Nashville Interurban Ry. v. Gregory

• Decision Date: 13 April 1917
• Citation: 193 S.W. 1053,137 Tenn. 422
• Parties: NASHVILLE INTERURBAN RY. ET AL. v. GREGORY.
• Court: Tennessee Supreme Court

193 S.W. 1053

137 Tenn. 422

NASHVILLE INTERURBAN RY. ET AL. v. GREGORY.

Supreme Court of Tennessee.

April 13, 1917

Certiorari to Court of Civil Appeals.

Action by Robert Gregory, by next friend against the Nashville Interurban Railway and others. Judgment for the plaintiff against the named defendant was reversed by the Court of Civil Appeals, and both parties petitioned for certiorari. Reversed and remanded for further proceedings in accordance with opinion.

J. C Eggleston, of Franklin, for defendants.

GREEN J.

This suit was brought to recover damages for injuries sustained by Robert Gregory, a young boy who came in contact with a wire charged with electricity on the streets of Franklin.

The suit was originally brought against the Nashville Interurban Railway, the Middle Tennessee Railroad Company, and the Cumberland Telephone & Telegraph Company. In pursuance of an agreement hereafter referred to, the suit was dismissed below as to the Cumberland Telephone & Telegraph Company. A verdict was directed in favor of the Middle Tennessee Railroad Company. There was a verdict and judgment for plaintiff against the Nashville Interurban Railway, from which that company prosecuted an appeal in error to the Court of Civil Appeals. The Court of Civil Appeals reversed and dismissed the suit, and the case is before us on petitions for certiorari filed both by Gregory and by the Nashville Interurban Railway.

The Interurban Railway Company's lines run into the town of Franklin, and it maintains over the streets in that place a trolley wire and a feed wire, both of which wires are charged with a powerful current of electricity. Over the trolley and feed wires at the point of this accident were strung a number of wires of the Cumberland Telephone & Telegraph Company. Some of the witnesses estimated the number of telephone wires at about 50.

Proof introduced for the plaintiff below tends to show that a wire of the telephone company broke and fell across the trolley wire or feed wire of the interurban company, and the end of the telephone wire swung down into the street. The Gregory boy in passing came in contact with the telephone wire highly charged by reason of contact with the trolley wire, and received a severe shock, from which permanent injuries resulted. Neither the feed wire nor the trolley wire of the Interurban Company was insulated. The trolley wire, perhaps could not have been insulated while in service. Witnesses who examined the telephone wire testified that it was rusted, and apparently broke on account of its weakened condition caused from corrosion.

The declaration described the locality of the accident and the situation of the wires, and set out other details at some length, and then averred that:

"Notwithstanding the imminent danger arising from the situation of said wires, none of said defendants had provided guard wires, shields, or taken any precautions to prevent loose or broken wires from falling, and communicating dangerous and deadly volumes of electric current to the street and sidewalk below. Plaintiff avers that the negligence of defendants in wrongfully, carelessly, recklessly, and negligently erecting their said wires along, across, and over North Margin street, as aforesaid, without providing proper and adequate means of preventing the deadly current of electricity carried by the trolley wire and feed wire of defendant Nashville Interurban Railway from being communicated to persons using said streets, was the proximate cause of the burns and injuries received," etc.

It will be observed that the plaintiff below charged negligence against the interurban railway in failing to provide guard wires or shields to prevent the telephone wires from falling and coming in contact with the trolley and feed wires, and also charged said company with failing to take any precautions to prevent loosened or broken wires from falling and coming in contact with the trolley wires.

The Court of Civil Appeals treated the matter as if the plaintiff's case was to be tested by the obligation of the interurban company to interpose guard wires or shields between its trolley and feed wires and the telephone wires above. The court found no evidence tending to show that the use of guard wires or shields, under such circumstances, was the proper and customary mode of construction, and therefore concluded there was no evidence to sustain the case of the plaintiff below.

