Harton v. Forest City Telephone Co.

• Citation: 59 S.E. 1022,146 N.C. 429
• Parties: HARTON v. FOREST CITY TELEPHONE CO.
• Decision Date: 16 December 1907
• Court: United States State Supreme Court of North Carolina

59 S.E. 1022

146 N.C. 429

HARTON v. FOREST CITY TELEPHONE CO.

Supreme Court of North Carolina

December 16, 1907

Appeal from Superior Court, Cleveland County; Ward, Judge.

Action for negligent death by H. H. Harton against the Forest City Telephone Company. From a judgment for plaintiff, defendant appeals. New trial granted.

See 54 S.E. 299.

Defendant's request for an instruction that, if the jury believed the entire evidence, plaintiff could not recover, assumes the truth of plaintiff's evidence, and that, taking defendant's evidence to be true, entitles defendant to a verdict.

Action by plaintiff administrator for damages sustained by death of his intestate, which he avers was caused by the negligence of the defendant corporation. It is alleged and admitted that defendant, pursuant to authority conferred by its charter erected, and prior to March 1, 1903, maintained, a telephone line consisting of poles and wires strung thereupon along the public road from Forest City to Caroleen, in the county of Rutherford. It was in evidence, without controversy: That some 8 or 10 days prior to March 8, 1903, the overseer of the public road plowed along the side of the road within 8 or 10 inches of one of defendant's poles, "leaving it in a dangerous condition." That before this time the pole was in a secure condition-that it was "all right." That the overseer notified defendant's lineman of the condition in which the pole was left after he had plowed near it. There is no evidence showing when the notice was given. That on Sunday night, March 7, 1903, a heavy rain fell washing the earth away from the pole, and, by reason thereof it fell across the road. One J. C. Carpenter, a witness for defendant, says: That he passed along the road on Sunday, March 8, 1903, at about 2 o'clock in the afternoon. That the pole was "flat down across the road." He was in a hack with two other persons. Two poles were down. That they were the first persons who passed after the pole fell-this was shown by the wheel tracks. That he, with the assistance of those with him, lifted one pole and passed under it. The other pole they straightened up, set it in the ground "right back in the old hole," and propped it up with a pine stick from six to eight feet long. The lower end of the prop was in the edge of the road extending into the road about four feet. They got the prop from Mr. Morrow's wood pile. Four persons propped the pole. "We could have driven under it like we did the other one. It could not have been removed without breaking the wire." The prop could have been struck by a buggy passing. The road hands had worked close up to the pole. The witness met plaintiff and his daughter between the pole and Forest City. They were going towards the pole. "We propped it up to get it out of the way." One witness testified that he drove by the pole and saw that it was propped. "The prop was sticking out in the edge of the road. I drove around it. I had to do so to keep from hitting against it. If I had kept straight in the road, I would have hit the prop. The pole was right at the edge of the road, and the lower end of the prop was sticking out in the road. The prop was out where, if any one went along in the usual driving place, he would hit it." Mr. Morrow, for plaintiff, testified that he went to the pole just after the accident, found the pole on the side of the road, and a prop lying with it. "The prop was between five and seven feet long. I noticed where the buggy was driven. The prop was not long enough to reach into the rut." On Sunday, March 8, 1903, between 2 and 3 o'clock in the afternoon, plaintiff, in a buggy with his daughter, passed along the road from Forest City to Caroleen. He says: "She (my daughter) was sitting on the side next to the pole. She had a bank statement in her hand. I was not looking. The pole fell and struck her on the head and hurt her. There was one pole back of us, 10 or 20 steps from us. It fell at the same time. The base of the pole was from 6 to 8 feet from the rut of the wheels. Our buggy was in the center of the road when the pole fell. The wheels were in the current or middle of the road. When the pole fell, the mule ran 40 or 50 yards. I then went back to the place, and found the pole across the road, and also a prop by the side of the road. The prop was 4 or 5 or 6 feet long, and as large as my arm. There was a place where the end of the pole stuck 3 or 4 feet from the rut. I was just driving along the road, and my daughter was looking at a bank statement, when the pole fell." There was other testimony, but, in the view taken by the court, the foregoing only is material. The court submitted the following issue: "Was the death of the plaintiff's intestate caused by the negligence of defendant, as alleged?" Defendant requested the court to instruct the jury that, if they believed the evidence of the witnesses, both for the plaintiff and the defendant, they should answer the issue, "No." The request was denied. Defendant excepted. There was a verdict and judgment for plaintiff. Defendant appealed.

