Bentley v. Missouri & Kansas Telephone Co.

• Decision Date: 07 February 1910
• Court: Missouri Court of Appeals
• Parties: BENTLEY v. MISSOURI & KANSAS TELEPHONE CO.

125 S.W. 533

142 Mo. App. 215

BENTLEY v. MISSOURI & KANSAS TELEPHONE CO.

Kansas City Court of Appeals. Missouri.

February 7, 1910.

Rehearing Denied February 21, 1910.

1. TELEGRAPHS AND TELEPHONES (§ 15)— MAINTENANCE — INJURIES FROM — USE OF STREETS.

Pedestrians are not ordinarily confined to street crossings, but may cross the street in the middle of the block, and a telephone company, erecting its poles and brace wires in a

parkway of a public street, between the sidewalk and curb, is bound to anticipate that the parkway might be used by pedestrians in crossing the street, and, if it negligently maintains guy wires in such a manner as an ordinarily prudent and careful person would not do, is liable for injuries of which they are the proximate cause.

2. TELEGRAPHS AND TELEPHONES (§ 15)— MAINTENANCE — PROXIMATE CAUSE OF INJURY.

Where a plaintiff, who was injured by coming in contact with a telephone guy wire, maintained on the parkway in a street between the sidewalk and the curb, as she was crossing the street, alleged negligence in the telephone company in maintaining this small wire so near the ground with no guard, so that it would not be seen in the nighttime, her testimony that it was so dark that she could not see a telephone, pole two feet away showed that the fact of the wire being small was not the proximate cause of her injury, as she could not have seen it under any condition, and bars her recovery.

Appeal from Circuit Court, Jackson County; Daniel H. Cecil, Judge.

Action by Emeline M. Bentley against the Missouri & Kansas Telephone Company. From a judgment for plaintiff, defendant appeals. Reversed.

Battle McArdle and Gleed, Hunt, Palmer & Gleed, for appellant. L. A. Laughlin, for respondent.

JOHNSON, J.

This suit is for damages for personal injuries alleged to have been caused by the negligence of defendant. Plaintiff prevailed in the trial court, where she recovered a judgment for $1,200. The injury occurred between 7 and 8 o'clock in the evening of December 4, 1907, on Michigan street, a public thoroughfare in Kansas City. Plaintiff, a married woman, went on an errand to a neighbor's house, and, accompanied by her son, eight years old, started to return home. She walked along the sidewalk on the east side of Michigan street, between Fifteenth and Sixteenth streets. To avoid passing by some vacant lots, she concluded to cross the street in the middle of the block. She was in a hurry and a little afraid, and as she started to cross broke into a run. The street was paved, and there was a parkway between the sidewalk and the curbing. Under permission from the city, defendant maintained a telephone line along this parkway, and one of the poles of this line was near the place where plaintiff attempted to cross. A guy wire, composed of several wires twisted together, ran from the top of the pole at an angle of about 45 degrees to an anchor buried in the parkway. Plaintiff was injured by running against this guy wire, which, owing to the darkness, she did not and could not see. Plaintiff states she was not very familiar with the locality, that she did not know of the presence of the wire, and that it was so dark she could not even see the pole, although she passed within a few feet of it.

The petition charges "that defendant was careless and negligent in erecting and thereafter maintaining said guy wire, inasmuch as said wire was so small as to be invisible after dark, making it a dangerous obstruction, so that passers-by on the street would trip over it." It is the theory of plaintiff that it was negligence to string an inconspicuous wire in the parkway of a public street, where it might prove a snare to pedestrians using the parkway, or who tried to cross the street at that place, and that, in the due observance of care, defendant either should have attached the wire to a stub pole eight or ten feet long, and set at the proper angle, or else should have incased the lower end of the wire with pipe or boxing, so that people might have warning of the existence of the obstruction.

Defendant argues that, since it had the...