Dawson v. Postal Telegraph-Cable Co.

• Decision Date: 05 December 1933
• Docket Number: No. 52,Oct. term, 1933.,52
• Citation: 251 N.W. 352,265 Mich. 139
• Parties: DAWSON v. POSTAL TELEGRAPH-CABLE CO. et al.
• Court: Michigan Supreme Court

265 Mich. 139

251 N.W. 352

DAWSON

v.POSTAL TELEGRAPH-CABLE CO. et al.

No. 52, Oct. term, 1933.

Supreme Court of Michigan.

Dec. 5, 1933.

Appeal from Circuit Court, Washtenaw County; Geo. W. Sample, Judge.

Suit by Pearl Dawson against the Postal Telegraph-Cable Company and another. Judgment for plaintiff, and defendant named appeals.

Reversed, without a new trial.

Argued before the Entire Bench except POTTER, J.

Stivers & Hooper, of Ann Arbor (Samuel C. Bowman, of New York City, of counsel), for appellant Postal Telegraph-Cable Co.

Burke & Burke, of Ann Arbor, for appellee.

BUTZEL, Justice.

At about 1 p. m. on July 25, 1930, Pearl Dawson, plaintiff sustained severe injuries while riding with some of her friends in an automobile. The car was driven against a pile of telegraph poles located parallel to and on the untraveled portion of Depot street, which, at that point, adjoins a railroad siding in Ann Arbor, Mich. Depot street is 66 feet wide, but the main traveled portion is only 34 feet in width. There is a space or strip on the north side of the street, lying between the traveled portion of the road and the railroad siding. While the strip is city highway property, it is used by trucks and other vehicles for the purpose of unloading cargoes of freight from the cars switched to this particular siding. This strip to the north of the traveled part of the road is distinctly higher in point of elevation than that part of the road devoted to vehicular traffic. A photograph introduced in evidence, taken after a rain storm, shows water lying in the depression between the traveled and untraveled portions of the road. A series of upright telegraph poles were set in the ground at intervals near the south edge of this untraveled portion and nearly in line with the south edge of the pile of poles, which was 17 feet south of the south rail of the railroad siding and 14 feet south of the north boundary line of the road. The pile of poles was situated a foot or two to the north of the boundary of the main traveled part of the highway.

The driver of the car in which plaintiff was riding attempted to pass a truck of the Staebler Oil Company just as the truck began a left turn without any warning signal. In order to avoid a collision, the driver swerved to the left, around the truck and off the main highway, and crashed into the pile of telegraph poles lying in the untraveled portion of the road. Plaintiff brought suit against both the Staebler Oil Company and the Postal Telegraph-Cable Company, to whom the poles belonged. The record fails to show the purpose for which the poles were to be used and the length of time during which they were left lying at the site of the collision. The natural inference would be that the Postal Telegraph-Cable Company had deposited the poles at that point for use in its business. The case was tried without a jury and the trial judge rendered a judgment against both defendants. The telegraph company is the sole appellant and is hereinafter referred to as the defendant.

Under section 11667, Comp. Laws 1929, the telegraph company may enter upon, construct, and maintain lines of telegraph through, along, and upon any of the public roads and highways by the erection of necessary fixtures, including posts, etc., provided that such construction shall not incommode the public in its use of the roads. The statute confers upon the telegraph company authority to take all steps necessary in the construction of its lines that do not unreasonably affect the convenience of the public. See Simonds v. Maine Tel. & Teleg. Co., 104 Me. 440, 72 A. 175,28 L. R. A. (N. S.) 942. The following statement from 82 A. L. R. 395 is borne out by many decisions cited therein:

‘It may be stated as a general proposition that a company lawfully maintaining poles in or near a public highway is not liable for the damage to person or property resulting from a road vehicle striking such pole, unless it is erected on the traveled portion of the highway or in such close proximity thereto as to constitute an obstruction dangerous to anyone properly using the highway, and the location of the pole is the proximate cause of the collision.’

Even were wo to assume, however, that defendant lacked authority or was otherwise negligent in piling its poles in the untraveled portion of the road, we do not believe that plaintiff could recover against defendant. Such action, even if negligent, was not the proximate cause of the accident. Defendant could not have foreseen a collision of this kind resulting from an act...