark. | 1912
(after stating the facts). The principal contention made by counsel for the telephone company is that the company did not own or control the telephone wire which injured the plaintiff, and was therefore not liable to him for any injury received by him on account of its negligent construction and maintenance, This question has given us the gravest concern. Counsel for the defendant have not cited us to any cases applicable to the peculiar facts of this case, and, after a somewhat careful search for authorities bearing on the subject, we have not been able to find any.
The evidence in the case shows that, by agreement between the defendants, Stuckey constructed a telephone line from his residence in the country to a point at the city limits, and in consideration therefor the telephone company connected his wire with its city exchange, installed a telephone in his residence, and gave him telephone service at the same rate it gave its city subscribers. The line constructed by him was used by the telephone company to serve Stuckey at an agreed rental, and was used for no other purpose. When the line would get out of fix, the company at the request of Stuckey would send one of its servants out to fix it and would charge the expense to him.
Under these facts and circumstances, we are of the opinion that the telephone line was constructed by Stuckey for the mutual benefit and use of himself and the telephone company. The line was used by the telephone company to serve Stuckey as one of its subscribers, and he paid the customary rental therefor. The telephone wire which injured the plaintiff was constructed and used for the joint benefit of the telephone company and Stuckey, and it can not therefore be said that there is no evidence tending to show that the telephone wire which injured the plaintiff was not under the control of the •defendant telephone company.
Telephone companies must not only exercise reasonable •care in the original location and construction of their lines, but must maintain them in such manner as to prevent injuries to persons using the highway over which they are constructed; and, on a failure to do so whereby injury arises, they will be liable for all injuries resulting from such breach of duty. Jones on Telegraph & Telephone Companies, § § 185-189 Jacks v. Reaves, 78 Ark. 426.
The testimony shows that neither the telephone company nor the defendant Stuckey ever made any inspection of the line in question, and it had been in use for several years. The plaintiff testifies that he did not know that the wire was down, and at the time he was injured the night was dark and cloudy so that he could not see it. This evidence was sufficient upon which to base a finding by the jury that the defendant was negligent, and that the plaintiff was not guilty of contributory negligence.
The instructions given by the court fairly'submitted these issues to the jury, and also the additional question whether the telephone company controlled and operated the line which injured the plaintiff. The finding of the jury was in favor of the plaintiff, and we are of the opinion that the testimony was sufficient to support the verdict. No objection was made by the defendant Stuckey to any of the instructions given by the court, and the only reason assigned by him why the judgment should be reversed is that he should not have been sued in the same action with the telephone company.
As we have already seen, the wire which injured the plaintiff was constructed by Stuckey and owned by him; but was, operated by the telephone company for the joint use and benefit of itself and Stuckey upon an agreement to do so. Hence they were joint tort feasors, and were properly joined in the action.
The judgment will be affirmed.
