Bourget v. Public Service Co.

• Decision Date: 02 June 1953
• Citation: 98 N.H. 237,97 A.2d 383
• Parties: BOURGET v. PUBLIC SERVICE CO. BOURGET v. NEW ENGLAND TEL. & TEL. CO.
• Court: New Hampshire Supreme Court

Page 383

97 A.2d 383

98 N.H. 237

BOURGET v. PUBLIC SERVICE CO.

BOURGET v. NEW ENGLAND TEL. & TEL. CO.

Supreme Court of New Hampshire.

June 2, 1953.

Rehearing Denied June 17, 1953.

SYLLABUS BY THE COURT

Laws 1935, c. 100 (Laws 1945, c. 188, pt. 24) does not change the fundamental duty of a utility to so locate its poles, supporting transmission lines, which it is licensed to maintain within the limits of a public highway, that they will not unreasonably interfere with the safe, free and convenient use of the highway for public travel.

The license under which any utility pole is placed is not determinative of the requirements of the public safety in the use of the street but is a grant of permission subject to those requirements.

In an action for injuries sustained as the result of a collision with a utility pole, the fact that such pole had been maintained at the particular location on a busy city street for a long period of time and outside the street curbing and was of the same dark color as other poles in the vicinity were matters to be considered by the jury together with the fact that the pole was located in a dark area at a point where the street appreciably narrowed and not readily seen by the plaintiff driver blinded by headlights of oppositely approaching vehicles on a stormy night, in determining whether the defendants were negligent in the precautions required by the conditions of public travel.

Where actions brought by a parent motor vehicle operator, for injuries sustained by him and for consequential damages on account of his child's injuries, as a result of a collision with a utility pole, were tried with actions brought on behalf of the passenger who was a minor, the jury by returning verdicts for the minor but against the parent, who was found contributorily negligent, did not in effect find that the pole was so placed as to interfere only with the negligent use of the highway by such driver.

Where the Trial Court made it sufficiently clear to the jury that no verdict could be rendered against the defendants without a finding of some degree of fault on their part it did not err in failing to further instruct them that the plaintiff passenger in a motor vehicle could not recover if his driver was solely to blame for the collision with the defendant's utility pole.

An exception involving the propriety of argument to the jury will not be considered in the Supreme Court unless it clearly appears that it was taken to the refusal of the Trial Court to sustain an objection.

The bringing of an action by a minor child passenger through her mother against the father driver of the vehicle which collided with defendant's utility pole was not inconsistent with the maintenance of actions, alleging concurrent negligence, against the defendants.

Testimony concerning the bringing and settling of an action by the mother against the father driver seeking the same consequential damages sought by him in later actions against the defendants was properly excluded on cross-examination when offered on the credibility of the mother and father and the good faith of the child in the actions by the mother in her child's behalf where the mother was not called to testify in support of her husband's due care and the minor child was not a party to either action seeking consequential damages.

The Trial Court did not err as a matter of law in excluding the testimony of a witness familiar with the location of a utility pole with which plaintiff's vehicle collided, as to whether the pole constituted a hazard to vehicles traveling past it on the highway.

A utility which owns and constructs a pole at a particular location within the limits of a highway is charged with the duty to continually maintain it in a proper location (Laws 1945, c. 188, pt. 23 , s. 17) and is not relieved of liability by the removal of its wires therefrom or granting control thereof to another utility.

Case, to recover damages for personal injuries suffered by the plaintiff, Marie Beth Bourget, a minor, when the automobile in which she was a passenger collided with a pole owned by the defendant Telephone Company and used by the defendant Public Service Co. These actions were tried with two others brought by Henry A. Bourget, the father of the plaintiff and driver of the automobile in which she was a passenger, against the same defendants to recover for medical expenses and loss of services of his daughter. Trial by jury, with a view, resulted in a verdict for the plaintiff against both defendants and with a verdict for the defendants in the two actions brought by the father. The exceptions of the defendants to the denial of motions for directed verdicts, to the exclusion of evidence, to portions of the argument of plaintiff's counsel and to the court's charge were transferred by Wescott, J. A former transfer of the case appears in 97 N.H. 193, 84 A.2d 830. Other facts appear in the opinion.

