Burch v. Southern Bell Telephone & Telegraph Co.

• Decision Date: 29 March 1937
• Docket Number: 32638
• Parties: BURCH v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. et al
• Court: Mississippi Supreme Court

173 So. 300

178 Miss. 407

BURCH v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO. et al

No. 32638

Supreme Court of Mississippi

March 29, 1937

Division B

1. MASTER AND SERVANT.

Lumber company held not liable for injuries received by employee who was thrown from top of load of baled hay on which he had been riding at request of fellow employee to prevent any of the bales from becoming dislodged when he was caught by telephone wire stretched across private inclosure of dairy farm where lumber company intended to store hay.

2. TELEGRAPHS AND TELEPHONES.

Telephone company which had agreed to make connection at certain point with telephone lines constructed, owned, and maintained by farmers held not liable for injuries received by employee of lumber company who was thrown from top of load of hay on which he had been riding when he was caught by farmer's telephone line stretched across private driveway.

3. TELEGRAPHS AND TELEPHONES.

Only reasonable care is required in maintenance of ordinary telephones which carry no dangerous voltage of electricity.

4. TELEGRAPHS AND TELEPHONES.

Degree of care required in maintenance of telephone lines to be regarded as reasonable must be proportionate to danger that may be reasonably apprehended at particular location.

5. TELEGRAPHS AND TELEPHONES.

Telephone lines crossing a highway must be high enough for usual and ordinary travel in that area, including usual and ordinary commercial uses of highway, but are not required on pain of liability to be high enough for extraordinary travel as to which traveler must keep a lookout (Code 1930, sec. 7061).

6. TELEGRAPHS AND TELEPHONES.

Farmer in erecting and maintaining telephone wire across private way, was not required to anticipate and provide for that full extent of height required of a general public highway as regards gards liability for injuries sustained by employee of lumber company when thrown from top of load on which he was riding when caught by telephone wire.

7. TELEGRAPHS AND TELEPHONES.

Farmer who maintained telephone wire across private driveway held not liable for injuries received by employee of lumber company engaged in transporting baled hay to farm storage house when employee was caught by telephone wire stretched across driveway and thrown from top of load of baled hay on which he was riding.

HON. J F. GUYNES, Judge.

APPEAL from circuit court of Lincoln county HON. J. F. GUYNES Judge.

Suit by Burnell Burch against the Southern Bell Telephone & Telegraph Company and others. From a judgment for the defendants, the plaintiff appeals. Affirmed.

Affirmed.

Green, Green & Jackson, of Jackson, and F. D. Hewitt, of McComb, for appellant.

Directed verdict as to the Southern Bell Telephone & Telegraph Company was erroneous.

The line was used by the Telephone Company to service the other defendants, as subscribers, and they paid the customary rental therefor. Therefore, the line that caused the injury was constructed and used for the joint benefit of the Telephone Company and the other defendants, and thereunder, the Telephone Company is jointly liable for the injury to the plaintiff caused by the wire which was under the control of the Telephone Company, whether it admits it or not.

North Arkansas Tel. Co. v. Peters, 148 S.W. 273, 103 Ark. 564; Western Union Tel. Co. v. Owens, 23 Ga.App. 169, 98 S.E. 116; Ga. Ry. & Elec. Co. v. Tompkins, 138 Ga. 596, 75 S.E. 664; Orr v. Dawson Tel. Co., 133 S.E. 924; Locke v. Pacific Tel. & Tel. Co., 33 P.2d 1077; Eads v. Galt Tel. Co., 199 S.W. 710; Imman v. Home Tel., etc., Co., 105 Wash. 234, 177 P. 670; Rose v. Missouri Tel., etc., Co., 328. Mo. 1009, 43 S.W.2d 562; Miller v. Phipps, 161 Miss. 564, 137 So. 479; Thomas v. Rounds, 161 Miss. 713, 137 So. 894; Westerfield v. Shell Petroleum Corp., 161 Miss. 833, 138 So. 561; II Restatement of the Law of Torts, pages 833, 834, sec. 307.

In the instant case, it is undisputed, nay boasted, that the Telephone Company, after having assumed to use the wire that caused the injury, has made no inspection and attempted no correction of the dangerous condition described, for a period of at least fifteen years.

II A. L. I., Restatement of the Law of Torts, page 807, sec. 300; Nelson v. I. C. R. R. Co., 98 Miss. 295, 53 So. 619, 31 L. R. A. (N. S.) 689; 62 C. J. 1135; 1 Cooley, Torts (3 Ed.), page 346; Sections 605, 606, 7061, 7067, Code of 1930; Cumberland Tel. & Tel. Co. v. Hobart, 89 Miss. 252, 42 So. 349, 119 A. S. R. 702.

That a telephone company is required to make reasonable inspection of the lines served by it so as to comply with the requirement of ordinarily reasonable care, see the case of Dow v. Town of D'Lo and Southern Bell. Tel. & Tel. Co., 152 So. 474.

Persons who mutually operate and control for their mutual benefit a particular instrumentality, are jointly and severally liable for their torts.

