Cumberland Telephone & Telegraph Co. v. Ware's Adm'x

• Decision Date: 20 May 1903
• Citation: 115 Ky. 581,74 S.W. 289
• Parties: CUMBERLAND TELEPHONE & TELEGRAPH CO. v. WARE'S ADM'X.
• Court: Kentucky Court of Appeals

74 S.W. 289

115 Ky. 581

CUMBERLAND TELEPHONE & TELEGRAPH CO. v. WARE'S ADM'X.

Court of Appeals of Kentucky.

May 20, 1903

Appeal from Circuit Court, Daviess County.

"To be officially reported."

Action by Thomas W. Ware's administratrix against the Cumberland Telephone & Telegraph Company and others. From a judgment for plaintiff against the Cumberland Telephone & Telegraph Company, it appeals. Affirmed.

Humphrey, for appellant.

Wilfred Carico and Birkhead & Clements, for appellee.

PAYNTER J.

This action was instituted by the appellee against the city of Owensboro, Westinghouse, Church, Kerr & Co., and Cumberland Telephone & Telegraph Company, to recover damages for the death of her intestate, Thomas Ware. A recovery was sought against the defendants because of the alleged concurring negligent acts of each, which caused his death. The city of Owensboro had made a contract with Westinghouse, Church, Kerr & Co. to construct an electric light plant in the city. The work had progressed, poles had been erected, and wires were strung and charged with electricity. The Cumberland Telephone & Telegraph Company was engaged in stringing a wire along Ann street, in the city of Owensboro, from its exchange building to the messenger office, to do which it required a wire to be placed upon the cross-arms of its poles along Ann street which wires were elevated above the electric light wires which crossed that street. There were two poles south of the electric light wires. The decedent ascended the first pole carrying up a wire to which was attached a rope. He threw it over the cross-arm, and dropped an end of the rope to the ground, whereupon Tom Potts, another employé, took it and ascended the next pole, and did likewise; whereupon Lee, who was in charge of the force, took it up and threw it over the electric light wires, and he then took hold of the rope with the wire attached, and pulled it across the electric light wires. While pulling it over the electric light wires, it came in contact with them, thereby becoming charged with electricity, and as a result Ware was instantly killed. The testimony tends to show that the rope attached to the wire was too short to enable them to carry the wire from the pole up which Tom Potts had ascended to the next pole to which it was to be attached, which had been ascended by Jug Potts, another employé. The handling of the rope was done in such a way that the jury was authorized to conclude that the wire was brought in contact with the electric light wires as the result of Lee's negligence. The plaintiff sought to recover against the three defendants upon the ground that the electric light wire was not properly insulated, and the telephone company, being aware of that fact, was guilty of negligence in allowing its wire to come in contact with it. By an amended petition the plaintiff pleaded in the alternative that, if the electric light wire was properly insulated, then the telephone company was guilty of negligence on account of the manner in which it pulled its wire over and against the electric light wire, and, thus caused Ware's death. The trial resulted in a verdict for the city of Owensboro and Westinghouse, Church, Kerr & Co., and a verdict against the appellant.

It is urged that the petition is not good, and that a cause of action cannot be maintained, because the defendants were not joint tort feasors. If the city of Owensboro and Westinghouse, Church, Kerr & Co. strung an electric light wire and left it remaining without proper insulation, and the telephone company negligently brought its wire in contact with the electric light wire, then concurring negligent acts produced Ware's death; and under the doctrine of Pugh V. C. & O. R. R. (Ky.) 39 S.W. 695, an action can be maintained against one or against all of the defendants. Where several persons jointly commit a tort, the injured party has his election to sue all or some of the parties jointly, or some of them separately. Buckles, etc., v. Lambert, 4 Metc. 330; Hill and Bergen v. Harris, 4 Bush, 450; Swigert, etc., v. Graham, 7 B. Mon. 661. If the city of Owensboro and Westinghouse, Church, Kerr & Co. strung an electric light wire which was not properly insulated, they were guilty of negligence, and their negligent act continued and was as effective in the production of the death of Ware at the time the telephone wire came in contact with it as it would have been had the telephone wire been strung at the same instant the electric light wire was, and the contact had then produced his death. If the electric light wire was not properly insulated, the city of Owensboro and Westinghouse, Church, Kerr & Co. were wrongdoers continuously until the act which resulted in the death of Ware. Their act in maintaining the wire necessarily concurred with the act of the telephone company in producing the death of Ware.

Again, it is urged that the petition is not good in stating a cause of action in the alternative, because appellant claims that it is not averred that the pulling and drawing of the telephone wire over the electric light wire was carelessly and negligently done. When the whole petition is taken together, we think these averments are sufficiently made. Under the instructions no recovery could have been had except the jury believed that such pulling was carelessly and negligently done.

Before entering upon the consideration of the question as to whether the court erred in giving instructions to the jury, it may be said that, if it gave an instruction more favorable to the city of Owensboro and Westinghouse, Church, Kerr & Co. than they were entitled to receive as against the plaintiff, that fact could not be a prejudicial error for which appellant can complain. Although they were thereby permitted to escape a recovery against them, appellant's liability for its tort still remained.

The appellant complains of instruction No. 6, which reads as follows: "The court instructs the jury that, as a matter of law, the city of Owensboro had the right to construct and maintain an...