Davenport v. White Mountain Power Co.
| Decision Date | 06 January 1942 |
| Citation | 24 A.2d 274 |
| Parties | DAVENPORT v. WHITE MOUNTAIN POWER CO. |
| Court | New Hampshire Supreme Court |
[Copyrighted material omitted.]
Transferred from Superior Court, Merrimack County; Connor, Judge.
Action on the case by Norman Davenport against White Mountain Power Company for negligence resulting in the destruction of the plaintiff's mill and damage to his machinery and products. Verdict for plaintiff, and case transferred to the Supreme Court on defendant's exceptions.
Judgment on the verdict.
Action on the case, for negligence resulting in the destruction of the plaintiff's mill and damage to his machinery and products. Trial by jury, with verdict for the plaintiff.
The defendant excepted to the denial of its motions for a nonsuit and for a directed verdict, to certain rulings of the trial court as to the admission of evidence, and to the denial of requests for instructions. The defendant also excepted to the denial of its motion to set aside the verdict, alleging particularly that it was excessive. Transferred by Connor, J. The facts appear in the opinion.
Demond, Sulloway, Piper & Jones, of Concord (Jonathan Piper, of Concord, orally), for plaintiff.
Mayland H. Morse and George R. Grant, Jr., both of Concord, for defendant.
The plaintiff owned and operated a garnet mill in Wilmot. During the night of January 6, 1939, the mill was destroyed by fire and the contents damaged. There is no serious disagreement that the first of the series of events that led to these results was the lodging of a birch tree, during an ice-storm, upon the wires of the defendant serving the mill. It could be found that two of the defendant's high-voltage wires consequently broke, and that one or both of them fell upon the private telephone wires maintained by the plaintiff. These telephone wires were strung upon the same poles that carried some private power wires maintained by the plaintiff, but in which there was no current at the time. The telephone wires led into the mill, which was a wooden frame building. The outside walls were covered with metal sheathing.
There is a dispute in the evidence as to what next happened. The plaintiff produced evidence that his telephone system was properly constructed and maintained, that the defendant was negligent in maintaining its transmission line, and that consequently the fall of the high-tension wires on the telephone wires created an are from the latter to the metal sheathing and caused the fire. The defendant produced evidence to support the theory that the are to the sheathing was due to the contributory negligence of the plaintiff in the construction and maintenance of his private telephone system.
Upon this evidence, it was for the jury to say which chain of events led to the fire. Adopting the plaintiff's theory, the jury were presented with the question whether reasonably prudent men, under the circumstances, would have cut or guyed the birch tree so that it would not come into contact with the defendant's wires. Here again, the testimony was in conflict, and the jury were warranted in finding that the defendant was negligent in that respect.
While the plaintiff had some knowledge of such situations superior, perhaps, to that of the average man, and while the tree grew on his own land, the maintenance of the defendant's line was primarily the defendant's lookout. Moreover, the tree was on the defendant's "right of way", which was separate from the plaintiff's "right of way", which crossed the defendant's at some distance from the point where the birch tree stood. It follows that the jury were not bound to find the plaintiff negligent in not anticipating the danger from the birch tree and in not taking steps to have it removed. The motions for a nonsuit and for a directed verdict were properly denied.
The defendant's manager was asked by the plaintiff's counsel, "You say before the fire you never looked at any telephone installation of Mr. Davenport's in and around the mill?" Upon objection that there was no obligation on the part of the defendant's manager to examine the plaintiff's equipment, the question was admitted, subject to exception. The question was then read to the witness, and again it was objected that there could be no duty to enter the mill. During the ensuing colloquy, the plaintiff's counsel used the words "particularly in and around the mill." Then occurred the following:
The question was then read once more, and the witness answered in the negative.
It may be granted that the defendant's servants had no duty, in this particular instance, to examine the plaintiff's telephone installation inside of the mill. The plaintiff's counsel plainly admitted that in the presence of the jury. It is therefore difficult to see what prejudice could befall the defendant because of the wording of the question. It does not appear that the court permitted the plaintiff's counsel to argue, or the jury to infer, that there was any duty of inside inspection. As far as appears it was properly left to the jury to infer that the defendant might be negligent if its manager was ignorant of obvious exterior risks such as the place and manner of the entrance of the telephone wires into the metal-sheathed mill. As to this, the witness "had already admitted his ignorance, and ignorance might be found to be negligent. Frear v. Manchester, etc., Company, 83 N.H. 64, 66, 139 A. 86, 61 A.L.R. 1280.
The plaintiff was asked in cross-examination concerning his maintenance of his private power transmission line. As to a photograph, he said, "I would say it is a fair sample of the way we maintained the line." Further questions along this line were excluded as immaterial, and the photograph was not admitted. The practice of the plaintiff in constructing and maintaining his own private power line was not material. It had no tendency, under the circumstances, to show the general custom of public utilities; but only the degree of care that the plaintiff took of his own property. What the plaintiff did for his own protection and for the protection of his property has no part in making the rule of conduct applicable to the defendant. This is especially true because the plaintiff's power wires were never charged except when the mill was being operated by energy carried over them, and never at night; while the defendant's wires were charged night and day, and whether the mill was being operated or not.
The defendant's manager, called as a witness by the plaintiff,...
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