Cohen & Stryck v. Home Telephone Co.

• Court: Kentucky Court of Appeals
• Writing for the Court: THOMAS, J.
• Citation: Cohen & Stryck v. Home Telephone Co., 179 Ky. 107, 200 S.W. 344 (Ky. Ct. App. 1918)
• Decision Date: 05 February 1918
• Parties: COHEN & STRYCK v. HOME TELEPHONE CO. ET AL.

200 S.W. 344

179 Ky. 107

COHEN & STRYCK v. HOME TELEPHONE CO. ET AL.

Court of Appeals of Kentucky.

February 5, 1918

Appeal from Circuit Court, Pike County.

Action by Cohen & Stryck against the Home Telephone Company and another. Judgment for defendants, and plaintiffs appeal. Reversed.

Roscoe Vanover and J. S. Cline, both of Pikeville, and George B Martin, of Cattletsburg, for appellants.

John F Butler and J. J. Moore, both of Pikeville, for appellees.

THOMAS J.

The appellee and defendant below, N. Starkey, owns and operates a telephone system in a number of counties in Eastern Kentucky which he conducts in the name and style of Eastern Kentucky Home Telephone Company. The appellants and plaintiffs below were partners conducting a mercantile business in the suburbs of the town of Jenkins in Letcher county, Ky. under the name and style of Cohen & Stryck. At their request the defendant installed a telephone in their store in June, 1913. On July 1, 1914, the store and its contents were burned, and alleging that the fire was caused by lightning conducted into the store over the telephone wires, and that the installation of the telephone was carelessly, negligently, and improperly done and that defendant had carelessly and negligently failed to maintain it in a reasonably safe condition, plaintiffs brought this suit to recover the value of the store and its contents, which they fixed at $18,300. The negligence complained of was denied by answer, and upon trial the jury impaneled to try the case returned a verdict in favor of defendants, upon which judgment was rendered, and plaintiffs' motion for a new trial having been overruled, they prosecute this appeal.

Many grounds are urged as reasons for a reconsideration in the motion for a new trial, but all of them except two are of a minor, and, as we think, immaterial, nature. The two insisted upon in this court are: (1) That the verdict of the jury is flagrantly against the evidence, and (2) the failure of the court to properly instruct the jury.

That telephone companies, in constructing their lines and installing their telephones in residences, offices, and other places where desired are required to exercise ordinary care to protect the premises from injury or damage resulting from the effects of lightning seems to be well settled. In American & English Ency. of Law (2d Ed.) vol. 27, p. 1017, the rule upon this subject is thus stated:

"In placing wires for conducting electricity into a house, a telephone company owes the persons living there the exercise of reasonable care, proportioned to the known dangers of the conditions, to prevent the wires acting as conductors of lightning into the building, and it is liable for the damages resulting from neglect to provide against this danger."

The general principle under facts somewhat analogous was recognized and applied by this court in the case of Evans v. Eastern Kentucky Telephone & Telegraph Co., 124 Ky. 620, 99 S.W. 936, 30 Ky. Law Rep. 833. The fact that lightning is an act of God is not allowed to excuse the company when its negligence co-operating with the lightning produced the injury and loss complained of, for it is everywhere recognized that where the negligence of a responsible person concurs with an act of God in producing an injury, the one guilty of the negligent act will be liable for the consequences, as the injury would not have happened but for his negligence. Kenney v. Kan. City P. & G. R. Co., 74 Mo.App. 310; Chicago, B. & Q. R. R. v. Schaffer, 26 Ill.App. 280; South Side Realty Co. v. St. Louis & S. F. R. Co., 154 Mo.App. 364, 134 S.W. 1034; Martin v. City of Phila., 54 Pa. Super. Ct. 563; Frederick v. Hale, 42 Mont. 153, 112 P. 70; Brown v. West Riverside Coal Co., 143 Iowa 662, 120 N.W. 732, 28 L.R.A. (N. S.) 1260; Quincy Gas & Electric Co. v. Schmitt, 123 Ill.App. 647; Mo., K. & T. Ry. Co. v. Johnson, 34 Okl. 582, 126 P. 567; Evans v. Eastern Kentucky Telephone & Telegraph Co., supra.

The rule is rested upon the idea that it is the duty of the one guilty of negligence to anticipate such an act of God and to exercise reasonable care to guard against and prevent such act from producing injurious consequences. Indeed, it seems to be conceded in this case that if the telephone in plaintiffs' store was negligently installed, and because of which the lightning set it on fire, defendant would be liable.

In disposing of the first contention--that the verdict of the jury is flagrantly against the evidence--it will be necessary to briefly consider the testimony introduced by both parties. It is admitted that science has developed a reasonably safe mode of installing a telephone so as to protect the building against the effect and consequences of lightning, but upon the point whether such a mode was adopted in this case the testimony is exceedingly conflicting. It is agreed that in general terms the telephone wires at the place where they enter the building should be so insulated or otherwise protected that a heavy voltage of electricity passing through them would not ignite the building. Likewise it is agreed that prudent installation requires what is known as a lightning arrester, which should be connected either with a metal rod, or a wire of sufficient size running into the ground deep enough to be in constant contact with moisture. Whether these recognized requirements for the installation to be reasonably safe were complied with by defendant is the main question. By the man who installed the telephone in plaintiffs' store defendant proved that the telephone wires entered into the building through a hole made in its wall about a quarter of an inch in diameter, and that the two wires where passing through the hole were insulated with the proper material, and that they connected with a lightning arrester attached to the telephone; that properly connected with it was a piece of telephone wire which ran back through the same hole and down the side of the building into the ground to a depth of about three feet, a small coil of wire being attached to the buried end.

Defendant's testimony by a number of witnesses who are experts in the business is to the effect that such an...