Craig & Craig, Manchester, for plaintiff.

Sulloway, Jones, Hollis & Godfrey, Concord, for defendant Public Service Co. of New Hampshire.

Burns, Calderwood & Bryant, Dover, for defendant New England Tel. & Tel. Co.

GOODNOW, Justice.

The accident in question occurred on the evening of November 19, 1948 when the automobile in which the plaintiff was a passenger was being operated southerly on South Main Street in Manchester and collided with a validly licensed utility pole near the intersection of the south line of Milford Street and the west line of South Main Street. The operator of the automobile was the plaintiff's father. At the time of the accident it was raining heavily. South Main Street is a city street, with an area used for vehicular traffic limited by a curbing and a sidewalk on each side beyond the curb. North of its intersection with Milford Street, the travelled part of South Main Street as marked by the curbs is forth feet in width. South of the intersection it is thirty feet in width. The mouth of Milford Street at its intersection with the west line of South Main Street is approximately one hundred thirty-three feet in width. The narrowing of the travelled area of South Main Street occurs wholly on the west side of the street so that a projection of the west curb line of the street southerly across the Milford Street intersection runs ten feet westerly of the curb which starts south of the intersection. The east side of the pole in question was one foot four inches westerly of the outside edge of the curb on the westerly side of South Main Street. Northerly of the pole, the curb curves around into Milford Street with the distance from the north side of the pole to the outside edge of the curb on the southerly side of Milford Street varying from seven to nine and a half feet. The top of the curb is from four to five inches above the road surface. In the ten foot area west of the curb there is a public sidwalk adjacent to the property line and a narrow strip of land between the sidewalk and the curb in which the pole was located. The negligence of which the plaintiff complained was that the pole in question was improperly located and maintained.

The duty of a utility company to so locate poles, which it is licensed to maintain within the limits of a public highway, that they will not unreasonably interfere with the safe, free and convenient use of the highway for public travel is well established by our decisions in the cases of Hayes v. New England Telephone & Telgraph Company, 86 N.H. 486, 174 A. 49 and Twardosky v. Public Service Company, 95 N.H. 279, 62 A.2d 723. The amendments to P.L. c. 97, under which the Hayes case was decided, made by Laws of 1935, c. 100, did not change this fundamental duty. The broad language of the amending statute providing that 'the location of any * * * pole * * *, when designated by the selectmen' is to be 'conclusive as to the right of the licensee to construct and maintain the same in the place located without liability to others', Laws of 1935, c. 100, § 10, now Laws of 1945, c. 188, pt. 24, § 9, is immediately followed by two exceptions: 'except for negligence in the construction, operation, or maintenance of the same * * * and except as is expressly provided [by this chapter]'. By § 17 of the same chapter (now Laws of 1945, supra, § 17), responsibility of utilities is clearly provided when a validly licensed pole 'has been constructed, maintained, or operated * * * in a negligent manner, or in an improper location'. In support of our opinion that the amendments to P.L. c. 97 were not intended to change the doctrine of the Hayes case, it is significant that this language imposing liability for the 'improper location' of a pole, Hayes v. New England etc., Company supra, 86 N.H. 488, 174 A. 49, was added to § 17 as originally proposed, by the 1935 Legislature. Journal of the House, 1935, p. 824. The license under which any utility pole is placed is not determinative of the requirements of the public safety in the use of the street but is a grant of permission subject to those requirements. Twardosky v. Public Service Company, supra, 95 N.H. 280, 62 A.2d 723.

The fact that the pole in question here was adjacent to the travelled part of a busy city street in contrast to the poles in the Hayes and Twardosky cases which were located beside country roads does not alter the primary duty imposed upon a utility. Nor is the propriety of a pole's location determined as a matter of law solely because it is located in that part of the highway commonly occupied in cities by a sidewalk and such obstructions as traffic lights and signs, hydrants and utility poles, outside of and separated by a curbing from the area used by vehicles. 'The liability for improperly placing a pole in the highway 'arises out of the neglect of the precautions required by the conditions of public travel''. Twardosky v. Public Service Company, supra, 95 N.H. at page 280, 62 A.2d at page 724. Those conditions are to be determined in...