Lafayette Tel. Co. v. Cunningham

• Decision Date: 28 November 1916
• Docket Number: No. 9057.,9057.
• Citation: 114 N.E. 227,63 Ind.App. 136
• Parties: LAFAYETTE TELEPHONE CO. v. CUNNINGHAM.
• Court: Indiana Appellate Court

63 Ind.App. 136

114 N.E. 227

LAFAYETTE TELEPHONE CO.

v.CUNNINGHAM.

No. 9057.

Appellate Court of Indiana, Division No. 1.

Nov. 28, 1916.

Appeal from Superior Court, Tippecanoe County; Henry H. Vinton, Judge.

Action by John F. Cunningham against the Lafayette Telephone Company. From a judgment for plaintiff, defendant appeals. Judgment affirmed.George P. Haywood and Charles A. Burnett, both of Lafayette, for appellant. Edgar D. Randolph, of Lafayette, for appellee.

HOTTEL, J.

This is an appeal from a judgment in appellee's favor in an action brought by him in the Tippecanoe superior court to recover damages for injuries resulting from his tripping and falling over a guy wire alleged to have been negligently erected and maintained by appellant in Romig street, in the city of Lafayette. The complaint was in two paragraphs, each of which was demurred to on the ground that the facts stated therein were not sufficient to constitute a cause of action. Each demurrer was overruled, and appellant then filed an answer in general denial. The issues thus joined were tried by a jury, which returned a verdict in favor of appellee in the sum of $2,500, together with answers to interrogatories. A motion for judgment on said answers and a motion for a new trial were each overruled. The several rulings above indicated are each assigned as error in this court, and relied on for reversal.

The allegations common to each paragraph of complaint, and pertinent to the questions presented by appellant's demurrer thereto are, substantially, as follows: The appellant, prior to January 23, 1911, negligently and unlawfully constructed a guy wire attached to a pole at an alley leading north off of Romig street, between Fourth and Fifth streets, and strung said guy wire east and fastened the same to an iron stake near the curbing on the north side of Romig street, and at the root of a large sycamore tree, situated and standing between the sidewalk and the gutter on the north side of Romig street, and east of said pole about 75 or 80 feet. There are two other large trees between said alley and the sycamore tree at the root of which said guy wire is fastened. Said guy wire slopes from where it is fastened to said pole to where it is fastened to said iron stake in the ground, and is about a quarter of an inch in diameter, and was carelessly, negligently, and unlawfully constructed and built in said highway by appellant long prior to the 23d day of January, 1911, and has been carelessly, negligently, and unlawfully maintained by it in said highway, as above described, ever since. The construction of said guy wire as aforesaid is an obstruction of Romig street, and a public nuisance. Such wire obstructs the free and proper use of said street and highway by the public and the citizens of the city of Lafayette in this, to wit: That said wire is invisible at night, and is calculated to, and does, deceive and trip people and persons using said highway and street in crossing from one side of the street to the other. Appellee, on the occasion in question, was a member of the police force of the city of Lafayette, and while walking westward on the sidewalk on the north side of Romig street, between Fourth and Fifth streets, in the performance of his duty as such police officer, he was called to by another officer on the south side of Romig street, and, in response to said call, started across said street, and, not seeing, and not being able to see, said guy wire, was caught and tripped by it and injured, etc., all without fault on his part. The second paragraph of complaint contains the additional averments that, at a regular meeting of the board of works of the city of Lafayette, Ind., held on the 27th day of January, 1909, a motion was passed, declaring said wire an obstruction to said highway and street, “and that the company will be held liable for all damages caused by the same.”

[1] Appellant contends that neither of said paragraphs shows that said guy wire was unlawfully placed or maintained by appellant, or that appellant had no right to maintain said pole and wire at the place described, but that it appears from the averments indicated that the wire was anchored outside the traveled part of the highway; that each paragraph shows that appellee was injured in attempting to cross Romig street, at a place where there was no intersection of a street or alley, and at a place not provided for crossing, and that therefore no liability of appellant to appellee is shown. The primary and general use of a highway is for travel; and, although a telephone company may have the right to occupy a highway with its poles, yet if it secures them in the highway with guy wires, its duty is to use reasonable care to so erect and maintain such wires as not to endanger the public travel, or the safety of individuals in the reasonable and ordinary use of the highway. Wilson v. Great Southern Telep. & Teleg. Co., 41 La. Ann. 1041, 6 South. 781;Poumeroule v. Postal Teleg. Cable Co., 167 Mo. App. 533, 152 S. W. 114; 2 Shear. & Redf. Neglig. (6th Ed.) § 359; 1 Thompson, Neglig. § 1239; Curtis, Electricity, § 504 p. 755.

