Ela v. Postal Tel. Cable Co.

• Decision Date: 28 May 1901
• Citation: 51 A. 281,71 N.H. 1
• Parties: ELA v. POSTAL TEL. CABLE CO.
• Court: New Hampshire Supreme Court

51 A. 281

71 N.H. 1

ELA

v. POSTAL TEL. CABLE CO.

Supreme Court of New Hampshire. Hillsboro.

May 28, 1901.

Exceptions from Hillsboro county.

Case by Charles C. Ela against the Postal Telegraph Cable Company for personal injuries. Trial by jury, and case transferred. Exceptions sustained.

The defendants maintained a line of telegraph poles, carrying four wires, along a highway in Hooksett, running through a large tract of woodland. The growth on each side extended to the wrought portion of the highway, and was of sufficient size to be cut into logs and cord wood. At the place where the plaintiff was injured there was a curve in the highway, and the poles were set on the easterly side of the highway, along the outside of the curve. Two of the wires were strung on the inside of the poles, and so were likely to fall Into the highway if detached. There was evidence tending to prove that the defendants were negligent in constructing the line in this way; that the poles should have been set on the opposite side of the highway, being the inside of the curve, or the wires should have been strung on the outside of the poles. There was also evidence of negligence in not using the most approved brackets to support the wires, and in not providing guards to catch the wires if detached. On the day of the accident, and for several weeks before, one Lynch, a person acting independently of the defendants, was engaged in clearing the wood lot. A tree cut by him on the westerly side of the highway fell across it, and soon afterward the defendants' wires were found to be detached from the poles and in the highway. Lynch testified that he put a brace against the easterly side of the tree to prevent it from falling into the highway; that the wind blew from the west, and pressed the tree against the brace so as to break it and cause the tree to fall in that direction; that the brace was a suitable one; and that no other tree fell into the highway. The plaintiff, while driving along the highway, came in contact with the wires and was injured. The jury were instructed, subject to the defendants' exception, as follows: "In the first instance, you will determine what was the cause of the wires being in the highway. Were they there because of the fault of the defendants in the construction of the line, or was their presence caused by the act of Lynch in felling the tree? If the act of Lynch was the cause, you will have no occasion to consider any other question, and your verdict will be for the defendants. You will be asked for a special finding upon this question: Were the acts of Lynch the cause of the presence of the wires in the road? If the acts of Lynch caused the tree to fall into and across the road, so that the branches struck the suspended wires and detached them, and for that reason they fell across the highway, you will answer the question, 'Yes.' If but for the felling of the tree in this manner the wires would have remained in position, the law regards the acts of Lynch as the cause of the trouble. If you answer this question in the affirmative, you will also return a general verdict for the defendants. But if you answer it in the negative, you will come to the other questions,—those of the care of the two parties." The plaintiff requested the following additional instruction: "If you find the wires brushed or hit by the falling tree would not have been knocked off if they had been secured with reasonable care, the plaintiff may recover." It was given, with the following limitation, which was added subject to the plaintiff's exception: "But due care did not require that the defendants should anticipate and provide against the cutting and felling of trees by Lynch." The jury answered "Yes" to the special question and returned a general verdict for the defendants.

Burnham, Brown & Warren and Charles H. Burns, for plaintiff.

Taggart & Bingham, for defendants.

CHASE, J. The evidence tended to prove that the defendants were guilty of negligence in stringing wires on the inside of poles placed on the outside of the curve...