97 Kan. 42 | Kan. | 1916
The opinion of the court was delivered by
Plaintiff had two horses killed by - lightning which he alleged was communicated to them by a telephone wire negligently maintained by defendant in a public highway. He recovered judgment for the value of the horses, and defendant appeals.
The plaintiff is an itinerant horse trader. On May 5, 1913, he was traveling with his family in a covered wagon from Cherryvale to the northern part of the state, and while passing through Franklin county, stopped at the side of a public road for rest and dinner. He had four horses, which he turned out to graze along the highway, having them hobbled to prevent
One defense pleaded in the answer was that the hprses were running at large on the public highway, contrary to the herd law which it is admitted was in force in Franklin county. The principal contention is, that no negligence was shown on the part of defendant which was the proximate cause of the plaintiff’s loss. These defenses were raised by demurrers to the petition and to the evidence, and by a motion for a new trial.
Wholly apart from the question whether plaintiff’s horses were running at large in violation of the statute, we think the judgment can not be permitted to stand. Manifestly, the fact that defendant is a corporation has nothing to do with the question of its liability for the injury. If the wire through which the stroke of lightning was transmitted to the horses had been a private telephone wire maintained at the roadside by a farmer, or had been part of his wire fence along the highway, his liability for plaintiff’s loss would be determined upon precisely the same legal principles. Telephone and telegraph wires carry very light voltage and can ordinarily be handled with as little danger as a fence wire. Either may furnish, as may water pipes, gas mains, etc., a conductor for lightning; but before the plaintiff can recover he must show some negligence of the defendant which was the proximate cause of his loss. The telephone wire was not in itself dangerous to any person using the highway for ordinary purposes of travel, because it was maintained at the side of the road next the hedge, and although allowed to sag close to the ground it interfered
“While one is responsible for such consequences of his fault as are natural and probable, and might therefore be foreseen by ordinary forecast, if his fault happened, to concur with something extraordinary and therefore not likely to be foreseen, he will not be answerable for the extraordinary result.” (Railway Co. v. Columbia, 65 Kan. 390, 398, 69 Pac. 338.)
Where the alleged negligence of defendant merely furnishes a condition or gives rise to an occasion by which the injury is made possible, the defendant’s negligence is regarded as the remote and not the proximate cause. (Railway Co. v. Columbia, supra.) The law makes every person liable for such results of his negligence as ought reasonably to have been foreseen or anticipated by the exercise of ordinary prudence. Two comparatively recent cases illustrate the application of these principles. In Gas Co. v. Carter, 65 Kan. 565, 70 Pac. 635, gas had been negligently allowed to escape into a cellar and from some unknown cause exploded. It was held that the explosion was a probable and natural consequence of permitting large quantities of a highly explosive agency to accumulate in a confined place, and the gas company’s negligence in permitting this was held to be the proximate cause of the accident without any evidence showing how the gas became ignited. In the Dabney case (Gas Co. v. Dabney, 79 Kan. 820, 101 Pac. 488), the negligence was in permitting natural gas to escape from a well, into the open air in the nighttime. An explosion occurred, causing damage, but there was no evidence showing how the gas became ignited. It was said in the opinion that lightning might strike the well and ignite the gas, or some careless person might strike a match near it and cause an explosion, or fire might by other acci
The principle on which the case of Eberhardt v. Telephone Co., 91 Kan, 763, 139, Pac. 416, was decided applies to the case at bar. Plaintiff' was injured by being thrown from a wagon when a team of mules ran away and the wagon struck a guy wire which projected diagonally for a distance of four feet • into a public highway but did not' extend to that portion of the highway graded and used, for travel. Independent qf. whether the telephone company was negligent in maintaining the, guy wire at the side of the road, it was held that this was not the proximate cause of. plaintiff’s injury. In the. opinion it. was said:.
“The party placing the, wire four feet and fo,ur inches from the pole in the grassy embankment north of the traveled portion of the road can not be held to have foreseen that a team might become frightened twenty rods east thereof’and run upon the embankment. Had' the automobile not passed; had it'not scared the team, had'they not pulled out of the road in spite of. the driver’s efforts to keep them in it, no harm would have come from the wire, and to hold the company placing it. there liable, would be to charge-it with the duty to foresee all these most uncommon and unlooked- for conditions,” (p. 765.) •
The telephone wire in the present case was no more dangerous than was the guy wire in that,, case. Had n,ot the plaintiff turned his horses out to graze on the public road at that particular time and place; had not the storm occurred then; had the horses happened to seek shelter at the opposite side of the road; had-not lightning struck when and where it did, the telephone wire Would not have harmed the animals. As it occurred the loss sustained by the plaintiff required the conjunction of conditions and circumstances of an extraordinary nature, which it is unreasonable to say a person of ordinary prudence and foresight should have anticipated.
The judgment is reversed and the cause remanded with direction to enter judgment for the defendant.
