Howard v. Flathead Independent Telephone Co.

• Decision Date: 16 May 1914
• Docket Number: 3379.
• Parties: HOWARD v. FLATHEAD INDEPENDENT TELEPHONE CO. ET AL.
• Court: Montana Supreme Court

141 P. 153

49 Mont. 197

HOWARD v. FLATHEAD INDEPENDENT TELEPHONE CO. ET AL.

No. 3379.

Supreme Court of Montana

May 16, 1914

Appeal from District Court, Ravalli County; R. Lee McCulloch, Judge.

Action by Ruth E. Howard against the Flathead Independent Telephone Company and another. From a judgment in favor of the plaintiff against the Flathead Independent Telephone Company that company appeals. Reversed and remanded.

Elmer E. Hershey and Wm. Wayne, both of Missoula, for appellant.

O'Hara Edwards & Madeen, of Hamilton, for respondent.

HOLLOWAY J.

The complaint herein charges that the defendant Flathead Independent Telephone Company, during December, 1911 maintained a telephone line along the public highway two miles west of Victor, Mont.; that at a point on that highway near the foot of Blackmore Hill it had attached a guy or stay wire to one of its telephone posts standing at the side of the road, which guy wire extended for several feet towards the center of the road, and to the ground where it was anchored, "obstructing said road, and making traveling thereon dangerous to the public;" that on December 9, 1911, while plaintiff was riding along the road in a buggy drawn by one horse, a wheel of her buggy ran into said guy wire, with the result that her horse became frightened, ran away, caused the buggy to be overturned, and plaintiff thrown out and injured. The answer of the Flathead Independent Telephone Company consists of a general denial of the allegations charging negligence, and an affirmative plea that the plaintiff's injuries were caused solely by her own negligence. Upon the affirmative matter, issues were made by reply. At the conclusion of plaintiff's case the action was dismissed as to the Montana Independent Telephone Company. From a judgment in favor of plaintiff, and from an order denying the Flathead Independent Telephone Company a new trial, these appeals are prosecuted.

Upon the trial evidence was offered on behalf of plaintiff, to the effect that at the place of the alleged injury a public road from the southwest known as the Blackmore Hill road unites with a road from the south known as the Davis road, and the road formed by the union of these two runs north to John Blake's residence, where it turns to the east and extends to the town of Victor; that the entire width of these roads is not graded for use, and not fit for use; that the graded portion of the Blackmore Hill road is about 12 feet wide, and at the point of union of the two roads the graded or traveled portion is from 16 to 30 feet wide; that at the time of the accident this graded portion was in good condition for traveling; that on the south side of the graded portion was a considerable bank, and on the north side stones had been thrown; that the line of telephone poles is about 1 foot within the western or northern line of the extreme limits of the highway, and 8 or 9 feet from the nearest line of the graded or traveled portion of the road; that the guy wire in question was at about the point where the two roads unite, and was anchored to the ground at a point from 1 foot to 3 feet outside the graded or traveled portion of the road; that on the afternoon of December 9, 1911, plaintiff came down the Blackmore Hill road from the southwest, on her way to Victor; that the horse drawing her buggy was gentle; that the plaintiff had been over this road many times before and knew of the telephone line; that just at the point of juncture of the two roads--to quote her own testimony:

"My buggy came in contact with the wire, and my horse reared and jumped to one side, and something broke, I don't know what it was, and she continued to run until we came to the Blake corner, and she went around the corner very fast, and the buggy was thrown over, and I was thrown out. It was nearly 6 o'clock and dark. I didn't see the wire before I ran into it; but I had the horse under control. * * * I reached the foot of Blackmore Hill about a quarter of 6, I should think, and it was nearly dark. I could see my horse all right. I had driven down this hill before in the dusk. * * * My wheel struck the wire and ran over it. My horse was on a jog trot. I should think I hit the wire about 2 1/2 feet from the ground. The wheel of my buggy did not run under the wire; but I bumped against it. I had my horse under perfect control. It was still quiet, and I cannot give any explanation as to why I hit that wire. The horse did not shy or rear up."

The foregoing, with evidence indicating the extent of her injuries, fairly epitomizes plaintiff's case. The defendant Flathead Independent Telephone Company interposed a motion for a nonsuit; but this was denied, and the ruling of the court thereon is made the principal ground of appellant's contention in this court.

Whether the evidence above makes out a prima facie case of actionable negligence depends upon a number of well-settled principles of law. Plaintiff's case was presented apparently upon the theory that proof of negligence on the part of the defendant and resulting injury to the plaintiff makes out a prima facie case, for her counsel in their brief say:

"Did the Flathead Independent Telephone Company so construct its lines 'as not to incommode or endanger the public in the use of said roads'? If it did not, and one of the public was injured, then, in the absence of excusing circumstances, sufficient under the law, defendant is liable for such injury."

That is not the law in this state or elsewhere, so far as we know. It is the rule, established by repeated decisions of this court, and generally recognized by the authorities, that, in addition to proof of negligence and resulting injury, plaintiff must bear the burden of showing that the particular negligence charged was a proximate cause of the injury. Therriault v. England, 43 Mont. 376, 116 P. 581; Monson v. La France Copper Co., 39 Mont. 50, 101 P. 243, 133 Am. St. Rep. 549.

While theoretically a public highway in this state is 60 feet in width (section 1339, Rev. Codes), it is the rule recognized generally that the county is...