Burroughs v. Pacific Telephone & Telegraph Co.

• Decision Date: 27 November 1923
• Citation: 109 Or. 404,220 P. 152
• Parties: BURROUGHS v. PACIFIC TELEPHONE & TELEGRAPH CO.
• Court: Oregon Supreme Court

220 P. 152

109 Or. 404

BURROUGHS v. PACIFIC TELEPHONE & TELEGRAPH CO.

Supreme Court of Oregon

November 27, 1923

Department 2.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by George W. Burroughs, by Bert H. Burroughs, his guardian ad litem, against the Pacific Telephone & Telegraph Company. Judgment for plaintiff and defendant appeals. Affirmed.

This action was instituted by the plaintiff, an infant of the age of six years, by his guardian ad litem, to recover damages averred to have resulted by reason of the defendant's negligence. Among other things, it is alleged, in paragraph IV, that--

"Defendant through its employees * * * placed a telephone pole on a declivity or slanting ground near Fourth and Porter Streets in said city (Portland, Oregon)."

In paragraph V it is averred:

"That shortly after placing said telephone pole as aforesaid, the above-named George W. Burroughs, a minor of the age of approximately six years, sat on said telephone pole, when the same started in motion, rolling over and on said George W. Burroughs, bringing about the injuries hereinafter designated."

Paragraph VI reads:

"* * * That said defendant carelessly and negligently placed said pole on a hill or declivity, where children were playing and were apt to come in contact with the same; that said defendant carelessly and negligently failed to block or brace said pole so it would not roll."

In paragraph VII it is averred:

"That as a direct and proximate result of said negligent acts of defendant * * * said pole started in motion and rolled over and on said George W. Burroughs, breaking the bones of his right hand and bruising the tendons and ligaments thereof * * *"

Plaintiff demanded judgment in the sum of $1,800.

Defendant answering, admitted:

"That some of its employees left an old telephone pole on vacant property in the vicinity of Fourth and Porter Streets in Portland, Oregon, but, except as so admitted, defendant denies each and every allegation of paragraph IV of the complaint."

Defendant denied the averments of paragraphs V and VI. It admitted that the plaintiff "in some manner fractured one of the bones of his right hand," but denied that the injury was caused by its negligence.

For a further and separate answer and defense, the defendant alleged:

"That the pole * * * was placed by the defendant in a reasonably safe position on vacant property; that said pole was old and of no further use to defendant and was left on said property for the purpose of being abandoned, and being used by other persons for fuel if they so desired. That whatever injury was sustained by said minor was on account of his own fault and negligence and the fault and negligence of the said guardian ad litem, who at that time had the care and custody of said minor, in not observing the usual precautions which should be used on or around a pole or other structure under similar circumstances."

The reply admitted that the plaintiff fractured the bones of his right hand and that the defendant placed the pole on vacant property. Trial was had, and at the conclusion of plaintiff's evidence the defendant moved for a nonsuit on the ground that no negligence had been shown and no cause of action had been established. The court, over defendant's objection, submitted the question of defendant's negligence to the jury.

From a judgment in the sum of $500 in favor of the plaintiff defendant appeals to this court.

Omar C. Spencer, of Portland (Carey & Kerr, of Portland, on the brief), for appellant.

W. E Farrell, of Portland (Davis & Farrell, of Portland, on the brief), for respondent.

BROWN, J. (after stating the facts as above).

Nothing renders this case difficult, unless it be a misunderstanding of the real facts.

That George W. Burroughs, a child six years of age, sustained an injury, resulting in a fracture of the bones of his right hand, is not disputed. It is also an established fact that the injury was produced by reason of a telephone pole rolling upon the child's hand. The plaintiff charged--

"That said defendant carelessly and negligently placed said pole on a hill or declivity, where children were playing and were apt to come in contact with the same * * *, and carelessly and negligently failed to block or brace said pole so it would not roll."

The defendant says, in its answer--

That it placed the pole "on vacant property; that said pole was old and of no further use to defendant and was left on said property for the purpose of being abandoned, and being used by other persons for fuel if

they so desired."

The defendant denied failure to block the poles. However, within an hour after the pole that rolled upon the plaintiff was so placed and abandoned by defendant, a neighbor, hearing the screams of children, stepped out of her house and saw two children who had been trapped by defendant's abandoned telephone poles.

We will now direct our attention to the error assigned by the defendant by reason of the court's overruling its motion for a judgment of nonsuit. Following the ruling of the court the defendant offered evidence upon its own behalf, and this motion will be considered in the light of the whole record.

There is some competent testimony in the record in support of each of the material allegations of the complaint. There is no contention that the plaintiff's complaint does not state a good cause of action. While we do not mean to be understood to say that the weight of the evidence is with the plaintiff-- that being a question for the jury--yet there is some competent proof tending to establish the material allegations of the plaintiff's pleadings. The record discloses that on the day preceding the accident the defendant's employees were removing telephone poles in the vicinity of Fourth and Porter Streets, Portland, Oregon, and that two old telephone poles were rolled by them to a vacant lot situate on Fourth and Porter Streets and there abandoned.

G. W. Warndahl, an employee of defendant, testified that on the evening before the accident a pole was taken down at the head of Porter Street and placed on the north side of the street. He said:

"Next morning we placed them on the other side of the street * * *; we placed them together and blocked them, put a block in front of them so they would be sanitary, so they couldn't roll down hill."

There is testimony in the record tending to show that the poles were not blocked to keep them from rolling on the sloping ground where they had been placed, and that there were children playing in that immediate vicinity at the time the poles were placed upon the vacant property.

Mrs. Minnie Jouchemich, a witness for the defendant, who resides on Porter Street, testified that she had asked the Telephone Company for a pole, and that the employees had left two, telling her that she might have them for fuel; that some three days after they were left there her husband took possession of them, cut them into pieces and put them in the basement. She testified that the children "played around there all the time," and that the poles had been left by the defendant probably an hour before the plaintiff was injured; that she recognized the danger to the children and told the plaintiff, who was playing about the poles with his baby sister, to take her home; that soon thereafter one of the neighbors came in and said the boy had hurt his hand. She said, "I didn't see it at all."

Mrs. Vera Hubert, a neighbor residing on the corner of Fourth and Porter Streets, testified, among other things, that there is but little traffic in that vicinity, and that Porter Street extends west from Fourth; that she saw the telephone poles there between the fence and a standing telephone pole, on a slope west of Fourth Street "in that space;" that within an hour after the poles were left by defendant she heard the screams of children. She testified:

"I heard the children crying and I went out the door to see what was the matter. I noticed the children lying on the ground, so I ran down to the place where the poles were. The

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