Cent. Union Tel. Co. v. Sokola

• Decision Date: 11 January 1905
• Docket Number: No. 4,951.,4,951.
• Citation: 34 Ind.App. 429,73 N.E. 143
• Parties: CENTRAL UNION TELEPHONE CO. v. SOKOLA.
• Court: Indiana Appellate Court

34 Ind.App. 429

73 N.E. 143

CENTRAL UNION TELEPHONE CO.

v.SOKOLA.

No. 4,951.

Appellate Court of Indiana, Division No. 1.

Jan. 11, 1905.

Appeal from Circuit Court, St. Joseph County; Walter Funk, Judge.

Action by Peter Sokola, administrator, against the Central Union Telephone Company and another. From a judgment for plaintiff, defendant telephone company appeals. Affirmed.

George Ford and Hawkins, Smith & Hawkins, for appellant. George G. Feldman, for appellee.

ROBINSON, P. J.

Suit by appellee, as administrator, against appellant and the South Bend Electric Company for damages for the death of Anton Sozmankowski as the result of an electric shock from the wires of appellant and the electric company. Upon issues found, the jury returned a verdict against appellant telephone company, and over motion for a new trial judgment was rendered on the verdict. The errors assigned (1 and 2), question the sufficiency of the complaint; (3) overruling the motion for a new trial.

The only questions argued by counsel are those arising under the third assignment of error. A new trial was asked upon the grounds: (1 and 2) The verdict is not sustained by sufficient evidence, and is contrary to law; “(3) the court erred in giving instructions Nos. 3, 4, 5, 6, 7, 8, 9, 11, and 13, on its own motion; (4) the court erred in giving instructions Nos. 3, 4, and 6 asked by defendant South Bend Electric Company; (5) the court erred in refusing to give instructions Nos. 1, 2, 3, 3 1/2, 5, 7, 10, 11, 12, and 14 asked by defendant Central Union Telephone Company.”

Some confusion exists in the record, due, perhaps, to the fact that counsel for appellant who have briefed and argued the case in this court were not present at the trial in the court below. The instructions have been brought into the record under section 1 of the act approved March 9, 1903 (Acts 1903, p. 338, c. 193). As it is not claimed in argument, and could not be successfully claimed, that all the instructions mentioned in the third ground for a new trial are erroneous, the question as to whether any particular one of the instructions was correct is not presented. The same may be said of the fourth ground for a new trial. In each case the instructions enumerated are jointly questioned. Young v. Montgomery, 161 Ind. 68, 67 N. E. 684;Jones v. State, 160 Ind. 537, 67 N. E. 264;Lautman v. Pepin, 26 Ind. App. 427, 59 N. E. 1073. Neither is it claimed that all the instructions refused are correct, and, as the assignment of the court's refusal to give the instructions requested was joint as to all the instructions refused, the fifth cause for a new trial presents no available error. Crawford v. State, 155 Ind. 692, 57 N. E. 931.

It is argued that the verdict is not sustained by sufficient evidence. The complaint avers that the South Bend Electric Company maintained on poles about 20 feet high and across certain lands certain wires for conducting electricity for lighting purposes, and conducted over these wires a high, deadly voltage of electricity; that in September, 1897, appellant constructed a line of two wires, which crossed at right angles the wires of the electric company; “that the defendant Central Union Telephone Company negligently erected its wires over and across the wires of defendant South Bend Electric Company as aforesaid, with uninsulated wires, and without guards to prevent the wires of defendant telephone company from coming in contact with the wires of defendant electric company; that defendant telephone company so negligently maintained its said wires and negligently suffered them to remain so until the accident as hereinafter alleged; that from and after the 27th day of November, 1901, the said wires erected by the defendant telephone company as aforesaid were not used by it to supply telephone service as aforesaid, but it negligently retained them and suffered them to remain on the poles as aforesaid for no use or purpose”; that from May, 1902, until the date of the accident there were daily a great number of laborers and workmen at work erecting a dwelling about 50 feet south of the crossing of the wires, all of which facts appellant knew; that during this time appellant negligently permitted these unused wires “to become and remain loose from the poles and sag and break and come in contact with” the wires of the electric company, “and drop to the ground, and refused and neglected to remove them, although notified so to do five months before the accident”; that on “the 30th day of October, 1902, and for a long time prior to said date, the defendants negligently suffered and permitted their wires to be and remain crossed as aforesaid, uninsulated and defective insulation, without guards to prevent them from coming together, and out of repair, as aforesaid, and defendants negligently permitted the said telephone company's wire to break and drop on and across the said electric company's high voltage wire, and drop and sag to the ground, in negligent and reckless disregard of the safety of the persons rightfully upon said premises”; that on the 30th day of October, 1902, while appellee's decedent was engaged as a laborer about and upon the erection of such dwelling, “the defendants then and there negligently suffered the said defendant Central Union Telephone Company's wire, which was uninsulated, to hang across and come in contact with the defectively insulated and high voltage wire of the defendant South Bend Electric Company, and in such position and contact suffering it to sag and drop to within two feet of the ground, where he was at work as aforesaid, and because of the negligent acts and omissions in the erection and maintenance of defendant's wires by them as aforesaid, he, said decedent, then and there came in contact with said defendant Central Union Telephone Company's uninsulated wire, which was then and there highly charged with a deadly voltage of electricity by and from the electric company's high voltage wire as aforesaid; that because of the negligent acts and omissions of the defendants as aforesaid” a deadly voltage of electricity was, by his coming in contact with such wire, conducted by appellant's wires as aforesaid through the body of decedent, causing instant death; that decedent at the time of the injury was ignorant of the condition of the wires and of the nature, force, and conduction of electricity.

We do not think it can be said that the complaint proceeds entirely upon the theory that appellant had actual notice of the condition of the wires, and that proof of constructive notice would not support the pleading. The complaint contains some...