Gray v. Wisconsin Tel. Co.

• Decision Date: 01 March 1966
• Citation: 140 N.W.2d 203,30 Wis.2d 237
• Parties: Virgil J. GRAY, Appellant, v. WISCONSIN TELEPHONE CO., a Wis. corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 203

140 N.W.2d 203

30 Wis.2d 237

Virgil J. GRAY, Appellant, v. WISCONSIN TELEPHONE CO., a Wis. corporation, Respondent.

Supreme Court of Wisconsin.

March 1, 1966.

Donald W. Kaatz, Madison, Paul R. Nesson, Jr., Madison, of counsel, for appellant.

Geisler & Key, Robert J. Key, Madison, for respondent.

BEILFUSS, Justice.

The issues are (1) should the appeal be dismissed because the transcript does not include the testimony and exhibits relevant to the issues raised on appeal, (2) was it prejudicial error not to give the instruction setting forth sec. 182.017(2), Stats., and advising the jury that a violation of the statute constituted negligence as a matter of law?

Aside from the contention that the appeal should be dismissed, the issues involve the construction of sec. 182.017(1), (2), Stats., and its application to the facts as we have them in the partial transcript.

'182.017 Transmission lines; privileges; damages. (1) Reght of Way For. Any domestic corporation organized to furnish telegraph, telephone, service or transmit heat, power or electric current to the public or for public purposes, and any co-operative association organized under chapter 185 to furnish telegraph, telephone or transmit heat, power or electric current to its members, may, subject to reasonable regulations made by any city or village through which its transmission lines or systems may pass, construct and maintain such lines or systems with all nesessary appurtenances in, across or beneath any public highway or bridge or any stream or body of water, or upon any lands of any owner consenting thereto, and for such purpose may acquire lands or the necessary easements; and may connect and operate its lines or system with other lines or systems devoted to like business, within or without this state, and charge reasonable rates for the transmission and delivery of messages or the furnishing of heat, power or electric light.

'(2) Not to Obstruct Public Use. But no such line or system or any appurtenance thereto shall at any time obstruct or incommode the public use of any highway, bridge, stream or body of water.'

The record consists of the complaint and answers, the charge to the jury, the verdict, judgment, motions after verdict, requested special verdicts and instructions, the trial court's memorandum opinion on motions after verdict, and its ruling on the requested instruction. It does not contain the testimony or the exhibits.

The plaintiff-appellant noticed the partial transcript and the issues he sought to raise on appeal; the defendant, by motion, requested that plaintiff be required to furnish a transcript of the testimony and exhibits; the defendant's motion was denied and the partial transcript approved by the trial court. ¹

This appeal will not be dismissed because of the partial transcript but our review must be limited to the record. Ordinarily when the transcript (formerly designated the bill of exceptions) does not include the testimony and exhibits, our review is limited to a determination of whether the judgment is in accord with the verdict. ²

In Stelloh v. Liban (1963), 21 Wis.2d 119, 122, 124 N.W.2d 101, 102, we stated:

'The appeal comes before us without a bill of exceptions. Without a bill of exceptions, which is now designated a transcript of the reporter's notes by the new rules of this court, sec. 251.25(13), Stats., the scope of our review is necessarily confined to the record before us. Nichols v. United States Fidelity & Guaranty Co. (1961), 13 Wis.2d 491, 109 N.W.2d 131. Obviously, if no testimony is preserved on appeal, this court is powerless to review a question of fact dependent upon it or to determine the sufficiency of the evidence to support the verdict or the findings. In such cases we have said the only question is whether the judgment is supported by the pleadings and the findings or the verdict. Weyerhaeuser v. Earley (1898), 99 Wis. 445, 75 N.W. 80; Parke, Austin & Lipscomb, Inc. v. Sexauer (1931), 204 Wis. 415, 235 N.W. 785, or whether the findings support the judgment, St. Joseph's Hospital of Sisters of St. Francis v. Town of Withee (1932), 209 Wis. 424, 245 N.W. 128. See also cases in 6 [Callaghan's] Bryant, Wisconsin Pleading and Practice (Funiak & Williams), 3rd ed., p. 500, sec. 52.85. However, in this case the question raised is one of law, discussed and decided in the written opinion of the trial court which is a part of the record before us. The question may thus be considered by this court within the limitations of the record.'

