Cumberland Telephone & Telegraph Co. v. Cosnahan

• Decision Date: 07 July 1913
• Docket Number: 15,964
• Citation: 105 Miss. 615,62 So. 824
• Parties: CUMBERLAND TELEPHONE & TELEGRAPH CO. v. J. C. COSNAHAN et al
• Court: Mississippi Supreme Court

62 So. 824

105 Miss. 615

CUMBERLAND TELEPHONE & TELEGRAPH CO. v. J. C. COSNAHAN et al

No. 15,964

Supreme Court of Mississippi

July 7, 1913

APPEAL from the circuit court of Lincoln county, HON. D. M. MILLER Judge.

Suit for damages by J. C. Cosnahan and others against the Cumberland Telephone & Telegraph Company and the city of Brookhaven. From a judgment for plaintiff against the telephone company and a judgment in favor of the city, both sides appeal.

The opinion states the facts in this case. The instructions referred to are as follows:

"(2) The court instructs the jury, for the defendant city of Brookhaven, that if you believe from the evidence that Wm Cosnahan, the deceased, on the occasion in question, was reckless and grossly negligent, then you must find for the defendant city of Brookhaven, even though you may believe from the preponderance of the evidence that the city of Brookhaven was negligent.

"(3) The court instructs the jury, for the defendant city of Brookhaven, that if you believe from the evidence that Wm Cosnahan came to his death solely by his own negligence, then you must find for the defendant city of Brookhaven."

Chapter 135, Laws of 1910, provides as follows:

"In all actions hereafter brought for personal injuries, or where such injuries have resulted in death, the fact that the person injured may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured. All questions of negligence and contributory negligence shall be for the jury to determine."

Reversed and remanded.

Harris & Potter, attorneys for appellant.

T. Brad, Jr. and H. Cassedy, attorneys for appellee and cross appellants.

No brief of counsel on either side found in the record.

OPINION

SMITH, C. J.

This suit was instituted in the court below by the fathers, brothers, and sisters of W. C. Cosnahan, deceased, to recover of the Cumberland Telephone & Telegraph Company and the city of Brookhaven damages for the death of W. C. Cosnahan, alleged to have been caused by the joint negligence of the telephone company and of the city. There was a verdict and judgment in favor of plaintiffs against the telephone company and against plaintiffs and in favor of the city, and the case comes to us on direct appeal by the telephone company and on cross-appeal by the plaintiffs.

The city of Brookhaven owns and operates an electric light plant, by which it lights its streets and the residences of its citizens who will pay therefor. The Cumberland Telephone Company is engaged in the telephone business, and owns and operates an exchange in the city of Brookhaven. The electric light and telephone wires are strung along the streets of the city, and on Second street they run parallel with each other; the telephone wires being on the east and the electric light wires on the west side thereof. At a certain point on this street two of the telephone wires cross it in order to reach the residence of Dr. Love, one of the company's subscribers. These wires cross the street diagonally over the electric light wires. No guard wire or other device, was placed by either the city or the telephone company at this point of intersection of their wires to prevent them from coming in contact in the event the telephone wires should fall. In addition, the insulation on the electric light wires at this point had become defective, and to some extent had fallen off. These telephone wires were so negligently fastened to their support that when, on the occasion in question, they were struck by a flying pigeon, they fell and came in contact with the electric light wires, by reason of which they became heavily charged with electricity, resulting in Dr. Love's telephone being put out of commission, or rather in causing the bell attached thereto to ring continually. The fact that Dr. Love's telephone was "in trouble" was communicated by some member of his family to the telephone company's manager, but exactly what information was given him does not appear. About the same time, which seems to have been between seven and eight o'clock p. m., some one telephoned to the exchange that an electric light pole was on fire at the top "down there."

At the telephone exchange there is an instrument which will usually indicate the fact of a telephone wire becoming heavily charged with electricity, and which particular wire is so charged; but whether this instrument indicated this fact on the occasion in question does not appear. At about eight-thirty p. m. Dr. Love, who seems to have been absent, returned to his home, and, going first to his barn, met there W. C. Cosnahan, the deceased, who informed him that his telephone was in trouble, and that he (Cosnahan) was trying to fix it. Cosnahan stated that he did not know what the trouble was, but he seemed to think it was caused by the telephone wires being crossed with each other at a point near the barn, where they ran through the branches of a tree. He spent some time in trying to separate these wires, if in fact they were crossed, but with what success does not appear. The telephone bell, however, continued to ring and finally Cosnahan muffled it in some manner so that its ringing was not sufficiently loud to disturb the family. He told Dr. Love he "was afraid to fool with it further," without stating why, and either he or Dr Love, which one does not definitely appear, stated in the presence of the other that if he did so he might get hurt. Dr. Love then told Cosnahan to go home and wait until the next day to remedy the trouble. Cosnahan then left the house, and Dr. Love retired for the night. Later in the night, Cosnahan was discovered lying on the side of the street, near Dr. Love's residence, with a telephone wire heavily charged with electricity wrapped around one of his legs, just above the ankle. The evidence...