Southwestern Telegraph & Telephone Co. v. Beatty

• Decision Date: 17 October 1896
• Citation: 37 S.W. 570,63 Ark. 65
• Parties: SOUTHWESTERN TELEGRAPH & TELEPHONE COMPANY v. BEATTY
• Court: Arkansas Supreme Court

37 S.W. 570

63 Ark. 65

SOUTHWESTERN TELEGRAPH & TELEPHONE COMPANY v. BEATTY

Supreme Court of Arkansas

October 17, 1896

Appeal from Saline Circuit Court, ALEXANDER M. DUFFIE, Judge.

Judgment reversed and cause remanded.

W. J Terry and S. R. Cockrill for appellant.

1. The evidence did not warrant the verdict. But granting that a brick struck plaintiff, is it not more probable that it was knocked off by persons crowding about the fire-wall, than by the guyed cleat? There are several theories that are as probable as that defendant caused the brick to fall. And if they are equally probable, the proof fails. 57 Ark. 402. Defendant was authorized to stretch its wires as it did. Sand. & H. Diff. secs. 275-7-8. It was not an illegal act. Mark the distinction between doing a legal act in a reasonably careful manner, and doing an illegal act with the greatest care. Cooley. on Torts, 69-70, and note 1; ib. p *572. The liability of electric companies is the same as that of individuals or other companies lawfully using structures in or near the highway. It is not liable for remote injuries. The rule, Causa proxima, non remota, spectatur, applies here. Thompson, Electricity, sec. 72; 50 Ark. 387; Cooley, Torts 69-70; 2 Thompson, Neg. p. 1087, sec. 4. For illustrations see 37 N.E. 773; 4 Daly (N. Y.) 163; Cooley, Torts, p. *572-3; 44 Ga. 251; Ray's Neg. Personal, 110; 86 Pa.St. 153; 2 Thomps. Neg. 1090; 96 Mass. 211; 87 N.Y. 122; 1 Smith, Dam. sec. 29; 30 Iowa 176; 105 U.S. 249; Whart. Neg. 95; 1 Sh. & Redf. Neg. sec. 35; 1 Smith, Neg. sec. 19; 30 Minn. 74; 57 Ark. 16; 53 Pa.St. 436; 104 id. 306; 7 Wall. 52; 160 Mass. 351; 26 C. P. Div. 369. The case "falls under the orinary rule that when the defendant is charged with negligence in the use of a structure which has become defective, it is incumbent on plaintiff to prove that the defect came to the knowledge of defendant, or existed for such length of time that knowledge should be imputed." 64 Iowa 762. In this case there was no proof of a defect.

2. The court's charge is erroneous. (1) The first instruction took from the jury all question as to plaintiff's contributory negligence. Thompson's Law of Electricity, sec. 73; Croswell, Law Relating to Electricity, sec. 254. (2) In the second the jury is told that "if defendant constructed anything, or permitted any construction used by it to become, unsafe or dangerous," it was guilty of negligence; and in the fourth the jury is told that it was defendant's duty to keep the pier safe. Now, that is not the measure of defendant's duty. It was bound only to exercise reasonable care in the construction and maintenance of its lines. Croswell, Law Elec. sec. 234; ib. 236; 160 Mass. 351; 16 Ark. 308. The instructions are inconsistent, which is reversible error. 32 S.W. 500.

3. The fourth and sixth assume facts not in evidence, and are otherwise erroneous. The sixth leaves the jury to infer that if the brick had been loosened by defendant, although not otherwise insecure or liable to fall, defendant was liable for its fall, though it had been pushed or knocked off by persons leaning against or walking upon the wall. 4 Daly, supra.

4. There was no evidence to support an instruction allowing compensation for "outlays in nursing and medicine." 58 Ark. 198.

5. It was error to admit the city ordinance in evidence, and to charge the jury in reference to it. The ordinance was void. 45 Ark. 158-164; Bish. St. Cr. sec. 41; 1 Dill. Mun. Corp. secs. 319-322; Pet. C. C. 122; 1 Paine, 122; Lieber's Herm. 156; 63 Mich. 396; 26 Mich. 221; 49 Md. 217; Horr & Bemis, Mun. Ord. sec. 131. Even if the wires were strung so as to interfere with the work of the fire department, in violation of a valid ordinance, it would still have been necessary to prove that the breach of the ordinance was the proximate cause of the injury, 1 Sh. & Redf. Neg. sec. 27. The purpose of the ordinance was to protect property rights, and to guard the safety of firemen, and they alone can sue for injury. 69 F. 808, 814 (8 Ct. Ct. App.)

6. The court erred in refusing defendant's prayers numbered 7 to 13 inclusive. The thirteenth is sustained by 54 Ark. supra.

7. It was error to admit McKay's testimony as to conversation with plaintiff. 51 Ark. 509.

Blackwood & Williams and Williams & Bradshaw for appellee.

1. Upon the whole case the verdict is right, and must on new trial result in a verdict for plaintiff, with perhaps increased damages; therefore it should be affirmed upon the whole record, as appellee had no right to move for new trial, or to appeal on account of smallness of damages, and has not appealed. Sand. & H. Dig. sec. 5840; 44 Ark. 556; 18 id. 469.

2. The instructions were more favorable to defendant than it was entitled to, and the case was tried upon the low ground of negligence on the part of defendant, when it was entitled to be tried on the high ground that defendant had created a nuisance--set a dead-fall over the high way, and was absolutely responsible. 18 Minn. 324; 10 Am. Rep. 184; Whart. Neg. secs. 826-7-8; 59 Me. 94; Wharf. Neg. sec. 831-2, 840-2; 6 Q. B. 759. The fall of the brick is some evidence of the cleats being improperly placed. Whart. Neg. secs. 841, 842; 4 Har. & C. 403.

