Appalachian Power Co v. Wilson

• Decision Date: 17 September 1925
• Parties: APPALACHIAN POWER CO. v. WILSON.
• Court: Virginia Supreme Court

129 S.E. 277

APPALACHIAN POWER CO.

v.WILSON.

Supreme Court of Appeals of Virginia.

Sept. 17, 1925.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]

Burks, J., dissenting.

Error to Circuit Court, Pulaski County.

Action by J. H. Wilson against the Appalachian Power Company. Judgment for plaintiff, and defendant brings error. Affirmed.

John S. Draper, of Pulaski, and Robt. E. Scott, of Richmond, for plaintiff in error.

Gilmer & Wysor, of Pulaski, for defendant in error.

WEST, J. This is a suit by J. H. Wilson against Appalachian Power Company, to recover damages for personal injuries. There was a verdict and judgment for the plaintiff in the sum of $5,500, to which a writ of error was allowed.

The parties will be referred to as plaintiff and defendant, with respect to their positions in the trial court.

On December 23, 1922, J. H. Wilson, the plaintiff, with his family, consisting of himself and wife, a daughter and son-in-law and four small children, was returning from a visit to a neighbor. He was driving a pair of gentle mules to a light surrey, along the Lead Mine public road in Pulaski county. As he came over the top of a long, steep hill, at the foot of which Max creek crosses the road at right angles, at a point in the road about 400 feet from the foot of the hill, the tongue of the surrey, from some unknown cause, became detached from the breast yoke and fell to the ground. The mule on the right jumped over on the left side of the tongue when it dropped to the ground. The surrey proceeded down the hill, but Wilson succeeded in keeping it and the mules in the road until he reached a point 79 feet from the foot of the hill, where the surrey tongue struck the end of a chestnut log, or pole, lying in the usable and used part of the road, within 18 inches of the wagon tracks at its upper, and within 2 feet of it at its lower, end. When the end of the tongue, about 2 feet of which had been broken off further up the hill, struck the end of the pole, the surrey turned over, threw all the occupants out, and seriously and permanently injured Wilson about his hip.

The chestnut pole, which was 12 feet long and 9 inches in diameter, was the property of the Appalachian Power Company, and was sold to it by John G. Graham, who, four months before the accident, placed the pole in the place it was at the time of the accident. The company paid him for the pole a few weeks after it was delivered in the road and it remained there for several months, when it was used by the power company, as was intended, as a brace or stub pole on the company's line, near the place of the accident.

Prom the place the accident occurred to the creek, the road was nearly straight, not so steep, and much smoother than it was from the place the tongue dropped to the place of the accident.

The wheels of the surrey had rubber tires. The surrey had no brakes and it was not customary in that section to use brakes on that kind of vehicle. The harness was in good condition and was supplied with choke straps to hold the collars down, which made breeching unnecessary.

At the time the upset occurred, the mules broke away from the surrey and one of the straps from the breast yoke to the collar and one end of a trace were broken, but neither of these breaks occurred before the surry was overturned.

The foregoing is a brief statement of the facts from the standpoint of the plaintiff. The evidence will be further referred to in the course of this opinion.

The defendants assign as error the action of the court in overruling the demurrer to the declaration, giving and refusing instructions, refusing to set aside the verdict of the jury as contrary to the law and the evidence and without evidence to support it, and in refusing to enter judgment for the defendant.

In disposing of these assignments, it will be necessary to consider three questions: (a) Defendant's negligence; (b) plaintiff's contributory negligence; and (c) the proximate cause of the injury.

It is not contended that the defendant's duty required it to keep the road free from obstructions, but to refrain from obstructing the road.

A municipality has discharged its full duty to the public when it exercises proper care to provide and maintain a reasonably safe road of a reasonably safe width for public travel. But the law forbids any person, or corporation, to place or maintain any dangerous obstruction in any portion of a road which has been dedicated to and is being used for public travel.