North Arkansas Tel. Co. v. Peters, 148, S.W. 273, 103 Ark. 564; Thomas v. Rounds, 161 Miss. 713, 137 So. 894; Levy v. McMullen, 169 Miss. 659, 152 So. 899; Miss. Power & Light Co. v. Smith, 153 So. 379; Miss. Central R. R. Co. v. Roberts, 160 So. 604.

Even though there is no liability as to the Southern Bell Telephone & Telegraph Company, yet the court erroneously directed verdict for other defendants.

The negligence of Mrs. Vernon in failing to maintain the telephone wire so that it would not sag across the driveway at such a low height as to drag those riding on vehicles from such vehicles using said driveway, and the negligence of the Lincoln County Lumber Company, through Jim Evans in directing the plaintiff to ride on top of the hay in a place that Jim Evans and the Lincoin County Lumber Company should have known was dangerous, and in the failure of Jim Evans to warn the plaintiff as he drove under the wire of the danger that there existed, and which he should have seen, are joint acts of negligence for which they both are liable.

Nelson v. I. C. R. R. Co., 98 Miss. 295, 53 So. 619, 31 L. R. A. (N. S.) 689; 62 C. J. 1135; Daniel v. Jackson Infirmary, 163 So. 447; Hooks v. Mills, 101 Miss. 91, 57 So. 545; Miss. Central R. R. Co. v. Mason, 51 Miss. 234; Southern R. R. Co. v. Floyd, 99 Miss. 519, 55 So. 287; Bonelli v. Branciere, 127 Miss. 556, 90 So. 245; Bell v. Southern R. R. Co., 87 Miss. 234, 30 So. 821; Laurel, etc., v. Railroad Co., 87 Miss. 675, 40 So. 259; Gulf, etc., R. R. Co. v. Cole, 101 Miss. 411, 58 So. 208; Patton v. Texas & Pac. R. R., 179 U.S. 660, 45 L.Ed. 363; The Gow Co. v Hunter, 168 So. 264.

As to the liability of Mrs. Vernon we submit that the foregoing authorities are sufficient when considered with this record to support our contention that as to her liability this was a case for the determination of a jury.

We also submit that these authorities are sufficient to establish a prima facie case against Lincoln County Lumber Company if Mr. Jim Evans was the superior employee at the time of the accident. It is undenied that Mr. Evans had the right to direct the plaintiff in this case where to ride, and having directed him to ride in a place that he should have known was dangerous, and in failing to warn of the approaching danger there was presented a case for a jury to say whether the Lincoln County Lumber Company was liable.

Barton Motor Co. v. Bass, 167 Miss. 786, 150 So. 202; G. & M. N. R. Co. v. Brown, 143 Miss. 890, 108 So. 503.

Hugh V. Wall, of Brookhaven, for appellees, Lincoln County Lumber Company, J. F. Vernon and Mrs. J. F. Vernon.

Directed verdict in favor of the defendant J. F. Vernon was proper.

Directed verdict in favor of the Lincoln County Lumber Company was proper.

The burden of proof is on the appellant to show by the testimony that the Lincoln County Lumber Company, by some act or omission, violated a duty encumbered upon it from which the injury followed in natural consequence.

Mitchell v. Chicago R. R. Co., 47 Am. Rep. 566; Wabash Railroad Co. v. Locke, 2 Am. Rep. 193.

We submit that there was no way for the Lincoln County Lumber Company to anticipate that the appellant would be on top of the load of hay and there was no way for it to anticipate that the truck would go under a wire at Oak Hill Farm and there was no way for it to anticipate that the wire would be low enough to contact the appellant and drag him off of the hay and, measuring negligence by what a reasonably prudent person would have anticipated, we submit that there is no negligence shown in this case on the part of the Lincoln County Lumber Company, and if there is no negligence shown, there can be no recovery.

Beatty v. Central Iowa R. R. Co., 58 Iowa 242, 8 Am. & Eng. R. R. Cases, 210; McComb Box Co. v. R. Matt Duck, 174 Miss. 449.

The evidence must establish circumstances or there must be some reasonable inference from the evidence adduced that the injury resulted from the want of some precaution which the appellee, the Lincoln County Lumber Company, ought to have taken, which we submit the evidence in this case did not show or even tend to show.

Hayes v. Michigan R. R. Co., 101 U.S. 228; Metropolitan R. R. Co. v. Jackson, L. R. 3 App. C. 193; 20 R. C. L. 56, sec. 52.

Lincoln County Lumber Company was entitled to directed verdict for the further reason that the appellant and Jim Evans were fellow servants.

2 Words & Phrases (2 Ed.), page 480; Gwin v. Carter, 158 Miss. 196; Russell v. Williams, 168 Miss. 181; Petroleum Iron Works v. Bailey, 124 Miss. 11; Barron Motor Co. v. Bass, 167 Miss. 786; Great Southern Lbr. Co. v. Hamilton, 137 Miss. 55.

There is no liability on the part of Mrs. J. F. Vernon and directed verdict for her was proper.

The owner is not an insurer of persons on the premises even when he has invited them to enter.

20 R. C. L. 56, sec. 52.

There can be no...