122 Minn. 424 | Minn. | 1913
Appeal by defendant from an order denying its alternative motion after verdict in favor of plaintiff for $300.
Tbe complaint charges defendant with negligent construction and maintenance, for several years, of its telephone line along an avenue in St. Paul, whereby its wires came in contact with the branches of valuable shade trees situated on plaintiff’s property and boulevard and destroyed them. Defendant admitted the construction, maintenance, and operation of the line, and denied all other claims.
This principle had been applied most frequently to the trimming
In the present case plaintiff was the owner of the fee in the boulevard upon which its premises abutted, and where defendant erected and maintained its line, subject only to the easement of the public in the same as constituting a part of the street. Souther v. Northwestern Tel. Exch. Co. 118 Minn. 102, 108, 136 N. W. 571. Nor was the planting and maintaining of shade trees on the boulevard in itself unlawful, 'and if defendant unjustifiably invaded any right of plaintiff in this connection, it is liable for the resulting damage. On the •other hand, the court charged that, under the circumstances disclosed, defendant was lawfully upon the street in front of plaintiff’s premises, and had the right to erect its poles and string its lines and occupy the place that it did occupy on the boulevard. This must be taken to be the law of this case, and in order, therefore, to sustain a recovery it must appear that (1) defendant owed plaintiff the particular duty alleged to have been violated; and (2) did in fact violate the same; (3) the breach was the proximate cause of the injury; and (4) damage sustained therefrom. Thompson, Neg. § 3; Street, Foundations of Legal Liability, 93; Sherman & Redfield, Neg. §
The evidence was sufficient, if believed, to warrant a finding by the jury, that defendant’s system, where it passed plaintiff’s premises, was erected on poles 60 feet high, from which were suspended 52 uninsulated wires hung upon five cross-arms, below which a number of wires were encased in a leaden sheath supported by a taut wire fastened to the poles. The wires, unsupported except as stated, passed through and came in contact with plaintiff’s trees, some of which were located within the property line and others on the boulevard, and all of which had been planted and were growing when defendant came upon the latter. Under these circumstances, which existed for several years prior to the alleged claim of loss, the swaying of the wires abraded the bark, thus causing constant loss of sap, which, together with electrical discharges from the wires and the weight of the cable resting on the branches, injured or destroyed the trees. It is true that the testimony concerning injury from the electrical discharges is unsatisfactory, but defendant’s evidence in this regard cannot be held conclusive to the contrary, and the only province of this court is to determine whether the inferences drawn by the jury are sustainable.
Said the court in Evans v. Gas Co. 148 N. Y. 112, 115, 42 N. E. 513, 30 L.R.A. 651, 51 Am. St. 681, which was an action for injury to trees from gas escaping from a main laid in the street: “If we admit the possibility of an inference from the evidence that the injury to plaintiff’s property was from the causes alleged, there is no difficulty in sustaining the recovery upon the principle of law above alluded to,” referring to the rule that defendant “was bound to use its rights and to conduct its operations so as not to inflict injury upon neighboring property.”
It also sufficiently appears that the use of the cable was merely for convenience, and that, if due inspection had been made, the probability of loss would have been discovered, it appearing that in the inspections made the company was unmindful of plaintiff’s interests. Plaintiff was not bound to anticipate that defendant would so conduct its business as either to injure or destroy his property, and no effort
Order affirmed.