Hayes v. New England Tel. & Tel. Co.

• Decision Date: 06 February 1934
• Parties: HAYES v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.
• Court: New Hampshire Supreme Court

174 A. 49

HAYES

v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.

Supreme Court of New Hampshire. Grafton.

Feb. 6, 1934.

On Rehearing, June 5, 1934.

Transferred from Superior Court, Grafton County; Woodbury, Judge.

Case by John Hayes, administrator of the estate of Paul Seyfert, deceased, against the New England Telephone & Telegraph Company. There was a verdict for plaintiff, and the case was transferred by the court upon defendant's exceptions.

Exceptions overruled, and judgment on the verdict.

Case to recover damages for the death of Paul Seyfert, the plaintiff's intestate, which resulted from a collision between an automobile driven by him and a pole of the defendant. Trial by jury with a verdict for the plaintiff. Transferred by Woodbury, J., upon the defendant's exceptions to the admission and exclusion of evidence; to the denial of its motions for a nonsuit and a directed verdict; to the allowance of portions of the argument of the plaintiff's counsel to the jury; to the charge; and to the denial of certain requests for instructions.

The facts and the exceptions considered are stated in the opinion.

Murchie, Murchie & Blandin, of Concord (Alexander Murchie, of Concord, orally), for plaintiff.

Demond, Woodworth, Sulloway & Rogers of Concord (Franklin Hollis, of Concord, orally; Fred C. Demond, of Concord, on the brief), for defendant.

BRANCH, Justice.

At about 9:30 in the evening of December 22, 1931, an automobile operated by the decedent upon the road between Enfield and Canaan and in the town of Canaan came into collision with a telephone pole maintained by the defendant, which stood about three feet from the edge of the tarred surface of the road. The car, of the type known as a coupe was found, with the decedent unconscious therein, on the right-hand side of the road, with the left-hand door destroyed and the pole imbedded in its left side at a point opposite the driver's seat. The road was icy and slippery at the time. The negligence of which the plaintiff complained was that the pole in question was set too close to the traveled part of the road.

Although there was no evidence upon the point, it was conceded by the plaintiff at the trial that the defendant's pole line "was located in accordance with governmental authority," which must be construed to mean under a valid license, and the defendant contends that, since the pole was lawfully erected, it cannot be charged with negligence upon the sole ground of improper location. The soundness of this position must be tested by an examination of the statutory provisions applicable thereto.

The statute by authority of which, we must assume, the defendant's pole line was erected, read as follows:

"2. Locating. Such person or corporation shall petition the selectmen of the town through which the line will pass to locate the route thereof and grant a license therefor. The selectmen may grant a license for such time as they deem expedient, may from time to time change the terms and conditions thereof, and may revoke it whenever the public good requires. They shall fix and state therein the size and location of such poles and structures, the distances between them, the number of wires to be used, and their distance above or below the surface of the highway. * * *

"4. Interference with Travel. No poles, structures or wires shall be so placed as to interfere with the safe, free and convenient use of any highway for public travel, or of any private way leading therefrom to adjoining land or buildings, or with the use of such land or buildings, or so as to interfere with any other similar structure." P. L. c. 97, §§ 2, 4.

"These provisions were designed to regulate and control the use made of highways for such purposes, so that such use will not unduly interfere with the other public uses to which the highways are dedicated." American Loan & Trust Co. v. Electric Co., 71 N. If. 192, 200, 51 A. 660, 662.

In support of its argument that "the license is conclusive as to the (proper) location of the pole," the defendant seeks to establish two propositions: First, that the license must have specified the exact location of the pole in question because section 2 of the statute above quoted required that it do so; and, second, that the judgment of the defendant's agents as to the proper location of the pole was thus superseded by that of the selectmen of Canaan, for whose errors the defendant is not responsible.

It is unnecessary to consider the soundness of the first contention, for, even if the statute required the license to specify accurately the location of each pole erected in pursuance of it, the conclusion would not follow as a matter of law that the defendant was thereby absolved from liability for harm caused by the pole in question if it was in fact set in a spot where it constituted a danger to public travel.

