Chesapeake & Potomac Tel. Co. of Baltimore City v. Noblette

• Decision Date: 14 June 1938
• Docket Number: 53.
• Citation: 199 A. 832,175 Md. 87
• Parties: CHESAPEAKE & POTOMAC TELEPHONE CO. OF BALTIMORE CITY v. NOBLETTE.
• Court: Maryland Court of Appeals

199 A. 832

175 Md. 87

CHESAPEAKE & POTOMAC TELEPHONE CO. OF BALTIMORE CITY v. NOBLETTE.

No. 53.

Court of Appeals of Maryland

June 14, 1938

Appeal from Circuit Court, Cecil County; Wm. Mason Shehan and J Owen Knotts, Judges.

Action by William B. Noblette against the Chesapeake & Potomac Telephone Company of Baltimore City to recover damages for the burning of plaintiff's grist mill as alleged result of defendant's negligence in failing to keep a telephone ground wire in repair. From a judgment on a verdict for plaintiff, defendant appeals.

Reversed.

Wm Pepper Constable, of Baltimore, and G. Elbert Marshall, of Easton (John D. Alexander, of Baltimore, on the brief), for appellant.

L Wethered Barroll and W. Albert Menchine, both of Baltimore (James W. Hughes, of Elkton, on the brief), for appellee.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, and JOHNSON, JJ.

PARKE Judge.

The appeal is from a judgment on the verdict of the jury in favor of William B. Noblette, plaintiff, and against The Chesapeake and Potomac Telephone Company of Baltimore City, defendant, for the alleged negligence of the defendant in the burning of the grist mill of the plaintiff. The negligence charged is a failure to keep the ground wire of a telephone installation in repair. It is asserted that this default was the cause of the mill being struck and set on fire by lightning during a thunderstorm.

The frame mill of two and one-half stories was in the form of a rectangle whose dimensions were twenty-four feet by thirty feet. The mill was about twenty-five feet high. The small, eight by ten feet, office was in the northwest angle of the mill and the engine room was in the northeast corner. From the rear or east side of the building an addition, eight feet high, projected. It was used for the gasoline motor which supplied the power to operate the machinery of the mill and the grain elevator which extended to the third floor. The office was entered by a solid door, and sunlight was admitted through an office window on the west side of the office. A telephone was mounted on the south wall of the office opposite to the door.

The county road ran north and south a short distance away from the west side of the mill. The mill dam was near the north end of the mill, and the residence of the owner of the mill was southeast of that building about a quarter of a mile distant. There were trees at the front and back of the mill, sixth or ninety feet away, and the trees and mill were the same height. The telephone line extended north and south with the road. The pole from which the telephone service in the office at the mill was connected stood about twenty-five feet west of the mill, and the line was carried from the top of this pole downward to the west side of the mill. Here the wire entered the building through a porcelain tube over the window about sixteen feet above the ground and was carried inside to a standard lightning arrester. The inside wire was brought from the outer side of the arrester and connected with the telephone instrument, which was fastened to the wall. It was that type which has a small wooden box to hold the interior equipment, with the receiver hanging from a hook on the left, and a crank on the right to turn to ring the operator.

A part of the equipment was a ground wire which ran from the bottom of the lightning arrester out to the exterior of the west side of the mill and down the outside of the mill, to which it was fastened by nailed cleats, and thence along the foundation wall into the ground where it was united to a ground steel peg or rod. No suggestion is made of any defect or default in the instrument and equipment or in their installation. The telephone service was put there in 1929 or 1930, and there is no testimony of deterioration of the apparatus or equipment or of lack of care in the operation and maintenance until March or April, 1936. At this time, the plaintiff testified that they had notice that the ground wire was broken from twelve to sixteen inches, according to varying witnesses, from the surface of the ground and the upper part of the wire swung loose because the cleats had come loose, and that the operator at the local telephone exchange had been notified of this condition. At the time of the fire the distance between the ends of the severed wire was something like two or three inches. There was nothing else in the mill which was electrically operated. The fire occurred on June 3, 1936, between five and six o'clock in the afternoon. The plaintiff had been operating the mill by his gasoline motor and had stopped between four and half past four in the afternoon. He then went to see a neighbor a half a mile away. He remained there a short time and left for his home in his automobile. About half the distance between his home and the mill, he saw smoke coming up from the northwest corner of the mill. He had difficulty in estimating the time between when he left the mill and when he saw the smoke of the fire, and finally put it as something like five or ten minutes. He went at once to the mill, and could save nothing. The mill and its contents were wholly consumed. The principal and decisive question is the right of recovery on the whole testimony.