[2] Each paragraph of complaint avers that appellant had erected its poles and wires in said Romig street; that appellee was a police officer in the city of Lafayette, and, on the night in question, was walking on said Romig street in the performance of his duties as such officer. These averments show the duty of appellant to use reasonable care to so maintain its guy wire that it would not endanger the use of said street by the public (appellee included), and hence shows a duty from appellant to appellee. This duty being shown, the averments in the complaint that said wire was “carelessly, negligently, and unlawfully constructed and built in said highway, *** and has been carelessly, negligently, and unlawfully maintained” by appellant, sufficiently charges a negligent violation of said duty, there being nothing shown by the complaint which would destroy the effect of such general allegations of negligence. Tippecanoe Loan, etc., Co. v. Cleveland, etc., Ry. Co., 57 Ind. App. 644, 656, 657, 104 N. E. 866, 106 N. E. 739, and cases cited; Cleveland, etc., Ry. Co. v. Clark, 51 Ind. App. 392, 404-405, 97 N. E. 822;New York, etc., R. Co. v. Lind, 180 Ind. 38, 44, 45, 102 N. E. 449.

[3] Appellant, however, contends that the complaint shows that appellee was injured while attempting to cross said street at a place where there was no intersection of a street or alley, and at a place not provided for crossing. The fact that appellee, when injured, was outside the usually traveled part of the highway, while pertinent to the question whether appellee was guilty of negligence contributing to his injury, does not discharge appellant of its duty to use the reasonable care before indicated. Wilson v. Great Southern Telep., etc., Co., supra; Dickey v. Maine Tel. Co., 46 Me. 488; Crosswell on Electricity, § 79; McIlhenney v. City of Philadelphia, 214 Pa. 44, 45, 63 Atl. 368;Raymond v. City of Lowell, 6 Cush. (60 Mass.) 524, 526, 53 Am. Dec. 57;Stringer v. Frost, 116 Ind. 477, 479, 19 N. E. 331, 2 L. R. A. 614, 9 Am. St. Rep. 875;Simons v. Gaynor, 89 Ind. 165.

[4] Nor can this court, under the facts averred in either paragraph of the complaint, say, as a matter of law, that appellee was guilty of contributory negligence in crossing the street where he did. Southern Bell, etc., Co. v. Howell, 124 Ga. 1050, 53 S. E. 577, 4 Ann. Cas. 707;Moebus v. Herrmann, 108 N. Y. 349, 15 N. E. 415, 2 Am. St. Rep. 440; Simons v. Gaynor, supra; Elliott, Roads & Streets, 622; Collins v. Dodge, 37 Minn. 503, 35 N. W. 368; Raymond v. City of Lowell, supra.

Appellant's contention that the court erred in overruling its motion for judgment on the jury's answers to interrogatories rests upon the assumption that such answers show: (1) That appellant was not guilty of any negligence causing appellee's injury; and (2) that appellee was guilty of negligence contributing to his injuries.

The answers pertinent to the first contention are to the following effect: The defendant, at the time of the accident, had a franchise in the city of Lafayette, under which it was authorized to construct and maintain along the lines of the streets and alleys of the city of Lafayette its poles, wires, etc., necessary for supplying telephone service to the citizens of said city. One of appellant's poles was located on the north side of Romig street. Said pole was braced by a guy wire; Romig street was improved and divided into a gutter, roadway, and sidewalks. There was a cement sidewalk on the north side of said street. There was a space, or glassplat, 3 feet, 10 inches wide, between said sidewalk and the curb on the north side of Romig street. Said guy wire was anchored just inside said curb in said grassplat, and 3 feet, 10 inches from the edge of said sidewalk. Said wire did not cross any part of said sidewalk, or the roadway of said Romig street, or any intersection of said street with any other street, or any roadway, cement walk, or crosswalk on said street. Said wire did not interfere with the passage of any animal, vehicle, or person on any cement walk, roadway, or crosswalk. There was no crosswalk at the place where appellee started to cross the street, when he met with the accident. The law applicable to the facts thus found by the jury, as expressed by the text-books and recognized by the decided cases is as follows:

“A telephone or telegraph company using a highway is under a duty to exercise care to prevent injury to persons using the highway. A license from the municipal corporation to use the way does not relieve the company from that duty, but, on the contrary, the acceptance of the license implies a duty on the part of the electric company to exercise care and diligence to prevent injury to persons using the highway.”

It is, however, insisted by appellant, and correctly so, we think,...