Webb & Mull, for appellant.

Pless & Winborne and Ryburn & Hoey, for appellee.

CONNOR J.

Before discussing the principal question involved in this appeal, it is important to note a difference, in an important respect, between the testimony certified to us in this and the former appeal. 141 N.C. 455, 54 S.E. 299. In that appeal, Alexander Mayes, a witness for plaintiff, after testifying in regard to the condition in which the pole was left by the overseer of the road, eight or ten days before the accident, says: "I told the lineman about the dangerous condition of the pole two or three days after we had worked the road. I told him it was the pole near Morrow's stable. In a few days I noticed a stob had been driven by the pole, but that did not appear to make it any safer." Rec. p. 13. In this record the same witness says: "I made report to the lineman of defendant company. I told him the pole was dangerous, and if it rained, and the ground got wet, that it would fall. I told him which one it was." The first testimony, if true, showed negligence, either in failing to repair the dangerous condition in which the road overseer left the pole, or in doing so negligently. If the lineman was told of its dangerous condition "two or three days" after the work on the road, it was at least six or seven days before the injury was sustained by plaintiff's intestate. To fail to repair the condition and make it secure after six or seven days' notice was manifest negligence. His honor, Judge Allen, so regarded it. From the testimony in this appeal, it does not appear how long, prior to the accident, notice was given the lineman. It is clearly the duty of a telephone company to exercise reasonable care-and "reasonable care" is, in this respect, a high degree of care-to select sound poles, and to place them securely in the earth to prevent them falling under ordinary and usual conditions, having due regard to the effect of rain and frost loosening the earth, and prevailing winds blowing them down. The duty of reasonably careful construction is followed by like care in maintenance and inspection. Joyce, Elec. Law, 605. The duty of inspection, in regard to its frequency, cannot be made definite; but regard must be had to the character of the soil, the condition of the weather, the season of the year, and such other conditions as may affect the security of the poles and the safety of the traveling public.

It is conceded that the defendant had discharged its duty in regard to construction of its line. Plaintiff's witnesses say that, before the road overseer ploughed near to it, the pole was secure, "all right." We cannot say that a failure to inspect, in the absence of any notice of trouble for eight or ten days, was negligence. In the absence therefore of evidence of the time the lineman was notified of the dangerous condition of the pole, we think there was no evidence of negligence. The mere fact that the pole fell on Sunday, following a heavy rain the night previous, would not constitute evidence of a failure to repair within a reasonable time after notice; there being no evidence when notice was given. In view of the fact that this case has been twice tried, and a new trial upon this point would prolong an expensive litigation, and in view of the further fact that the cause was tried below and argued in this court upon its merits, we deem it our duty to express the opinion to which we have arrived. When the case was here upon a former appeal a majority of the court thought that plaintiff should have gone to the jury, under Judge Allen's instructions. The case, as now presented, enables us to pass upon the right of plaintiff to recover upon his own, and such portions of defendant's, evidence as is not contradicted, and which the jury may find to be true. Defendant requested his honor to instruct the jury that, if they found the entire evidence to be true, plaintiff was not entitled to recover. This request assumes the truth of plaintiff's evidence, and that, taking the defendant's evidence to be true, entitles the defendant to a verdict. In this respect it differs from a motion for judgment of nonsuit. Before stating the case thus presented, we will eliminate the question whether plaintiff's buggy wheel struck the prop placed by Carpenter to support the pole, and thereby caused it to fall. More than one conclusion may be drawn from the testimony upon this point. Hence we must, in discussing the request for instructions, assume that the wheel did not strike the prop. We do not think that there is any evidence of negligence on the part of plaintiff. We also assume, for this purpose, that defendant's lineman was guilty of negligence in failing to...