Friendship Tel. Co. v. Russom

• Decision Date: 13 September 1957
• Parties: FRIENDSHIP TELEPHONE COMPANY v. Mrs. Lavergne Avery RUSSOM.
• Court: Tennessee Court of Appeals

Page 416

309 S.W.2d 416

43 Tenn.App. 441

FRIENDSHIP TELEPHONE COMPANY v. Mrs. Lavergne Avery RUSSOM.

Court of Appeals of Tennessee, Western Section, at Jackson.

Sept. 13, 1957 Certiorari Denied by Supreme Court Feb. 6, 1958.

J. Frank Warmath and G. Griffin Boyte, Humboldt, Robert G. McLean, Alamo, for Friendship Tel. Co.

Theo. J. Emison and J. B. Avery, Jr., Alamo, for Mrs. Lavergne Avery Russom.

FELTS, Judge.

This was an action brought by the widow of J. D. Russom for his wrongful death alleged to have been caused by the negligence of the Friendship Telephone Company, hereinafter called defendant. Its demurrer to her declaration was overruled, it pleaded over, and there was a verdict and judgment for her for $30,000. Defendant appealed in error and has assigned six errors.

Its first assignment is: 'The Court erred in overruling defendant's demurrer, on the grounds that the declaration on its face did not state a cause of action, because the declaration on its face showed that the defendant, if guilty of any negligence, could not reasonably foresee that injury would result, and that the proximate cause of the accident was an intervening force.'

In considering this assignment, we must take the facts stated in the declaration as true, with every intendment in their favor; for that is the effect of the demurrer. Jackson v. B. Lowenstein & Bros., Inc., 175 Tenn. 535, 542, 136 S.W.2d 495. The facts averred in the declaration were these:----

Deceased was operating a motor grader for the Highway Department of Crockett County on one of its unpaved, public highways known as the Blue Bird Road. Defendant owned and operated a telephone line along this road. At the point of the accident defendant had erected its telephone pole upon a bank a few feet above and north of the north edge or ditch of the road, with a guy wire tied to the top of the pole and running obliquely down to the ditch to an anchor rod and an iron disc or a 'dead-man' buried beneath the ditch.

At the time of the accident (July 1955) defendant had allowed this pole to become decayed and defective, and there was upon the bank a dense thicket concealing the pole and guy wire so that neither could be seen from the highway. Deceased was driving the motor grader, a heavy machine, westward along the north side of the road, cleaning out the ditch, when the grader blade struck the buried anchor rod of the guy wire with such force as caused the pole to break in two in the middle, and the top end fell, struck deceased's head, broke his neck, and killed him instantly.

After stating these facts, the first count of the declaration charged that defendant had negligently installed and maintained its pole and fixtures in the manner described and so as to create an obstruction dangerous to travelers and highway employees who defendant knew were maintaining this road and its side ditches by use of the motor grader and other like machines; and that by this negligence defendant caused the death of deceased.

The second count charged that defendant, in the manner described, obstructed and endangered the ordinary use of the highway, in violation of the statute (T.C.A. § 65-2106); and that this negligence was the direct and proximate cause of the death sued for. The third count alleged that the obstruction was a 'death trap' and a public nuisance, and was the proximate cause of the death.

After the demurrer was overruled plaintiff was permitted to add a fourth count charging that defendant knew of the work being done on this road by the highway employees, and was guilty of negligence in failing either to remove the obstruction or to notify them of the danger, and that this negligence caused the death.

The general principle is that the public are entitled to use the highway in all the usual modes of travel; and whoever obstructs and endangers such use, whether by intention or by negligence, is guilty of a public nuisance and is liable to any individual who suffers special damages therefrom. McHarge v. M. M. Newcomer & Co., 117 Tenn. 595, 608-612, 100 S.W. 700, 9 L.R.A., N.S., 298; Congreve v. Smith, 18 N.Y. 79, 82; 25 Am.Jur., Highways, secs. 272, 273, 288.

This principle extends to users of the highway 'who stray a few feet from it inadvertently or in an emergency' (Prosser on Torts (2nd ed.) 492); and any obstruction over, under, or so near the highway as to endanger such users comes within this principle. Niblett v. Mayor, etc., of City of Nashville, 59 Tenn. 684, 688; City of Knoxville v. Baker, 25 Tenn.App. 36, 41, 150 S.W.2d 224; De Ark v. Nashville Stone Setting Corp., 38 Tenn.App. 678, 683-684, 279 S.W.2d 518, 521.

