Bevis v. Vanceburg Telephone Co.

• Decision Date: 10 October 1905
• Citation: 121 Ky. 177,89 S.W. 126
• Parties: BEVIS v. VANCEBURG TELEPHONE CO. et al.
• Court: Kentucky Court of Appeals

89 S.W. 126

121 Ky. 177

BEVIS v. VANCEBURG TELEPHONE CO. et al.

Court of Appeals of Kentucky.

October 10, 1905

Appeal from Circuit Court, Lewis County.

"To be officially reported."

Action by Fanny Bevis against the Vanceburg Telephone Company and another. From a judgment in favor of defendants, plaintiff appeals. Reversed.

R. D Wilson, T. R. Phister, W. E. Darragh, and A. D. Cole, for appellant.

W. C Halbert, W. B. Pugh, and S. J. Pugh, for appellees.

SETTLE J.

As appellant, Fanny Bevis, in company with Miss Warring, was driving along the public highway in the buggy of the latter from Union Church to the village of Garrison, in Lewis county, the buggy was overturned by coming in collision with a telephone pole; the occupants thrown out, and appellant seriously injured. She brought suit in the circuit court against appellees, the Vanceburg Telephone Company and B. A Bonniville, to recover of them damages for the injuries thus sustained by her, upon the ground, as set forth in her petition, that the telephone pole, which caused her injuries and was owned by appellee telephone company, had been negligently and without right erected by appellees in the public highway, and was by them wrongfully and negligently continued and maintained therein, in violation of the rights of the traveling public, and that as thus located and maintained the telephone pole greatly interfered with the use of the public road by persons traveling the same, endangered their safety, and by reason thereof was and is a common nuisance. The answer of appellees traversed the affirmative allegations of the petition, and in addition averted that the telephone pole was erected and maintained in the public road by permission of the Lewis county court, and under the authority conferred by section 4679a, Ky. St. 1903, and further, that appellant's injuries were caused solely by her own negligence, or that of her traveling companion, Miss Warring. Upon the trial of the case the lower court at the conclusion of appellant's evidence peremptorily instructed the jury to find for appellees, which they accordingly did, following which judgment was entered dismissing the action, and of this judgment and the refusal of the lower court to grant her a new trial appellant now complains.

It appears from the bill of evidence that appellant, who is a teacher, on the evening of receiving her injuries attended a teacher's meeting at Union Church, and at its close was invited by Miss Warring to ride with her in her buggy to Garrison, which invitation she accepted. They left the church about 10 o'clock in the evening. The night was dark, and as they were driving along at a reasonable rate of speed the buggy struck the telephone pole, with the result already stated. The pole was set in the road or traveled way from 2 1/2 to 3 1/2 feet from the side or edge of the road; and as according to the weight of the evidence, the road at that point was only 20 feet wide, the telephone pole left about 16 feet of the traveled way free for vehicles. On the opposite side of the road, and a little north of the pole, stood a large oak tree. Between the pole and fence on the west side of the road was a space of about 7 feet, including a low place or shallow ditch, which was frequently used by horsemen in traveling the highway. It is not altogether clear whether, at the time of the collision of the buggy with the telephone pole, the horse was trying to pass between the pole and the adjacent fence or not, though such was probably the case. It is conceded in argument that the peremptory instruction was...