On the contrary, liability on the part of the owner for the improper location of poles would seem to follow as a necessary corollary from the provisions of P. L. c. 97, § 4, above quoted. This section provides that "no poles * * * shall be so placed as to interfere with the safe, free and convenient use of any highway for public travel. * * *" The violation of an express statutory provision such as this ordinarily carries with it civil liability to any persons injured by the creation of a danger which the statute was designed to prevent (see Flynn v. Gordon, 86 N. H. 198, 165 A. 715), and such was the construction placed upon this section in McCaffrey v. Company, 80 N. H. 45, 46, 114 A. 395, 17 A. L. R. 813. The court there said: "In accepting this location the defendants assumed the burden imposed by section 4 of the same chapter that—'No poles, structures, or wires shall be so placed as to interfere with the safe, free, and convenient use of any highway for public travel.' As this duty is imposed upon the defendants by statute, it is unnecessary to refer to authorities declaring the obligation of those lawfully maintaining in public ways wires for the transmission of electricity to exercise care for the safety of the traveling public."

We see no reason to doubt the correctness of this interpretation. The suggestion of the defendant that "section 4 is simply a direction to the selectmen" involves a strained construction of the language of the act which we decline to adopt.

Final confirmation of the views above set forth is found in sections 15 and 16 of the same act (P. L. c. 97), which provide as follows:

"15. To Indemnify Town. The proprietors of every line of wire strung in a highway shall indemnify the town against all damages, costs and expenses to which it may be subjected by reason of any insufficiency or defect in the highway occasioned by the presence of the wires and their supports therein.

"16. To Party Injured. They shall also be responsible directly to any party receiving injury in his person or estate from the wires or their supports, or from the use thereof by the proprietors."

The meaning of section 16 seems extremely clear. The statement that the proprietors of every line of wires strung in a highway shall be responsible to every party receiving injury from the wires or their supports would ordinarily require no elucidation. Some confusion has arisen, however, because of the fact that sections 15 and 16 were originally a single section of the Public Statutes (Pub. St. 1901, c. 81, § 16), in regard to which this court made the following observations: "The second sentence gives to the person injured a direct action against the defendant instead of requiring recovery of the town and action over. As recovery could not be had against the town without proof of the town's default, it is not probable it was intended to make the defendants who answered over liable directly, if without fault." Lambert v. Company, 80 N. H. 126, 130, 113 A. 793, 796.

Basing their argument upon these statements, counsel for the defendant contend that the only party primarily liable for harm caused by the improper location of poles in a highway is the town; that the proprietors are liable only as indemnitors of the town; that direct proceedings are permitted against them only to avoid circuity of action; and that, since the town could not be held liable under the facts of this case (P. L. c. 89, § 1), the defendant is similarly immune from liability.

The Lambert Case does not sustain this argument. Nowhere in that decision is it stated that the defendant was liable only as indemnitor of the town. On the contrary, the court clearly recognized two distinct bases of liability, namely: (1) Liability of the town upon "proof of the town's default," in regard to which the defendant must answer over; and (2) direct liability of the defendant to the person injured upon proof of the defendant's fault. Clearly section 16 imposes upon the proprietors of poles something more than an indemnitor's liability for the default of the town, since they are made responsible, not only for injury caused by "the wires or their supports," but also for that caused by "the use thereof by the proprietors" for which the town would not be responsible at all.

The provisions of the original act of 1881 from which the present law was derived (Laws of 1881, c. 54) shed light upon the meaning of the sections here involved. Section 10 of that act read as follows: "Nothing herein contained shall exempt any such proprietors from liability for any unlawful entry, trespass, or damage already made or committed, nor from any liability or damage that may occur from want of care or from negligence in erecting or maintaining such poles, structures, or wires." Here was a plain provision that the proprietors should be liable for the results of their own negligence in erecting poles despite the fact that they were acting under a license from the selectmen.

The revision of 1891 was apparently designed to enlarge, rather then to restrict, liability here imposed. Section 10 of the act of 18...