Gorman v. New England Tel. & Tel. Co.

• Decision Date: 31 July 1961
• Citation: Gorman v. New England Tel. & Tel. Co., 172 A.2d 372, 103 N.H. 337 (N.H. 1961)
• Parties: Esther GORMAN v. NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY and Public Service Company of New Hampshire.
• Court: New Hampshire Supreme Court

Page 372

172 A.2d 372

103 N.H. 337

Esther GORMAN v.NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY and Public Service Company of New Hampshire.

Supreme Court of New Hampshire.

Argued Feb. 7, 1961.

Decided June 30, 1961.

Rehearing Denied July 31, 1961.

Devine, Millimet & McDonough, Manchester, and Hamblett, Kerrigan & Hamblett, Nashua (Joseph S. Millimet, Manchester), for plaintiff.

Burns, Bryant & Hinchey, Dover (Donald R. Bryant, Dover), for defendantNew England Telephone & Telegraph Co.

Sulloway, Hollis, Godfrey & Soden and Joseph S. Ransmeier, Concord, for defendantPublic Service Co. of N. H.

KENISON, Chief Justice.

One of the key factual issues in this case was whether the automobile that collided with the utility pole was operated by the plaintiff or by one Delude.The latter was somewhat a phantom witness since, although he was present in court, he was not called to testify by the plaintiff's counsel or by counsel for either defendant.Inasmuch as the evidence was highly conflicting, cross-examination was vigorous and the case was tried for nine days by competent counsel, it may be assumed that all counsel exercised good judgment in not calling this witness.There was evidence that the plaintiff had been drinking some and it was more probable than otherwise that Delude had been drinking more.In any event, it was stipulated by plaintiff's counsel that whoever was driving the car was negligent and the case was submitted to the jury under an instruction which denied the plaintiff any recovery unless she proved to be a passenger in the car.

The accident occurred sometime after 5:30 in the morning as the driver made a lefthand turn onto Stevens Avenue, striking a picket fence on the right (west) side of Stevens Avenue near the corner, breaking a number of pickets.It continued south along Stevens Avenue on the west side of the street striking a glancing blow against the left rear bumper and fender of a parked car which was about eighty-eight feet distant from the corner.The car then traveled across the street eighty-one feet further to collide with the utility pole maintained on the east side of the street by the defendants.

The defendants claim their motions for nonsuits, directed verdicts and judgment notwithstanding the verdicts should have been granted if the proper interpretation is placed upon RSA 254:18.That statute reads as follows: 'To Party Injured.They shall also be responsible directly to any party receiving injury in his person or estate from any pole or structure or underground conduit or cable or any wire or other attachment or appurtenance thereto, which has been constructed or maintained by any such proprietor without valid license or which has been constructed, maintained, or operated under a valid license but in a negligent manner, or in an improper location.'The plaintiff's contention is that this statute makes the defendants liable if the pole in this case was unlicensed, maintained within the limits of the highway, and if its presence caused or helped to cause her injuries, providing she herself was without fault.RSA 254:2, 10 are also relevant and are quoted at this point: '254:2 Authority to Erect.Telegraph, television, telephone, electric light and electric power poles and structures and underground conduits and cables, with their respective attachments and appurtenances may be erected, installed and maintained in any public highways and the necessary and proper wires and cables may be supported on such poles and structures or carried across or placed under any such highway by any person, copartnership or corporation as provided in this chapter and not otherwise.'

'254:10 Interference with Travel.The location of poles and structures and of underground conduits and cables by the selectmen shall be made so far as reasonably possible so that the same and the attachments and appurtenances thereto will not interfere with the safe, free and convenient use for public travel of the highway or of any private way leading therefrom to adjoining premises or with the use of such premises or of any other similar property of another licensee; and the location of any such pole or structure or underground conduct or cable, when designated by the selectmen pursuant to the provisions hereof, shall be conclusive as the right of the licensee to construct and maintain the same in the place located without liability to others, except for negligence in the construction, operation, or maintenance of the same or of the attachments and appurtenances thereto and except as is expressly provided herein.In no event shall any town or city or any official or employee thereof or of the state department of public works and highways be under liability by reason of the death of or damages sustained by any person or to any property occasioned by or resulting from the location, construction, or maintenance of any pole, structure, conduit, cable, wire, or other apparatus in any highway, pursuant to the provisions hereof.'

