Alpine Telephone Corporation v. McCall

• Decision Date: 15 November 1944
• Docket Number: No. A-138.,A-138.
• Citation: 184 S.W.2d 830
• Parties: ALPINE TELEPHONE CORPORATION v. McCALL et al.
• Court: Texas Supreme Court

184 S.W.2d 830

ALPINE TELEPHONE CORPORATION v. McCALL et al.

No. A-138.

Supreme Court of Texas.

November 15, 1944.

Dehearing Denied February 7, 1945.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by W. D. McCall and another against the Alpine Telephone Corporation to recover for injuries sustained as result

of defendant's negligence. To review a judgment of the Court of Civil Appeals, 183 S.W.2d 205, which reversed a judgment for defendant and remanded the case, the defendant brings error.

Judgment of Court of Civil Appeals affirmed.

Robertson, Leachman, Payne, Gardere & Lancaster and Henry D. Akin, all of Dallas, for plaintiff in error.

Frank O. Ray, of Alpine, and Morriss & Morriss, of San Antonio, for defendant in error.

SHARP, Justice.

This suit was brought by W. D. McCall, both individually and as next friend, against the Alpine Telephone Corporation, for personal injuries sustained by his minor son, Earl McCall. The trial court rendered judgment for the defendant upon the answers of a jury to special issues. Upon appeal, the Court of Civil Appeals reversed the judgment of the trial court and remanded the cause. 183 S.W.2d 205. We refer to the opinion of the Court of Civil Appeals for a more detailed statement of the case and the issues raised and determined therein.

On the evening of the accident which resulted in the injuries to Earl McCall, he and a companion were returning to their homes from a carnival in the eastern part of the City of Alpine. When an automobile driven by Oscar Moses approached the boys, they solicited a ride. Since three other persons besides Moses and his wife were in the car, the boys got on the running boards, young McCall on the right side and his companion on the left. Soon after picking up the boys, Moses turned into Holland Avenue, a main thoroughfare running east and west, and proceeded west along the right side of that street at a speed of from ten to fifteen miles per hour. An automobile approached from the west and swerved to its left, momentarily blinding Moses and causing him to turn to the right. When he did so, his automobile struck a glancing blow on a telephone pole belonging to petitioner, causing serious injuries to young McCall.

This suit was brought on the theory that the installation or maintenance of the telephone pole in the place in which it was maintained was negligence on the part of petitioner. At the close of the evidence respondents excepted to the submission of the issue of petitioner's negligence to the jury, on the ground that petitioner was chargeable with negligence per se, because the installation and maintenance of the telephone pole in question violated Article 1416, Revised Civil Statutes, Article 784, Penal Code, and an ordinance of the City of Alpine which granted a franchise to S. G. Smith, predecessor in interest of the petitioner.

In answer to special issues the jury found as follows: To Special Issue No. 1, that the petitioner was not negligent in maintaining the telephone pole complained of at the place in question; to Special Issue No. 2, that such negligence, if any, was not the proximate cause of Earl McCall's injuries; to Special Issue No. 7, that the accident was not an unavoidable accident; to Special Issue No. 9, that the way and manner in which the eastbound automobile was being driven immediately prior to the accident constituted and was the sole proximate cause of the accident; to Special Issue No. 11, that Earl McCall's riding on the right-hand running board of the automobile being driven by Oscar Moses was negligence, and that such negligence proximately caused, or proximately contributed to cause, the accident in question; to Special Issue No. 12, that Earl McCall's riding on the right-hand running board of the Moses automobile, with his back turned to the north, was negligence, and that such negligence proximately caused, or proximately contributed to cause, the accident in question.

Respondent objected to Special Issue No. 1 on the ground that the issue submitted the negligence of petitioner, when the proof established such negligence beyond issue. The Court of Civil Appeals held that the objection was sufficiently specific to call the trial court's attention to the fact that such negligence was shown, and that the case should be reversed, unless, as a matter of law, it appears that a verdict should have been instructed in favor of petitioner. The Court of Civil Appeals correctly held that the judgment for petitioner rests solely on the answer of the jury to Special Issue No. 1 that petitioner was not negligent in maintaining the telephone pole.

Petitioner is a local telephone company, and therefore can derive no right to use the streets from Article 1416, Vernon's Annotated Civil Statutes. City of Brownwood v. Brown Tel. & Tel. Co., 106 Tex. 114, 157 S.W. 1163; Athens Telephone Co. v. City of Athens, Tex.Civ.App., 163 S.W. 371, writ refused; Athens Telephone Co. v. City of Athens, Tex.Civ.App., 182 S.W. 42, writ refused; Fink v. City of Clarendon, Tex.Civ.App., 282 S.W. 912; Texas Telephone Co. v. City of Mart, Tex. Civ.App., 226 S.W. 497.

In 1923 an ordinance was enacted by the City of Alpine granting a franchise to S. G. Smith to operate a telephone exchange in that city. The petitioner purchased this franchise at some time before the accident, and at all material times has operated the telephone system in Alpine. Section II of the ordinance reads as follows:

"All poles of the said telephone lines shall and must be placed on the outer edge of the sidewalks next the curb line inside the curb stone, unless otherwise designated by the City Commission, or other person under its direction, and shall be at all times so placed and maintained as to conform with the reasonable rules and regulations of the City Commission of the said City of Alpine, Texas; provided, however, that no poles shall be placed in the driveway of any street or alley, nor in such manner as to incommode public travel on such streets or alleys; and provided further all poles located in the business portion of the said City shall be not less than thirty feet in length; and all poles shall be of good substantial quality."

The evidence does not show just when the pole was erected, but it has been in the same location for many years. It is undisputed that the pole is on the street side of the curb stone. Petitioner asserts the fact to be that when the pole was erected, there was no curb stone in that particular part of the street, and that thereafter the curb stone was built so as to angle inside the pole. Thus petitioner contends that the pole was not placed outside the curb stone, but that the curb stone was placed so as to leave the pole between the curb stone and the street.

The provisions of the ordinance are, in terms, directed only at the placing of poles in the forbidden areas. However, it can not reasonably be construed to prohibit the placing, and not the maintaining. Such a construction would throw a cloak of legality over all poles which were placed in accordance with the terms of the ordinance, even though subsequent widening or changing of the course of the street left them in the traveled way.

It is to be noted that the ordinance provides that "no poles shall be placed in the driveway of any street or alley." Even though there was a strip along the side of the street that was not paved, and some evidence that the greater part of the traffic on the street kept to the pavement, the evidence shows without dispute that the unpaved portion of the street was smooth and fit for travel. Under these circumstances, it can not be said that this particular portion of the street was not part of the driveway of the street. The petitioner's contention that there is no showing that the curb line of the street is at the same place as the curb stone is overruled. The testimony shows that the abutting landowner either constructed the curb stone or had it constructed. The building of the curb and the long use of the street are at least sufficient to raise a presumption of dedication. Elliott on Roads and Streets, 4th Ed., ...