Mize v. Rocky Mountain Bell Telephone Co.

• Decision Date: 03 April 1909
• Citation: 100 P. 971,38 Mont. 521
• Parties: MIZE v. ROCKY MOUNTAIN BELL TELEPHONE CO. et al.
• Court: Montana Supreme Court

100 P. 971

38 Mont. 521

MIZE v. ROCKY MOUNTAIN BELL TELEPHONE CO. et al.

Supreme Court of Montana

April 3, 1909

Appeal from District Court, Gallatin County; Henry L. Myers, Judge.

Action by George Mize, as administratrix of John Mize, deceased against the Rocky Mountain Bell Telephone Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

H. G. & S. H. McIntire, for appellant Rocky Mountain Bell Telephone Co. J. L. Templeman and Hartman & Hartman, for appellant Gallatin Light, Power & Ry. Co.

Walrath & Patten, for respondent.

HOLLOWAY J.

On May 20, 1907, and for some time prior thereto, the defendants Rocky Mountain Bell Telephone Company, hereinafter referred to as the "Bell Company," maintained a telephone exchange in Bozeman, and owned and maintained pole lines in various streets and alleys and had wires suspended from such poles, as a part of its telephone system. At all such times the Gallatin Light, Power & Railway Company, hereinafter referred to as the "light company," owned and operated an electric light and power plant, and, as a part of its plant, it owned and maintained certain pole lines in the streets and alleys of Bozeman and the wires attached to such poles. At all such times the Bozeman Milling Company and the Benepe-Stanton Grain Company, hereinafter referred to as the "private companies," owned and operated a private telephone line from Bozeman to Belgrade, a distance of 11 or 12 miles. On May 20, 1907, John Mize was killed at a point near the private telephone line and 9 or 10 miles from Bozeman. His wife, as administratrix of his estate, brought this action against the Bell Company and the light company to recover damages. It is alleged in the complaint that for a period of about two years prior to and including May 20 1907, the Bell Company had assumed and exercised full charge supervision, and control of the private telephone wire from Third Avenue North, to Tracy Avenue North, a distance equal to three city blocks, in the city of Bozeman. It appears from the complaint that the portion of the private telephone line just mentioned was strung upon poles belonging to the Bell Company, which poles were set along an alley cutting both Third avenue and Tracy avenue at right angles. It appears also that the light company had wires strung to poles along Grand Avenue North-an avenue running parallel with and between Third and Tracy avenues and cut by the alley at right angles also. On May 20, 1907, the private telephone wire, which crossed above the light wires at right angles, became detached from the Bell Company's poles, near the intersection of the alley and Grand avenue, fell upon a wire belonging to the light company, and received a charge of about 2,000 volts of electricity from the light wire. About 9 or 10 miles from Bozeman, the private telephone line, following the course of the public road, turned from north to west. For the purpose of securing the corner pole, a guy wire was attached to the pole near the top and between the two private wires, and then attached to a fence post on the outer line of the right of way of the Northern Pacific Railway Company. It appears that the guy wire touched one of the private telephone wires and also came in contact with one strand of fence wire. This fence ran south a short distance where it connected with another wire fence, called the "inner right of way fence," and at a point on this inner right of way fence, about three-fourths of a mile from the point of intersection of the two fences, John Mize was at work in an irrigating ditch belonging to his employer, Young, on the late afternoon of May 20, 1907, when, coming in contact with a wire on the fence, he was killed. It is alleged that the current of electricity received by the private telephone line wire from the light wire was conducted along the telephone wire to the guy wire, thence over the guy wire to the outer right of way fence wire, thence over that wire to the wire of the inner right of way fence, and along the wire of the inner right of way fence to the point where Mize was at work, and that when he came in contact with this wire he received the charge of electricity and was killed thereby. It is charged that the defendants were negligent in the following particulars: (1a) The Bell Company in permitting this private telephone wire to become detached from its poles. (b) The light company in permitting the insulation on its wires to become defective. (2) In failing to provide a guard or device at the point where the wires crossed, to prevent the wires from coming in contact. (3) In violating a city ordinance of the city of Bozeman. (4) In failing to break the contact between the two wires for a period of six hours or more. From a judgment rendered and entered in favor of the plaintiff, and from an order denying them a new trial, the defendants have appealed.

