Johnson v. Nw. Tel. Exch. Co.

• Decision Date: 29 June 1893
• Citation: 55 N.W. 829,54 Minn. 37
• Parties: JOHNSON v NORTHWESTERN TEL. EXCH. CO.
• Court: Minnesota Supreme Court

54 Minn. 37

55 N.W. 829

JOHNSONvNORTHWESTERN TEL. EXCH. CO.

Supreme Court of Minnesota.

June 29, 1893.

(Syllabus by the Court.)

1. Held, that the evidence was not such as to require a finding that the falling of a telephone pole was caused by the manner in which certain guy wires were removed.

2. Also, that all other questions in the case are res adjudicata, under the decision in a former appeal.

Appeal from district court, Hennepin county; Pond, Judge.

Action for personal injuries by August Johnson against the Northwestern Telephone Exchange Company. Plaintiff had judgment, and defendant appeals. Affirmed.

Eustis & Morgan, for appellant.

Henry Ebert and C. A. Ebert, for respondent.

MITCHELL, J.

After full examination, we are of the opinion that the record contains nothing which at all changes the legal aspect of this case from what it was when here before, and that every question now presented, except perhaps as to state of the evidence upon the question whether the pole would have fallen had Shadwell removed the guys from his building in a proper manner, is res adjudicata, under the decision on the former appeal, (48 Minn. 433,51 N. W. Rep. 225.) The pole which broke was a “corner pole” situated at an angle in the street, and was subject to the lateral strain of 114 No. 14 line wires strung on the cross-arms, and drawn taut to prevent sagging. The evidence was practically undisputed that the pole was entirely insufficient to bear this strain, unless supported by guys, or some other similar means of support. The defendant, for the purpose of showing that it did its duty in the premises, introduced evidence proving that it had, with the license of Shadwell, extended guy wires from the top of the pole to his building on an adjacent lot, and that as thus guyed the pole was perfectly safe, and would not have fallen; that Shadwell cut the guys; and that this was the immediate cause of the falling of the pole. For the same purpose, defendant also introduced evidence tending to prove that Shadwell had not revoked the license a reasonable time before cutting the guys to enable it to secure the pole by other means, and hence that his act in cutting the guys was unlawful, for the consequences of which it was not responsible. On the other hand, the plaintiff introduced evidence tending to prove, and from which the jury might have found, that, a reasonable time before cutting the guys, Shadwell had revoked the license, and required defendant to remove the guys from his building, but that it neglected to do so, or to secure the pole by other means. It is contended that this evidence was inadmissible under the pleadings, and that to admit it was to permit the plaintiff to recover upon a different cause of action from that alleged, which was that the defendant negligently suffered and permitted this pole “to become rotten and worn out, and not of sufficient strength” to bear the weight and strain of the wires strung upon it. It will be observed that the plaintiff only followed the line of proof adopted by the defendant itself. But an examination of the opinion of this court on the former appeal will show that the admissibility of this evidence under the pleadings is really res adjudicata in this case. It was there held that, upon the expiration of a reasonable time after the revocation of the license, Shadwell had a right,...