The memorandum on motions after verdict does, in a limited manner, discuss the facts sufficiently to allow us to give consideration to the appellant's alleged errors of law. The memorandum sets forth: 'It was obviously the wire in question which did obstruct the highway at the time and place in question and therefore if the statute invoked strict liability on the utility, there was no issue for the jury. * * *'

The undisputed facts as we have them before us are limited to this extent--the defendant is a public utility and maintains telephone lines, poles and other appurtenances along a public highway; a guy wire for a transmission line pole was erected and strung so as to extent from the transmission pole over and above the highway and anchored on a stub pole on the opposite side of the highway. At a time and in a manner unknown to us the stub pole broke and fell which in turn allowed the guy wire to sag down so as to obstruct the highway. The plaintiff struck the sagging guy wire and was injured.

The jury found the plaintiff was not negligent--that finding must stand. The jury further found that defendant utility company was not negligent. The trial court fully instructed the jury as to duties of the utility company to use ordinary care in the inspection and maintenance of its equipment and specifically as to the stub pole and guy wires so as to keep them in a safe condition. The finding by the jury that defendant was not negligent (namely, that it did not fail to use ordinary care) in its duty to inspect and maintain its stub pole and guy wire is also conclusive in the absence of the testimony, unless the trial court erred in not instructing the jury as to sec. 182.017(2), Stats.

Plaintiff's argument and certain statements by the trial court indicate that the question of strict liability was raised. The record does not bear out this indication. Plaintiff's complaint was couched in terms of negligence, as were his requested instructions and his issues raised to justify the submission of a partial transcript. Nothing in the record indicates that strict liability was ever in issue, and on oral argument plaintiff conceded that he understood no difference between strict liability and negligence per se. Plaintiff has raised the issue of negligence per se regardless of any confusion in language.

Plaintiff argues that violation of sec. 182.017(2) Stats., supra, is negligence per se. Since the trial court conceded that the wire obviously obstructed the highway plaintiff argues that there was negligence as a matter of law.

Restatement, 2 Torts (2d), p. 37, sec. 288 B, considers the effect of a violation of a statute:

'(1) The unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself.

'(2) The unexcused violation of an enactment or regulation which is not so adopted may be relevant evidence bearing on the issue of negligent conduct.'

This section does not require that every violation of a statute is negligence per se. Sec. 286 of the Restatement, supra, discusses when the courts should adopt the legislation as defining a standard of conduct, at p. 25:

'The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part

'(a) to protect a class of persons which includes the one whose interest is invaded, and

'(b) to protect the particular interest which is invaded, and

'(c) to protect that interest against the kind of harm which has resulted, and

'(d) to protect that interest against the particular hazard from which the harm results.'

Our question then becomes whether sec. 182.017(2), Stats., which imposes no penalty or any civil liability, has any application in a civil lawsuit. Restatement, 2 Torts (2d), p. 26, sec. 286, Comment d. provides:

'Where no provision for civil liability. The enactment or regulation may, however, provide only for criminal liability, and not for civil liability; or in rare instances it may merely prohibit certain conduct, and contain no provision for any liability at all. In such cases the initial question is whether the legislation or regulation is to be given any effect in a civil suit. Since the legislation has not so provided, the court is under no compulsion to accept it as defining any standard of conduct for purposes of a tort action.'

This Restatement comment further indicates that situations will be rare where a court will consider legislation directed at safety of persons to be so obsolete or unreasonable so as not to apply it, but courts are free to do so.

The plaintiff contends that sec. 182.017 (2), Stats., must be viewed as a safety statute which has been violated. Defendant urges, however, that the statutory language cannot be read literally. It argues that the statute applies literally to the original construction and placement of the systems but that once they are properly constructed, the duty of ordinanry care applies on maintenance. Thus, it is negligence per se to errect a telephone pole in one of the travel lanes of the highway, or to run a line so as to obstruct the highway.

The legislative history of sec. 182.017, Stats., was not specifically alluded to by counsel but it is...