Drown v. New England Tel. & Tel. Co.

• Decision Date: 10 May 1907
• Citation: 66 A. 801,80 Vt. 1
• Court: Vermont Supreme Court
• Parties: DROWN v. NEW ENGLAND TELEPHONE & TELEGRAPH CO. et al.

66 A. 801

80 Vt. 1

DROWN

v. NEW ENGLAND TELEPHONE & TELEGRAPH CO. et al.

Supreme Court of Vermont. General Term.

May 10, 1907.

Exceptions from Orleans County Court; John H. Watson, Judge.

Action by Chauncey. Drown against the New England Telephone & Telegraph Company and another. Judgment for plaintiff, and defendant excepts. Affirmed and remanded.

Argued before ROWELL, C. J., and TYLER, MUNSON, HASELTON, and POWERS, JJ.

W. M. Wright, Frank D. Thompson, and John W. Redmond, for plaintiff. F. E. Alfred and P. F. Drew, for telephone company. Hunton & Stickney, for Consolidated Lighting Co.

ROWELL, C. J. This is case for negligence. The declaration contains two counts, and is demurred to by both defendants. The first count alleges that before and at the time in question the defendant the New England Telephone & Telegraph Company owned and operated a telephone line from Williamstown to Graniteville; that one of the poles of that line stood at the junction of two highways near Graniteville, near the top of which were two cross-pieces to which the wires were fastened; that, in order to attach the wires, and to repair them, it was necessary to climb the pole and work at the top of it; that before and at the time in question the other defendant, the Consolidated Lighting Company, was engaged in generating and selling electricity for artificial light, heat, and power; that after the construction of the telephone line, and before the time in question, the lighting company constructed an electrical line from Barre to Graniteville, consisting of three wires strung on poles, for the purpose of transmitting a powerful current of electricity, dangerous to human life; that the poles of the electrical line were placed on the same side of the highway from said junction to Graniteville as the telephone poles, and for the greater part of the way the electrical wires were strung and maintained above and directly over the poles and wires of the telephone line, and were constructed and maintained directly over the telephone pole at the junction of said highways. The count further alleges that it was the duty of the lighting company so to construct and maintain its line as not to endanger the safety of the telephone company's servants while on the poles of its line, but that the lighting company, disregarding its duty in this behalf, so carelessly and negligently constructed and maintained its line that the wires thereof were only about 27 inches from the top of the telephone pole standing at the junction of said highways, thereby greatly endangering the safety of the telephone company's servants, who had to work at the top of said pole. The count further alleges that at the time in question the plaintiff was in the service of the telephone company as a lineman, and that as such it became and was his duty to climb said pole for the purpose of attaching wires to one of the cross-pieces, and that it was the duty of the telephone company to furnish him a reasonably safe place in which to do that work, but that the top of said pole was an unsafe place "because of the close proximity of the electrical wires," as said company had reason to know, and that it was the duty of said company to render said pole a safe place, either by removing it, or by compelling the lighting company to remove its wires, neither of which it did, but suffered and permitted said pole and the electrical wires thus to remain in dangerous proximity to each other. The count further alleges that at the time in question said last-mentioned wires were charged with a dangerous current of electricity, and that the plaintiff was wholly ignorant of the close proximity of said wires to said pole, and was wholly ignorant that said pole was an unsafe place to work, and that while at work at the top thereof, fastening wires to one of the cross-pieces, without fault or negligence on his part, but solely in consequence of the negligence of the lighting company in constructing and maintaining its line as aforesaid, and of the negligence of the telephone company in suffering said pole and said electrical wires to remain in such close proximity to each other, he came in contact with said wires, and was burned and injured.

The second count is essentially like the first, except that it omits the allegation that the telephone company had reason to know that the top of said pole was an unsafe place to work, and charges the duty of the defendants as a joint duty, and its breach as a joint breach.

It is objected that the declaration is bad for misjoinder of defendants and causes of action, and urged that the rule of the common law, formulated when almost all the cases of tort were for intentional wrongs—that tort-feasors cannot be Joined unless there was concert of action or common design—is most logically applicable to negligence cases also, which have so greatly increased since the introduction of modern utilities. That a broader rule involves a very distinct departure from the original common-law conception of joint tort-feasors. That when two defendants act independently of each other, but their relations to the plaintiff are similar, so that the duties they have violated are of a similar character, and the defenses available to them rest upon the same legal principles, and in general the standard of care and the tests of negligence as against both are substantially the same, it might occasion no serious practical difficulty to try both cases in one action; but that when, as here, the duties that the two defendants are alleged to have violated are entirely different in character, when they stand in entirely different relations to the plaintiff, when the defenses available to them are distinct, and based upon entirely different legal principles, the danger of confusing the jury with evidence and instructions applicable to one case and not to the other, and the resulting risk of injustice to the plaintiff or to one or both of the defendants, constitute a sufficient objection, both theoretical and practical, to the joinder of two such causes of action in a single count of a single declaration. That the objection of duplicity in common-law pleadings, and of multifariousness in equity, applies with equal force to such a misjoinder, and the fact that the plaintiff's damage is the same in both cases tends only to increase the confusion.

It is true that the common-law rule for joining tort-feasors, when originally formulated, was based upon the conception of concert of action or common design. And it may be true, as claimed, that this conception resulted from the fact that then almost all of the tort cases were for intentional wrongs. But the rule is not confined to intentional wrongs, but embraces unintentional wrongs as well, for all agree that it embraces cases of wrongful neglect of joint duties. The difference of opinion comes when you have wrongful neglect of separate duties; but even here that difference is not so marked when the duties are similar, as it is when they are dissimilar. In the latter case, it is more strongly urged that to impose a joint liability would be an unwarrantable departure from the rule. But it cannot be said to be a departure from the rule to apply it to cases involving elements generically the same, though specifically different; that is, elements that give you concert of action or common design within the meaning of the rule. Now, the rule does not require "actual concert" as distinguished from "passive concert," nor "actual community," as distinguished from "passive community," for, if it does, the wrongful neglect of joint duties would not be within it, for there you have only...