A review of the authorities cited would not serve any useful purpose. There is not any substantial conflict in the authorities upon the general rules of law applicable in negligence cases, and we might select cases from the briefs of appellants or respondent in support of the principles which we announce, with one or two possible exceptions. The difficulty which the courts generally experience is, not in ascertaining the rules of law, but in applying them to the facts of particular cases.

1. Legal duty: It is urged by counsel for appellants that they did not owe any legal duty to Mize. This contention is aptly answered in City Electric St. Ry. Co. v. Conery, 61 Ark. 381, 33 S.W. 426, 31 L. R. A. 570, 54 Am. St. Rep. 262, a case in many respects similar to the one before us. The street railway company maintained a power line through certain streets in Little Rock. White owned a private telephone line running at right angles to one of the railway company's lines. The private telephone wire came in contact with the power line and received a supercharge of electricity. Conery came in contact with the private telephone wire and was injured. He recovered against the street railway company and White, the owner of the private telephone wire. On appeal by the street railway company the question now before us was raised. The court said: "The next question is: Upon what duty of the appellant to the appellee can this action be based? The answer to it is: Upon the duty enjoined by the rule which requires every one to so use his property as not to injure another. The applicability of this rule may be shown by many illustrations. One is where an owner of a vicious animal accustomed to do hurt, knowing his habits, negligently allows him to escape. He is responsible for the mischief the animal does, because it was the duty of the owner to keep him secure. *** This rule applies with equal force to electric companies. They are bound to use reasonable care in the construction and maintenance of their poles, cross-arms, and wires, and other apparatus, along streets and other highways. They are required to do so for the protection of persons and property." 21 Ency. Laws (2d Ed.) 476.

2. Proximate cause: One of the principal contentions made in this case is that, assuming the negligence of the defendants, such negligence was not the proximate cause of Mize's death, for the reason that the guy wire intervened and broke the causal connection between the negligence of the defendants and the death of Mize. The "proximate cause" of an injury is that which in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury, and without which the injury would not have occurred. Goodlander M. Co. v. Standard Oil Co., 63 F. 400, 11 C. C. A. 253, 27 L. R. A. 583; Shearman & Redfield on Negligence, § 26; 6 Current Law, 757; Missouri P. Ry. Co. v. Columbia, 65 Kan. 390, 69 P. 338, 58 L. R. A. 399; Claypool v. Wigmore, 34 Ind.App. 35, 71 N.E. 509.

What intervening cause will break the chain of sequence and so far insulate the first wrongdoer's negligence from the injury as to relieve such wrongdoer? The courts have experienced some difficulty in answering this inquiry, and they are not altogether in harmony upon the subject; but to this extent they may be said to agree: That to relieve the original wrongdoer the result must be such that he could not reasonably have anticipated it. In 29 Cyc. 499, the rule is stated as follows: "The mere circumstance that there have intervened between the wrongful cause and the injurious consequence acts produced by the volition of animals or persons does not necessarily make the result so remote that no action can be maintained. The test is not to be found in the number of intervening events or agencies, but in their character and in the natural connection between the wrong done and the injurious consequence, and if such result is attributable to the original negligence as a result which might reasonably have been foreseen as probable, the liability continues." What ought to be foreseen or anticipated as the probable consequence of the wrongdoer's negligence? In the first instance, it is not necessary to show that he ought to have anticipated the particular injury which did result; but it is sufficient to show that he ought to have anticipated that some injury was likely to result as the reasonable and natural consequence of his negligence. This is the meaning of section 6068, Rev. Codes, and expresses the rule announced by this court in Reino v. Montana M. L. Dev. Co., 38 Mont. 291, 99 P. 853.

The evidence is conclusive upon one point: That with the current of electricity necessary to operate this private telephone line, and telephone lines generally, the wires are entirely harmless. The evidence also shows that telephone wires are frequently exposed where persons-even children-may...