Evans v. Eastern Kentucky Telephone & Telegraph Co.

• Decision Date: 14 February 1907
• Citation: 124 Ky. 620,99 S.W. 936
• Parties: EVANS v. EASTERN KENTUCKY TELEPHONE & TELEGRAPH CO.
• Court: Kentucky Court of Appeals

99 S.W. 936

124 Ky. 620

EVANS v. EASTERN KENTUCKY TELEPHONE & TELEGRAPH CO.

Court of Appeals of Kentucky.

February 14, 1907

Appeal from Circuit Court, Lee County.

"To be officially reported."

Action by Lewis Evans against the Eastern Kentucky Telephone &amp Telegraph Company. From a judgment in favor of defendant plaintiff appeals. Reversed and remanded.

S. P Stamper, for appellant.

Henry Watson, for appellee.

HOBSON J.

Lewis Evans owns a house and lot in the town of Proctor, Lee county, Ky. In August, 1902, he made a contract with the Eastern Kentucky Telephone & Telegraph Company by which it placed a telephone box in his house connected by wire to the defendant's exchange, and he agreed to pay it the sum of $1 a month for a period of 12 months for the use of the telephone. At the end of the year he notified the telephone company to remove the telephone box and wires from his house. It took out the telephone box but failed to remove the wires simply cutting them loose from the telephone box and leaving them in the house. Thus things stood until July 10, 1904, when there was a severe thunderstorm and the lightning struck a locust tree not far from Evans' house to which the wire of the telephone company was attached. The lightning tore up the tree and passed along the wire into the house, tearing up the room in which the wires had been left and damaging the property. The wires had remained in his house about 10 months after the telephone box was taken out before the house was struck by lightning. During this time Evans knew that the wires were still in the house, but did not request the telephone company to take them out, not knowing that it was dangerous for the wires to remain attached to the house after the box had been taken away, this being the first experience he ever had with a telephone. He sued the company for damages to the house, charging that the loss was due to its negligence. The defendant filed an answer denying the allegations of the petition. On the trial the plaintiff proved, in substance, the facts we have stated. The court peremptorily instructed the jury to find for the defendant. This was done, and, judgment having been entered dismissing the plaintiff's petition, he appeals.

It is insisted that the loss was due to the act of God, and that the plaintiff was as much responsible for the trouble as the defendant. While lightning is the act of God, the carrying of the...