Locke v. Pacific Telephone & Telegraph Co.

• Decision Date: 21 June 1934
• Docket Number: 24821.
• Court: Washington Supreme Court
• Parties: LOCKE v. PACIFIC TELEPHONE & TELEGRAPH CO. et al.

33 P.2d 1077

178 Wash. 47

LOCKE v. PACIFIC TELEPHONE & TELEGRAPH CO. et al.

No. 24821.

Supreme Court of Washington, En Banc.

June 21, 1934

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by M. R. Locke against the Pacific Telephone & Telegraph Company, the City of Seattle, and another. From an order denying the City's motion for judgment notwithstanding a verdict against it or for a new trial, and a judgment against the City, it appealed, and, from a judgment for defendant Telephone Company notwithstanding a verdict against it plaintiff and the City appeal.

Affirmed.

A. C. Van Soelen and E. I. Jones, both of Seattle for appellant.

Davis Groff & Moran and D. J. K. Zimmerman, all of Seattle, for respondent and cross-appellant.

McMicken Ramsey, Rupp & Schweppe and J. Gordon Gose, all of Seattle, for respondent.

HOLCOMB Justice.

This action, tried to the court and jury, is to recover for personal injuries and property damage resulting from a collision of an automobile with a telephone or electric light pole which had fallen into the street.

Originally, there were three defendants; namely, Puget Sound Power & Light Company, the Pacific Telephone & Telegraph Company, and the city of Seattle. At the conclusion of plaintiff's case, the court dismissed the Puget Sound Power & Light Company, but denied like motions of the other defendants, and further denied the motion of the telephone company for a dismissal at the conclusion of all the evidence. A verdict was returned against the two remaining defendants for $7,000. Thereafter the court denied the city's motion for judgment notwithstanding the verdict, or in the alternative for a new trial, upon the acceptance by the plaintiff of a $2,000 reduction in the verdict, but granted a judgment notwithstanding the verdict to the telephone company, denying, in the alternative, the motion for a new trial.

The city appeals from the denial of its motion for judgment notwithstanding the verdict or in the alternative for a new trial and also from the judgment against it. Both the city and plaintiff appeal from the judgment notwithstanding the verdict in favor of the telephone company.

The issues arise from the following facts: Some time between 5 and 5:30 o'clock on the morning of January 11, 1932, respondent and cross-appellant Locke was driving an automobile westerly on East Pine street, a public thoroughfare with paving about 20 feet wide between curbs, in Seattle. This street was intersected by another designated Twentieth avenue. As Locke neared this intersection, a wooden pole 18 or 20 feet high, erected in the parking strip on the opposite or south side of Pine street, and such as is used for suspending telephone and electric transmission wires, broke off near the ground where it was weak from rot and decay and fell across the street, into the path of the vehicle driven by Locke, thereby resulting in bodily injuries to him and damage to the car.

This pole, erected in 1905, was owned and used by the city as a support for wires conveying electricity for the city's lighting department. About 1926 the city removed its wires therefrom and did not thereafter make use of the pole, although it is admitted that the city continued to own it up to the time of the accident. The telephone company, some time after 1926, used the pole to support a wire connecting its main line traversing a nearby street with a telephone instrument in a house on the opposite or north side of East Pine street, and the pole was being so used at the time of the accident.

It is urged by cross-appellant Locke that there are two concurring, proximate causes: First, the decayed condition of the pole; and, second, the presence of the telephone wire which, because of its weight or tension, either pulled the pole over or caused it to fall in the direction it did. However, the contention that the wire itself contributed to the falling of the pole is a cause not presented by the pleadings or in the trial of the case. Hence it may not now be used as a probable theory upon which the jury premised its verdict.

The proximate cause of whatever damage was suffered was the extremely decomposed condition of the pole which resulted in its toppling into and across the street. There is also no question of contributory negligence.

The theory of the city is that, as it had long ceased to use the pole and as the telephone company was using it, the primary duty to maintain it was upon the telephone company; and that, if there was no negligence of the telephone company, there could be none chargeable to the city, citing Gerritsen v. Seattle, 164 Wash. 459, 2 P.2d 1092; American District Telegraph Co. v. Oldham, 148 Ky. 320, 146 S.W. 764, Ann. Cas. 1913E, 376; Powers v. Independent Long Distance Telephone Co., 19 Idaho, 577, 114 P. 666; West Kentucky Telephone Co. v. Pharis (Ky.) 78 S.W. 917; Eads v. Galt Telephone Co. (Mo. App.) 199 S.W. 710; North Arkansas Telephone Co. v. Peters, 103 Ark. 564, 148 S.W. 273.

There might be some merit in the city's contention if the wire suspended from the pole was the cause of the pole falling, for then it might be said that the placing of the wire was the proximate cause, and, being the act of the telephone company, it might follow that, if the telephone company was not liable, certainly the city could not be held. This theory is in consonance with some of the cases above cited, but not applicable to the case at bar, for, as stated, the placing of the wire on the pole could not be said to have been a proximate cause. The negligence charged to the city is its failure to inspect and maintain, not only its proprietarily owned property, but property in which the telephone company had no interest and had no right to use. Therefore, aside from any duty which the telephone company may have owed, the city itself owed the duty to maintain the pole in a safe condition, and the city's liability is for its own independent acts of negligence as distinguished from a liability based upon the negligent acts of others. The distinction between the principle applicable here and that urged by the city is well pointed out in Jones v. City of Seattle, 51 Wash. 245, 98 P. 743, 745, where we said:

'It is strenuously urged that, by reason of the court sustaining a motion for a directed verdict on the part of the contractor and condefendant Erickson, no judgment can be sustained against the city, under the rule announced in Doremus v. Root, 23 Wash. 710, 63 P. 572, 54 L. R. A. 649; but an examination of the opinion in that case shows that there is no similarity in principle between the two cases. In the Doremus Case, under the allegations of the complaint, the negligence of the servant for which the master was responsible was the only ground upon which the master could have been held responsible. Here no such issues are presented. It is contended by the appellant that the court erred in dismissing the contractor Erickson from the case, because the testimony in relation to his negligence was conflicting, and should therefore have been submitted to the jury. Upon this question we do not now pass, for, even conceding that the court

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