It is true defendant, under our statute (T.C.A. § 65-2105), had a right to construct and maintain its line along this highway, but it had no right to obstruct the 'ordinary use' of the highway (T.C.A. § 65-2106); that is, use by the public, as pedestrians, and in all the usual modes of travel and all kinds of vehicles, including those used by the county employees in maintaining the roads.

As stated, defendant erected its pole over the road, and strung its guy wire from the top of the pole diagonally down to the ditch to the anchor rod and disc buried under the ditch or north edge of the road. Defendant had allowed the pole to become decayed and it and the fixtures to be so concealed by the thicket that they could not be seen from the road. Such a hidden thing was an obstruction which was dangerous according to common experience and which might reasonably be foreseen as likely to cause injury to users of the highway.

In Franklin Turnpike Co. v. Crockett, 1854, 34 Tenn. 263, deceased, 'a little excited by the use of spirits', was driving on the road, when his horse took fright and ran, and the wheel of his vehicle struck a telegraph pole, causing his death. The pole was in the 'inner edge' of the ditch, but about two feet from the outer edge of the traveled part of the road. It was held that this pole might be found to endanger travel and to be a nuisance for which defendant would be liable.

In Stern v. International Ry. Co., 1917, 220 N.Y. 284, 115 N.E. 759, 2 A.L.R. 487, 492-493, plaintiff's intestate, while riding as a guest in an automobile on a street in Buffalo, was killed when the driver swerved and the car struck a trolley pole in the center of the street between the railway company's double tracks. The company had placed the pole there in 1889, by authority of the state Legislature and of the town council.

It was held, however, that since the automobile had changed the modes of travel and 'magnified the likelihood and dangers of collision', the pole could be found to have become a dangerous obstruction and a nuisance; and that the defendants were liable--the railway company for maintaining the nuisance, the city for not abating it, and the owner of the car for his driver's negligence in striking the pole.

In Nelson v. Duquesne Light Co., 1940, 338 Pa. 37, 12 A.2d 299, 128 A.L.R. 1257, a guest in a car was killed when it struck a light pole. The pole was 5 1/2 feet from the paved part of the street proper but within the adjoining paved area in front of a filling station. It was held that the pole was a dangerous obstruction and a nuisance; and that the city's negligence in permitting the nuisance was a proximate cause of the death and was not superseded by the intervening negligence of the driver of the car in striking the pole.

In Louisville Home Telephone Co. v. Gasper, 1906, 123 Ky. 128, 93 S.W. 1057, 9 L.R.A.,N.S., 548, the telephone company strung its guy wire from the top of its pole down to the edge of a public alley and anchored it to a block in the ground. The wire was near a fence and its color so like that of the fence as to make it 'practically indiscernable'. A wagon was being rapidly driven in the alley, when its right rear hub collided with the guy wire, which caused it to overturn, strike, and seriously injure plaintiff, a pedestrian.

It was held that the company was guilty of negligence in maintaining its guy wire so as to constitute a dangerous obstruction in the alley; that such negligence was a proximate cause of plaintiff's injuries although such injuries could not have been foreseen and would not have occurred but for the intervening negligence of the driver of the wagon; and that both the company and the owner of the wagon were liable to plaintiff for their concurring negligence.

So, we think that defendant's pole, decayed, overhanging the highway, with its fixtures concealed and buried at the edge of the highway, constituted a dangerous obstruction which could reasonably be foreseen as likely to cause injury to users of the highway; and that in maintaining this obstruction defendant was guilty of negligence which was the proximate cause of the injury and death of deceased.

Learned counsel for defendant, however, insist that assuming it was guilty of negligence in maintaining the situation described, still it is not liable for the injury to deceased because such injury could not reasonably have been foreseen as a probable result of such negligence.

Some authorities do apply foreseeability as one and the same test of two very different things, namely: (1) scope of duty and (2) extent of liability. 'The measure of defendant's duty in determining whether a wrong has been committed is one thing; the measure of liability when a wrong has been committed is another'. Mr. Justice Holmes, in Spade v. Lynn & Boston Ry. Co., 172 Mass. 488, 491, 52 N.E. 747, 748, 43 L.R.A. 832.

'What ought to have been reasonably anticipated 'goes to culpability, not to compensation". Lord Summer, in WeldBlundell v. Stephens [1920] A.C. 984 (quoted in Winfield on Tort (6th Ed. 77). 'What the defendants might reasonably anticipate is * * * only material with reference to the question whether the defendants were negligent or not, and cannot alter their liability if they were guilty of negligence'. Blackburn J., in Smith...