Cumberland Tel. & Tel. Co. v. Kranz

• Decision Date: 09 June 1911
• Docket Number: No. 7,244.,7,244.
• Citation: 48 Ind.App. 67,95 N.E. 371
• Court: Indiana Appellate Court
• Parties: CUMBERLAND TELEPHONE & TELEGRAPH CO. v. KRANZ.

48 Ind.App. 67

95 N.E. 371

CUMBERLAND TELEPHONE & TELEGRAPH CO.

v.KRANZ.

No. 7,244.

Appellate Court of Indiana, Division No. 2.

June 9, 1911.

Appeal from Circuit Court, Clark County; Harry C. Montgomery, Judge.

Action by Leonard Kranz against the Cumberland Telephone & Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

M. Z. Stannard and Jonas G. Howard, Jr., for appellant. J. K. Marsh, for appellee.

IBACH, J.

This was an action in tort brought by Leonard Kranz, appellee, to recover damages against the Cumberland Telephone & Telegraph Company, appellant, and the Louisville & Northern Railway & Lighting Company, for the alleged negligent killing of two horses, the property of appellee. Appellant owned and operated a telephone line. Its codefendant company owned and operated an electric railway. During a windstorm appellant's telephone wire fell and rested in part on the railway company's trolley wire, and in part on the ground, and by contact with the trolley wire the telephone wire became charged with an electric current. As the telephone wire was thus resting on the ground charged with the current from the trolley wire, appellant's servant attempted to drive the horses across it, and they received an electric shock from the telephone wire which killed them. The case was tried by jury and a verdict returned in favor of the defendant railway company, but against the defendant telephone company. Appellant's motion for a new trial was granted, and the issue between appellee and appellant was tried a second time by the court without jury. The court made a special finding of facts and statement of conclusionsof law thereon. It is assigned for reversal of the judgment that the court erred in each of its conclusions of law stated upon the special finding of facts.

We set out herein in abridgement the substance of the special finding of facts; the twenty-fourth, twenty-fifth, twenty-seventh, twenty-eighth, twenty-ninth, and thirtieth findings being set out in full. (1) The Louisville & Northern Railway & Lighting Company, hereinafter designated as the railway company, operated an electric railway in Clark county, Ind. (2) Appellee owned a tract of land adjacent to the main line of this railroad, on which (3) prior to April, 1907, he established a cold storage plant located 1,300 feet west of the main line of the railroad, which plant he was operating on July 11, 1907. (4) Prior to April, 1907, he arranged with the railroad company to build a switch from their main line to his storage plant, and agreed to convey to the company a strip of ground 40 feet wide for a right of way, (5) which right of way was surveyed by the railroad company and stakes were set along it. (6) During April, 1907, appellant, the Cumberland Telephone & Telegraph Company, hereinafter designated as the telephone company, at plaintiff's request, constructed a branch telephone line leading to the cold storage plant, and continued to operate this line until after July 11, 1907. (7) In constructing this line, the telephone company attached its wire to a telephone pole which stood north of the 40-foot strip of ground, and to a cherry tree which stood about 75 feet south of this strip, and to other trees south of the cherry tree, (8) the distance between the telephone pole and the cherry tree being about 125 feet, and between the cherry tree and the next tree south to which the wire was attached about 300 feet. (9, 10) The telephone wire extended transversely across the 40-foot strip of ground, and was suspended from 7 to 10 feet above ground where it crossed, without support of any character between the pole and the cherry tree, in which condition it remained until changed by the railway company, as hereinafter described. (12) In May, 1907, appellee conveyed by deed according to his agreement the 40-foot strip of ground to the railway company for a right of way, and (13) in June, 1907, that company began the construction of a switch, in pursuance of their agreement, and (14) notified the telephone company to remove its wire at the point where it crossed the right of way, which the telephone company failed to do. (15) In June, 1907, the railway company constructed the switch, and in so doing erected a line of trolley poles along their right of way, and (16) strung upon these poles a trolley wire at the height of 25 feet above ground, and (17), without detaching the telephone wire from the telephone pole or the cherry tree, raised said wire to a point 18 inches above the trolley wire, and attached the same to the arm of one of the trolley poles. (18) This wire was then 26 1/2 feet from the ground, 18 inches above the trolley wire, and the two wires remained in such condition with the knowledge of the two companies, until the telephone wire fell as hereinafter described. (19) At the point where the wires crossed neither of them was insulated, and no guard was placed about them to prevent the telephone wire resting on the trolley wire, in the event of its falling. (20) The wires could have been so guarded as to prevent such resting in such event, and could have been so insulated that an electric current transmitted through the trolley wire could not have been communicated to the telephone wire, in case of its falling and resting on the trolley wire. (21) In June, 1907, the railway company began to operate cars on the switch by electric power, (22) transmitted through its said trolley wire at a current strength of 500 volts, and the same was being so operated on July 11, 1907, at the time when the appellee's horses were killed. (23) At about 4 p. m., July 11, 1907, a thunder and wind storm occurred in the vicinity of the switch, cold storage plant, and telephone line. (24) “During said storm said branch telephone wire became detached from one of the trees located south of said cherry tree, and having become so detached became so slackened that one portion thereof rested on said trolley wire and another portion thereof, which was between said cherry tree and the next tree south thereof, laid and rested upon the ground.” (25) “At the place where said portion of said branch telephone wire so rested on the ground, the ground was covered with a growth of grass and weeds, which tended to obscure the same from the view of one driving over said place.” (26) On July 11, 1907, plaintiff was the owner of two horses and a wagon, which horses were of the value of $-, and had in his employ a competent driver. (27) “On said 11th day of July, 1907, and after said storm had subsided, and while said branch telephone wire was so resting in part on said trolley wire and in part on the ground, and while said trolley wire was by said Louisville & Northern Railway & Lighting Company so charged with an electric current of 500 volts, and while plaintiff's said horses, *** hitched to said wagon, were by plaintiff's said driver being carefully driven across said land from said cold storage plant to a public highway and across the place where said branch telephone wire was so lying upon the ground, said horses came in contact with that part of said branch telephone wire which was so lying upon the ground, and by reason thereof received an electric shock from which they were then and there instantly killed.” (28) “The electric shock, by reason of which said horses were killed, was the same which was so transmitted through said trolley wires by said Louisville & Northern Railway & Lighting Company and from said trolley wires communicated to and transmitted through said branch telephone wire.” (29) “Said horses on said occasion were so driven by said driver in a careful and prudent manner, and said injury to said horses, from which their death so resulted, arose without the fault or negligence of the plaintiff.” (30) “By reason of the death of said horses plaintiff has sustained damages in the sum of four hundred dollars, which sum is due and unpaid.”

And as conclusions of law the court states:

“First. That the defendant, Cumberland Telephone & Telegraph...