The defendants' claim, stated in a variety of ways, is in essence that the interpretation of the statute urged by the plaintiff and implemented in the Court's charge rests upon the assumption that the pole was a public nuisance and made them liable without fault in accordance with the discredited doctrine of Johnson v. Boston & M. Railroad, 83 N.H. 350, 143 A. 516, 61 A.L.R. 1178, which was overruled in Vassillion v. Sullivan, 94 N.H. 97, 47 A.2d 115.It is not seriously disputed that the Legislature could have imposed absolute liability on utilities locating an unlicensed pole within the limits of a public highway.Hayes v. New England T. & T. Company, 86 N.H. 486, 493, 174 A. 49.See also, Beard v. Boston & M. Railroad, 99 N.H. 469, 115 A.2d 314.The defendants assert that the Legislature did not do so in RSA 254:18 but that the Court in effect so charged the jury.

All parties rely upon the detailed history of the legislation and the decisions relating to the liability of utilities beginning many years ago (Laws 1877, c. 50) to prove their respective claims as to the meaning of RSA 254:18.Hayes v. New England T. & T. Company, 86 N.H. 486, 174 A. 49, supra;Labor v. Public Service Company, 92 N.H. 256, 29 A.2d 459;Twardosky v. Public Service Company, 95 N.H. 279, 62 A.2d 723.It is believed that no useful purpose would be served by again making an exhaustive analysis of these numerous statutes, their revisions and the cases thereunder.The increasing legislative concern to guard against the danger created by poles situated within public highways under modern traffic conditions with its mounting hazard, is both understandable and obvious from the trend of the laws enacted.The objectives of the statutory provisions governing this case appear threefold: first, that no poles be erected without a license (RSA 254:2); secondly, that a license should issue only for poles located so as not to interfere with safe traffic (RSA 254:10); and thirdly, that the ultimate responsibility be placed on the utilities for injuries resulting either from an unlicensed pole or from a licensed one if negligently located or maintained.RSA 254:18.

In the present casethe Court charged the jury, in pertinent part as follows: 'It is up to you to consider all of the evidence and decide whether this pole was or was not within the limits of the highway.If the pole was not within the limits of the highway, then the statute does not apply, and the defendants cannot be at fault and you should return a verdict for the defendants.But if you find that the pole was in the highway--within the limits of the highway--then the statute does apply, and you should consider the plaintiff's claim as to whether the defendants are at fault.

'Now, the defendants had no license to erect and maintain this pole, and it was therefore a public nuisance under the terms of the statute if it was within the limits of the highway, and the defendants are at fault if the pole caused or helped to cause the accident.It does not have to be the sole cause, but it must be one of the causes of the accident in order for the defendants to be held to have been at fault.If the accident would have happened anyway, even if the pole had not been there, then the pole was not a cause of the accident and the defendants would not be at fault; but if the pole was a cause of the accident, then the defendants would be at fault.

'It is not material on this issue whether the pole was in a reasonably safe position; its presence there in the highway was illegal, if you find that it was within the limits of the highway, no matter how long it had been there, and the defendants were at fault if the pole was a cause of the accident.'While the mention of nuisance by the Court in the instructions was not essential, the charge makes it clear that causal fault alone and not nuisance was made the basis of the defendants' liability.Accordingly we hold the Trial Court committed no error when it instructed the jury that if they found the unlicensed pole was within the limits of the highway and that it caused or helped to cause the plaintiff's injuries, the defendants were liable.

This holding is not a return to the theory of 'absolute liability' under the obsolete doctrine of the Johnson case as the defendants contend.In the present case in order for the plaintiff to prevail she had to convince the jury, as charged by the Court, that 'the pole caused or helped to cause the accident.'Furthermore the jury was told that 'if the accident would have happened anyway, even if the pole had not been there, then the pole was not a cause of the accident and the defendants would not be at fault * * *.'Stated in a different manner, the causal effect of defendants' maintenance of the unlicensed pole was submitted to the jury as a question of fact, and the jury was instructed that if the plaintiff was found to have been the operator of the automobile, her contributory...