Louisville Home Telephone Co. v. Gasper

• Decision Date: 05 June 1906
• Citation: 123 Ky. 128,93 S.W. 1057
• Parties: LOUISVILLE HOME TELEPHONE CO. v. GASPER.
• Court: Kentucky Court of Appeals

93 S.W. 1057

123 Ky. 128

LOUISVILLE HOME TELEPHONE CO. v. GASPER.

Court of Appeals of Kentucky.

June 5, 1906

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Second Division.

"To be officially reported."

Action by John D. Gasper against the Louisville Home Telephone Company and others. From a judgment in favor of plaintiff the defendant named appeals. Affirmed.

Helm Bruce & Helm and Helm Bruce, for appellant.

Caruth Chatterson & Blitz, for appellee.

SETTLE J.

Appellee, John D. Gasper, sued appellant Louisville Home Telephone Company, A. J. Dressell, and the city of Louisville, in the court below, to recover damages for a personal injury alleged to have been sustained by him through the joint negligence of the defendants. It was, in substance, alleged in the petition that appellee, while walking in a public alley adjoining his home in the city of Louisville, was knocked down and crushed by and under a heavy wagon owned and operated by Dressell, which greatly bruised his body, broke his hip, and permanently injured him. That, at the time of receiving his injuries, the appellant Louisville Home Telephone Company had and maintained in the alley mentioned a telephone pole to which it negligently strung and maintained a guy wire running obliquely from the top thereof down to a block in the ground so as to form and cause a dangerous obstruction to pedestrians and vehicles using or passing through the alley, and that the wagon of Dressell, while being driven through the alley by his servant in a negligent manner, ran upon and against appellant's guy wire, which caused the wagon to be overturned and thrown upon appellee, resulting in his injuries. Furthermore, that the city of Louisville consented to the erection of the dangerous obstruction in the alley by appellant telephone company, and knew of its existence at the time appellee was injured, yet negligently suffered it to be then and theretofore maintained. The defendants severally answered, denying the negligence charged, and pleading contributory negligence on the part of appellee, but for which, it was alleged, his injuries would not have been received. The latter, by replying to each answer, denied that he was guilty of contributory negligence in the matter of receiving his injuries. Thereupon, the case went to trial before a jury, and upon the conclusion of appellee's evidence each of the defendants asked for a peremptory instruction, which the trial judge refused, and, after the introduction of evidence in behalf of the defendants, nine of the jury returned, with their names attached thereto, the following verdict: "We, the jury, find for the plaintiff in the sum of $2,000.00, to be assessed as follows: $1,750.00 against the Home Telephone Company, and $250.00 against A. J. Dressell, and the city of Louisville exempt from any damage. We find for defendant city of Louisville." Judgment was entered in accordance with the verdict, and appellee filed motion and grounds for a new trial as to the defendants Dressell and city of Louisville, and appellant telephone company also entered motion for a new trial, in support of which numerous grounds were filed. Both motions were overruled, but only the telephone company has appealed.

There is but little conflict in the testimony, and it cannot be denied that appellee suffered greatly from his injuries, or that they are of a permanent nature, and, being an old man, he may be expected to endure yet further suffering from the fractured hip. No serious objection is made by appellant to the instructions, though it is insisted by its counsel that the jury should have been peremptorily instructed to find for appellant. This contention, however, is based upon the theory that, though appellant may have been negligent in maintaining a guy wire in the manner shown by the evidence, such negligence was not the proximate cause of the injury to appellee. This contention of appellant therefore involves the real and only question presented for our consideration by the appeal. According to the testimony, appellee's injuries were received in the following manner: Having entered the 20-foot alley, he saw a wagon loaded with kindling wood, which was standing on its west line. There were some men with the wagon, and appellee stopped by it and engaged in conversation with them. On the east side of the alley, and nearly opposite the wagon, there was anchored to a block of wood in the ground appellant's guy wire, which ran at an angle of 45 degrees to the top of a high telephone pole, which was a part of its plant, and also situated in the alley. The wire was anchored 120 feet north of the mouth of the alley, 18 inches out into the alley, and on account of the sagging of the top of the pole, about 15 inches toward the west, the guy wire was made to hang further out in the alley to the west as it became higher. While appellee was standing at the wood wagon, a heavy delivery wagon owned by Dressell was rapidly and negligently driven into the alley, taking the east side because of the standing wagon on the west side, and the hub of its right hand wheel collided with the guy wire, which caused the wheel to slide up the wire, and until it overturned the wagon toward the west, throwing it upon appellee, thereby producing his injuries. The evidence also conduced to prove that there are other and safer ways of anchoring wires into the ground than the one adopted by appellant with respect to the pole in the alley. Thus, by a stub (which is a pole or post) placed in and rising about 8 or 10 feet above the ground at the edge of the alley, a guy wire may be so elevated as to remove all danger of collision with vehicles or persons. Yet another way to prevent injury from a guy wire is to inclose it by pipes or covers, or to attach it to the ground so near the edge of the alley as to remove any danger of contact with persons or vehicles using the alley. Certain it is that a wire three-eighths of an inch thick running from a point in the ground 18 inches out in the alley, and along a fence so near its color as to render the wire practically undiscernible, may, without aid of the imagination, be regarded as an obstruction dangerous to individuals and vehicles passing over or through the alley. At any rate, in view of the foregoing facts, we are unable to say the finding of the jury that appellant was negligent in thus maintaining its guy wire was unsupported by the evidence.

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