Cumberland Telephone & Telegraph Co. v. Mayfield Water & Light Co.

• Decision Date: 27 October 1915
• Parties: CUMBERLAND TELEPHONE & TELEGRAPH CO. v. MAYFIELD WATER & LIGHT CO.
• Court: Kentucky Court of Appeals

179 S.W. 388

166 Ky. 429

CUMBERLAND TELEPHONE & TELEGRAPH CO. v. MAYFIELD WATER & LIGHT CO.

Court of Appeals of Kentucky.

October 27, 1915

Appeal from Circuit Court, Graves County.

Action by the Mayfield Water & Light Company against the Cumberland Telephone & Telegraph Company. From a judgment for plaintiff defendant appeals. Reversed.

Wheeler & Hughes, of Paducah, and Brutus J. Clay, of Atlanta, Ga for appellant.

Stanfield & Stanfield, of Mayfield, for appellee.

TURNER J.

In May 1912, Lemuel Magness, an employé of the Cumberland Telephone & Telegraph Company, was killed in Mayfield, Ky. by an electric current transmitted to the wire of the telephone company from the wires of the Mayfield Water & Light Company the latter being a corporation engaged in furnishing electricity to the citizens of that place. His personal representative instituted an action against the two companies jointly, wherein it was alleged that he came to his death by reason of certain joint concurrent negligence upon the part of said two corporations. The defendants in that action filed separate answers, and, the issues being completed, a trial was had which resulted in a directed verdict for the telephone company and a judgment and verdict for the plaintiff against the water and light company. The plaintiff therein appealed from the action of the court in directing a verdict for the telephone company, and the judgment was affirmed upon the ground that Magness had, as an employé of the telephone company, assumed the risk of which he had full notice. Magness' Administratrix v. Cumberland Tel. & Tel. Co., 156 Ky. 330, 160 S.W. 1061.

The water and light company accepted the verdict and judgment in the circuit court against it and satisfied the same, and thereafter brought this action against the telephone company for indemnity by reason of the payment thereof.

The substance of the petition is that for many years prior to 1912 the plaintiff had maintained its poles and wires on Seventh street, in Mayfield, and that some time before 1912 the defendant had negligently and carelessly strung one of its telephone wires leading into the residence of one Stephenson in such close and dangerous proximity to its heavily charged electric wires as to cause said telephone wire to come in contact therewith and thereby transmit the current of electricity through the telephone wire which resulted in Magness' death, and that said negligent act of the telephone company was the direct, proximate, and efficient cause of Magness' death.

In the original action the charge of negligence against the water and light company was that at the point where they came in contact with the telephone wire the electric wires were not sufficiently or at all insulated, and that the insulation thereon was old and worn off, and that it had negligently failed to repair the same. The judgment of the circuit court in the damage action against the water and light company must be deemed conclusive of its negligence in this respect; so that we have a plaintiff confessing its negligence which contributed to bring about the death of a citizen demanding indemnity of a defendant whose concurrent negligence also contributed to that event. The only question necessary to determine upon this appeal is whether the demurrer to the plaintiff's petition should have been sustained.

We have here one party conclusively shown to have been negligent, by the judgment of the court, in failing to have its electric wires insulated, and another party shown to have been negligent in placing its telephone wire in dangerous proximity to the heavily charged electric wires, and it is apparent that their concurrent acts of negligence, each separate and distinct from the other, brought about the death of Magness. If the electric wires had been properly insulated, the contact of the telephone wire with them would not have transmitted the electric current, and Magness would not have been killed. On the other hand, if the telephone wire had not been carelessly strung so near to the electric wires that it might come in contact with them, Magness would not have been killed. The separate acts of negligence of neither of the defendants would have brought about this result, but their two separate and distinct acts of negligence, concurring one with the other, at the time and...