3. When the natural consequence of the structure is that ice, snow or water falling on it injures adjacent property or travelers, etc., the owner is liable. Whart. Neg. sec. 843. When one erects a dangerous thing on the property of another, he must guard it, and the fall is prima facie evidence of negligence. 54 Ark. 209; 29 Ala. 302. When a thing, dangerous unless particularly guarded, is left unguarded, the party leaving it is responsible for damages to another thereby produced. Wharton, Neg. secs. 851-5, 861; 91 N.Y. 137; Elliott, Highways, p. 447, 74 N.Y. 266. Whether it was a nuisance per se ab initio, or became so by negligence, the defendant is liable. Wood, Nuisance, p. 129; 67 U.S. 299. For illustrations, see Nelson v. New Bedford, etc., 108 Mass.; 1 Exch. 265; 3 H. L. Cas. 330; Wood, Nuisance, p. 143; 47 Ga. 263; 2 N.Y. 159; Lloyd on Buildings, sec. 77; 51 Cal. 142; 45 Ind. 429; 11 Md. 1. Any act which unnecessarily incommodes the lawful use of a high-way is a nuisance, and is actionable on behalf of one suffering special damages. Lloyd on Building, sec. 222, last clause; 50 N.Y. 679; 1 Exch. 265; 3 Hill, 531; 124 N.Y. 319; 148 Mass. 261; 40 Minn. 127.

4. That it was lawful to string its wires cuts no figure here. The state can never relieve itself of the duty of protecting its citizens, nor grant another the right to injure them, or immunity from liability for injuring them. No matter what the right of franchise, when an injury is done by posts, wires, etc., the corporation is liable in damages to the person injured. Foote & Everett, Law of Corp. 811, 1009 and notes, 1010, 552-3; Webb, Pollock on Torts, pp. 499, 500-1; 39 La. An. 551; 2 So. 395; 72 Cal. 180.

5. The fact that the firemen disturbed the wires does not relieve defendant. If one creates, or by negligence allows, a dangerous thing to obstruct or overhang a highway, he is responsible absolutely ab initio for all that can be foreseen as likely to happen. 16 L. R. A. 43; 41 La. An. 1041; 18 Minn. 324, and cases supra. The master is not excused for furnishing bad appliances to his servant, because the fellow servant precipitated the injury. McKinney, Fellow Servants, p. 84, sec. 31-2; 54 Ark. 292; 56 id. 132; 46 id. 207.

6. The old doctrine of "identification" is exploded (Webb's Pollock, p. 580), and the rule is that where two or more independent persons have between them caused damage, any or all are liable, Ib. 581-2; ib. 508; Elliott' on Ways, p. 631; 38 Wis. 33; 10 Mass. 72; 5 Metc. (Mass.), 205; 52 Barb. (N. Y.), 390; 9 Pa.St. 345; 57 F. 901. Joint or concurrent wrong-doers may be sued jointly or separately. Webb's Pollock, pp. 230-1; 58 Ark. 655; 49 F. 209; 40 id. 631; 14 S.W. 291; 132 U.S. 601; Booth on St. Rys. sec. 363; 33 S.W. 426. See particularly 61 Ark. 381.

7. The duty of defendant in regard to its apparatus is clearly defined in 41 La. An. 1041. See 16 L. R. A. 43; 22 id. 762; 45 Ill.App. 484; 26 L. R. A. Jackson v. Tel. Co.; 54 Ark. 133; 54 Ark. 214; 35 N.E. 1127; 25 L. R. A. 552; 28 id. 596; 14 S.W. 863; 22 L. R. A. 635; 16 id. 545; 19 S.E. 344. See also as to injuries from objects overhanging streets. 1 Thomp. Neg. p. 333, and notes, pp. 343-4-6-7; 2 Dill. Mun. Corp. secs. 1013, 1032-4.

8. Res ipsa loquitur. The falling of a brick or wire on a public street is prima facie evidence of negligence. 57 Ark. 435; 54 id. 209; 61 id. 381; 28 L. R. A. 596.

9. There was no error in admitting McKay's testimony. 1 Gr. Ev. secs. 101, 102, 108.

10. The ordinance was valid. Horr & Bemis, Mun. Ord. secs. 15, 217, 229. The power is expressly granted. Sand. & H. Dig., secs. 5132-3, 5146, 5204, 5208. It was sufficient, definite and express, and 45 Ark. 158 does not apply. In cases of doubt such construction will be given as will carry out the object of legislation. Black on Int. Laws, p. 93, 106; 59 N.Y. 53; 9 Wheat. 380; 7 Col. 285; 20 Ala. 54; 102 Pa.St. 190; 22 Pick. 511; Endlich, Const. Stat., secs. 178, 245; ib. 247-8. For illustrations, see Horr & Bemis, Mun. Ord. sec. 78; 44 Upper Canada Q. B. 641.

11. The court properly refused defendant's instructions on the subject of contributory negligence. Beach, Cont. Neg. p. 17; ib. p. 14, 15, 37; 23 Pa.St. 147; 62 Am. Dec. 323; 2 Ld. Raym. 989; 1 Smith, Lead. Cas. (8 Ed.), 369; 27 Ga. 113, 358; 24 id. 75; 17 id. 136; Whittaker, Smith on Neg. 59, note; ib. 111, 249. Parties rightfully on a highway are not guilty of contributory negligence by being there.

12. Review the objections to instructions given, citing 49 Ark 182, 423; Horr & Bemis, Mun. Ord. secs. 254-5; 32 S.W....