The author, in Elliott on Roads (2d Ed.) §§ 644 and 645, states the law as to the duty and liability of a private person and a municipal corporation, respectively, where an obstruction is maintained in a public highway, as follows:

"Any unauthorized obstruction which unnecessarily impedes or incommodes the lawful use of a highway is a public nuisance, at com-mon law. Thus it is a nuisance to place logs in a highway where they are not needed in repairing or improving it, even though they are placed at the side of the traveled path. So it is a nuisance to erect a gate or a fence across a highway, to construct a building thereon, or to cut a ditch or millrace across it, without bridging the same or otherwise restoring the way to its former safe and convenient condition so as not to impede or endanger travel. Public highways belong, from side to side and end to end, to the public, and any permanent structure or purpresture which materially encroaches upon a public street and impedes travel, is a nuisance per se, and may be abated, notwithstanding space is left for the passage of the public."

The court in Williams v. San Francisco, & N. W. R. Co. 6 Cal. App. 715, 93 P. 122, lays down the doctrine that—

"No one has any lawful right to maintain an obstruction * * * of any character or nature upon a public highway, or road laid out for and dedicated to the purpose of public travel."

Proceeding further, the court, discussing the apparent conflict of views in highway cases, says:

"A careful examination, analysis, and comparison of them as to the facts will, we think, show that, generally speaking, whatever apparent difference there may be in the conclusions reached is founded upon a distinction based upon the measure of liability resting upon a town or county, charged with the duty of maintaining public highways, and that attaching to an individual or private corporation, where damage results from a defect in such highways through the fault or default of the one or the other. For illustration, it has been held that the duty of the public authorities is fully discharged when the traveled portion of the road—that part which has been graveled, turnpiked, or otherwise prepared for the purposes of the customary travel—is kept and maintained in proper repair and in such shape as to admit of the usual, ordinary, and customary use. And while, as between the town or county, or public authorities having supervision of public highways, and the traveler, the latter will leave the portion of the road laid out and prepared for the customary use and travel and go upon and use the unprepared and customarily unused part at his own risk, he is nevertheless entitled to the unobstructed and uninterrupted use of the entire width of the highway as against the unlawful acts of other persons, either real or artificial."

The Maine court, in Dickey v. Maine Telephone Co., 46 Me. 485, states the law thus:

"But the right of travelers to use any part of a highway, if they see fit, is not restricted by the limitation of the liability of the town in case of accident. A person may go out of the beaten track at his own risk, as between himself and the town, and yet be entitled to protection against the unlawful acts of other persons or corporations. Any part of the highway may be used by the traveler, and in such direction as may auit his convenience or taste [citing Stinson v. Gardiner, 42 Me. 248, 66 Am. Dec. 281].

"No private person has a right to place or cause any obstruction which interferes with this right on any part of the highway within its exterior limits. The extent of the liability of the town is no measure for such private person's liability. If the owner of the fee in the land, or any other person, should dig a pit, or stretch a cord, or place a pile of stones on the highway near the outer limit, and at a considerable distance from the traveled way, and a traveler passing, using due care, should be injured thereby, it would be no sufficient answer, to his claim for damages, to aver and prove that, under the circumstances, the town was not liable. The duty of the town is to perform a positive act in the preparation and preservation of a sufficient traveled way. The duty of others is to abstain from doing any act by which any part of the highway would become more dangerous to the traveler than in a state of nature, or than in the state in which the town has left it."

Perkins v. Fayette, 68 Me. 152, 28 Am. Rep. 84; Sutphen v. North Hempstead, 80 Hun, 409, 30 N. Y. S. 128; Wilson v. Granby, 47 Conn. 59, 36 Am. Rep. 51, cited and relied on by the defendant, all hold, in substance, that a town is not required to keep its streets passable and in order for their entire located width and length, but do not in any way sustain the contention that it is not negligence for an individual or corporation to place and permit an obstruction to remain in the public highway so long as there is ample room for the traveling public to pass.

While there is some conflict in the testimony as to the exact location of the pole, there is ample evidence to warrant the finding that the end of the pole was lying just 18 inches from the wheel track in the used portion of the road. The contention of the defendant that there is no evidence that the defendant either placed the pole in the road, or permitted it to remain where it was placed after it knew or ought to have known that it was so placed, is without...