Cumberland Telegraph & Telephone Co. v. Martin's Adm'r

• Decision Date: 28 October 1903
• Citation: 116 Ky. 554,76 S.W. 394
• Parties: CUMBERLAND TELEGRAPH & TELEPHONE CO. v. MARTIN'S ADM'R.
• Court: Kentucky Court of Appeals

76 S.W. 394

116 Ky. 554

CUMBERLAND TELEGRAPH & TELEPHONE CO. v. MARTIN'S ADM'R.

Court of Appeals of Kentucky.

October 28, 1903

Appeal from Circuit Court, Lincoln County.

"To be officially reported."

Action by Walter Martin's administrator against the Cumberland Telegraph & Telephone Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Wm. L Granberry, Humphrey, Burnett & Humphrey, and J. W. Alcorn for appellant.

R. C Warren and W. G. Welch, for appellee.

HOBSON J.

Appellee filed this action to recover of appellant for the death of his intestate, Walter Martin, a young man 25 years old charging that his death was caused by the negligence of appellant. He recovered judgment for $5,000. The only question we deem it necessary to consider on the appeal is whether the facts shown on the trial warranted a recovery. These facts are as follows: On May 18, 1901, a dark cloud came up at Roland, Ky. The deceased, in company with another young man and some boys, took refuge from the rain under the porch of a store building. Part of the boys entered the store, but the deceased remained on the porch, sitting on a goods box, with his back against the grating over the window. This grating ran up near the roof, and consisted of metal rods. A telephone wire belonging to appellant, as found by the jury, ran over the roof of this porch and within two or three inches of it. The roof was of metal and wet. Lightning struck one of the telephone poles about 600 yards from the porch, and, after shattering that pole and several on either side of it, was conducted by the wire to the porch, where it left the wire for the iron roof, or part of it did, and passed from the iron roof to the grating, and thence through the body of the deceased to the ground, killing him instantly. There was sufficient evidence of negligence in the way the wire was attached to the house to go to the jury if the defendant owed any duty to the deceased, or if his death was the proximate result of its negligence. The wire had been placed thus on the building in the year 1899, and there had been some complaint then by the owner about it, and there had been a promise to remove it by the person who put it there and there was some complaint also in the year 1900, but for some months before the injury nothing appears to have been said about it. Appellant did not put the wire there, but found it on the house when it took charge, but there was evidence of notice by the owner that the wire should be removed after this. There was some conflict in the evidence, but this is as strong a statement of the facts as the proof for appellee warrants. In Pittsburg, etc., R. R. Co. v. Bingham, 29 Ohio St. 364, the deceased, being out of employment, went to the passenger station of the railway for pastime and as a place of safety during a storm. The house was negligently constructed, and by reason of this negligence fell during the storm, killing the deceased. The action was brought to recover for his death. The court, after pointing out that actionable negligence exists only where he whose act causes the injury owes to the injured party a duty, and referring to many cases applying this principle, held that the plaintiff could not recover. It said: "It is doubtless true that a railroad company, by erecting station houses and opening them to the public, impliedly licenses all persons to enter. But it is equally true that such license is revocable at the pleasure of the company as to all persons who are not there on business connected with the road, or with its servants or agents. An implied license to enter a depot creates no additional...