Ahern v. Oregon Tel. & Tel. Co.

• Decision Date: 08 January 1894
• Citation: 35 P. 549,24 Or. 276
• Parties: AHERN v. OREGON TELEPHONE & TELEGRAPH CO.
• Court: Oregon Supreme Court

35 P. 549

24 Or. 276

AHERN v. OREGON TELEPHONE & TELEGRAPH CO.

Supreme Court of Oregon

January 8, 1894

On rehearing. For former report, see 33 P. 403.

LORD, C.J.

The suspended telephone wire, while it was charged with electricity from contact with the electric wire, was not less dangerous than the electric wire itself would have been similarly suspended as to the street. It was this condition of affairs that led the court, in its charge, to refer to electricity generally as a "subtle and dangerous agency," which required the "utmost caution to control." As the telephone wire was liable to become charged with such dangerous agent, and thus to become dangerous to the traveling public, the duty of inspecting and ascertaining the condition of the wires, and whether there was any interference making them more dangerous than they otherwise would be, was necessarily involved. In view of these circumstances, the degree of care imposed was commensurate with the danger. "Due care is a degree of care corresponding to the danger involved." Cooley Torts. It is not the same in all cases. The term is relative, and its application depends on the situation of the parties, and the degree of care and vigilance which the circumstances reasonably impose. Where the danger is great, a high degree of care is necessary, and the failure to observe it is a want of ordinary care under the circumstances. Hence a wire liable to be charged with an agency so dangerous and difficult to manage, while so located, needed to be looked after with that degree of care and vigilance as would guard the public against liability to accident from it. The court then said: "The question is here submitted to you whether it was negligence or not to leave a wire along a public thoroughfare where it might be found in the way of pedestrians, or where it might be liable to be handled and interfered with by boys or by irresponsible persons." It further added: " 'Negligence,' in cases of this kind, means the doing of some act which a cautious and prudent man would not do, or the neglecting to do some act which a cautious and prudent man would not neglect. Applying those definitions to this case, the inquiry to be solved by you is, what did this defendant do that a cautious and prudent man would not have done, in connection with the wire which has been described to you in the testimony, and which is mentioned in the pleadings?" These instructions,...