Where there is no contributory negligence, a telephone company is liable for injuries which are proximately caused to property by the negligent or improper manner of constructing and maintaining its lines and equipment in its control on the premises of a subscriber of its telephone service. As the telephone company is not an insurer against injury, it is not liable when it is not negligent; and, again, if negligent, the telephone company is not liable unless its negligence and the injury suffered are in causal relation. Should there be, however, a combination of two causes to produce an injury, and both are in their nature proximate, and the one cause be an act or some thing for which neither the company nor the person injured nor a known third party is responsible in tort for its happening, and the other cause be a negligent act or some thing sounding in tort for which the company is responsible, the telephone company is liable, if the injury would not have been sustained if it were not for such default on its part. Restatement of Torts, vol. 2, sec. 432, subsecs. 2, d-6 pp. 1161-1164. Thus the destruction of the mill by ignition caused by a stroke of lightning is a proximate cause of the injury suffered by the plaintiff who, as a general rule, may not recover for an injury inflicted by what is known in law as an act of God. Nevertheless, should it be established by the plaintiff that the fire would not have been produced by the stroke of lightning had there not simultaneously existed a condition at the mill which was the result of the telephone company's negligence and which, in combination with the stroke of lightning, was the proximate cause of the fire which consumed the mill and its contents, the plaintiff would be entitled to recover against the telephone company for its neglect. Griffith v. New England Telephone Co., 72 Vt. 441, 444, 48 A. 643, 52 L.R.A. 919; Boomer v. Southern California Edison Co., 1928, 91 Cal.App. 375, 267 P. 178; Stecher v. Southwestern Bell Tel. Co., 1931, 132 Kan. 362, 295 P. 709; Wood v. Cumberland Tel. & Tel. Co., 1912, 151 Ky. 77, 151 S.W. 29; Alling v. Bell Tel. Co., 1923, 156 Minn. 60, 194 N.W. 313; Epperson v. Postal Tel. Cable Co., 1899, 155 Mo. 346, 50 S.W. 795, 55 S.W. 1050; Rocap v. Bell Tel. Co., 1911, 230 Pa. 597, 79 A. 769, 36 L.R.A.,N.S., 279; Sinkovich v. Bell Tel. Co., 1926, 286 Pa. 427, 133 A. 629; Western Tel. Corporation v. McCann, 1937, 128 Tex. 582, 99 S.W.2d 895; Alabama Power Company v. Farr, 214 Ala. 530, 108 So. 373; Southwestern Bell Telephone Company v. McAdoo, 178 Ark. 111, 10 S.W.2d 503; Southwestern Telegraph & Telephone Company v. Abeles, 94 Ark. 254, 126 S.W. 724, 140 Am.St.Rep. 115, 21 Ann.Cas. 1006; Pearce v. Mountain States Telephone & Telegraph Company, 65 Colo. 91, 173 P. 871, L.R.A.1918F, 1102; St. George Pulp & Paper Company v. Southern New England Telephone Company, 91 Conn. 563, 100 A. 358; Peninsular Telephone Company v. McCaskill, 64 Fla. 420, 60 So. 338, Ann.Cas.1914B, 1029; Columbus Railroad Company v. Kitchens, 142 Ga. 677, 83 S.E. 529, L.R.A.1915C, 570; Georgia Power Co. v. Stonecypher, 1933, 47 Ga.App. 386, 170 S.E. 530; Wells v. Northeastern Telephone Company, 101 Me. 371, 64 A. 648; Warren v. Missouri & Kansas Telephone Company,

196 Mo.App. 549, 196 S.W. 1030; Lynch v. Carolina Tel. & Tel. Co., 1933, 204 N.C. 252, 167 S.E. 847; Evans v. Eastern Ky. Tel. & Tel. Co., 124 Ky. 620, 99 S.W. 936; Texas Telegraph & Telephone Co. v. Scott, 60 Tex.Civ.App. 39, 127 S.W. 587; Southern Tel. & Tel. Co. v. Evans, 54 Tex.Civ.App. 63, 116 S.W. 418; Southwestern Tel. & Tel. Co. v. Davis, Tex.Civ.App., 156 S.W. 1146. The principles stated are subject to the qualification that the plaintiff must prove affirmatively the negligence alleged and that it caused the injury, and that this burden is not met by testimony which tends to show that the negligence of the defendant may have caused, or even that it probably did cause, the injury, if it should further appear that the injury may have been produced by some other cause for which the defendant was not responsible. Moore v. American Stores Co., 169 Md. 541, 549, 550, 182 A. 436; Shafer v. State, 171 Md. 506, 509, 189 A. 273; Realty, etc., Co. v. Ulrich, 164 Md. 666, 670, 165 A. 708.

Since the only negligence attributable to the defendant on this record is its failure, after notice, to repair within a reasonable time, the broken ground wire, it is essential to the plaintiff's right of recovery to show that this parted wire was the...