We think this view is too narrow. We do not mean to be understood as saying it was the duty of the interurban company to place guard wires or shields between its trolley and the telephone wires overhead. In fact the testimony on this record indicates such construction is not now deemed advisable by the best authorities on the subject, but that, on the contrary, the danger to the traveling public is increased in proportion to the number of wires strung above the trolley. It is said that such guard wires or shields themselves are likely to break, and their interposition only augments the hazard of those using the street. A number of courts have taken this view of the subject, and considered that it was not desirable for the company operating the wire with the deadly current to undertake to shield it with other constructions placed between it and the overhead wires. Heidt v. Southern Telephone, etc., Co., 122 Ga. 474, 50 S.E. 361; Stark v. Lancaster Electric, etc., Co., 218 Pa. 576, 67 A. 909; Pressley v. Bloomington, etc., Co., 271 Ill. 622, 111 N.E. 511.

We do not think our case of Electric Railway Co. et al. v. Shelton, 89 Tenn. 423, 14 S.W. 863, 24 Am. St. Rep. 614, meant to announce as a matter of law that it was the duty of a trolley company to erect guard wires or shields between its wires and the telephone wires overhead. That case was a nonjury case, and the court was disposing of it as a jury on the facts contained in that record and, upon the proof there made, held that such a duty was devolved upon the trolley company.

We think this question may, if the proof warrants, go to the jury to say whether it was negligence to omit the stringing of such guard wires above the trolley wires, and that such is the meaning of Electric Railway Co. v. Shelton, supra.

As stated above, however, the declaration charged that the defendant company failed to take any precautions to prevent the loose or broken wires overhead from falling and coming into contact with the trolley wire and communicating the dangerous current to the street and sidewalk below.

The rule is well settled in Tennessee that negligence on the part of a trolley company may be inferred from the fact that a guy wire or trolley wire dangerously charged with electricity falls on or near a public street. Chattanooga Electric Railway v. Mingle, 103 Tenn. 667, 56 S.W. 23, 76 Am. St. Rep. 703; Street Railway Co. v. Kartwright, 110 Tenn. 277, 75 S.W. 719, 100 Am. St. Rep. 807. See, also, Saulman v. Nashville, 131 Tenn. 427, 175 S.W. 532, L. R. A. 1915E, 316, Ann. Cas. 1916C, 1254.

These cases also declare that a trolley company is charged with the highest or utmost degree of care in the construction, maintenance, and operation of its wires, and that this degree of care must be exercised with reference to supervision of the wires.

This court has also held that the duty of a telephone company and of a trolley company, in so far as the public is concerned, to guard against the falling of a telephone wire across the trolley wire is the same.

"While it was the duty of the one company not to use unsound and unprotected wires, it was equally the duty of the other not

to operate its road under such defective machinery." Referring to the trolley company, the court continued:

"The obligation to see that its road was in good repair, and its machinery in safe operating order, is not confined to the immediate and abstract presence of either, but extends to all surroundings that may depreciate the security of either." Electric Ry. Co. v. Shelton, supra.

If not therefore the duty of a trolley company to inspect and supervise the construction and maintenance of the overhead wires at such points as the latter cross the trolley, it is at least the duty of a trolley company to take steps to have the overhead wires inspected and kept in a safe condition by the company owning and operating them. It is, of course, negligence on the part of a trolley company to maintain its wires charged with a dangerous current over the public highway and underneath other wires known to be defective and insecure. Likewise it is negligence for such a company to rest unmindful of the state of the overhead wires. It must exercise a high degree of care to see that these "surroundings that may depreciate the security" of the public are kept in good repair. For this purpose the law will lend willing aid.

The proof in this case, as heretofore stated, indicates the telephone wire which fell across the trolley was weakened by corrosion, and accordingly parted and fell. Negligence of the telephone company in inspection and supervision may be inferred from this circumstance. So, also, in the absence of a showing by the interurban company of any inspection or supervision of the overhead wires on its own part, or any effort to have said wires inspected or secured, negligence may be ascribed to it.

Res ipsa loquitur applies to both companies.

While the interurban company did not have exclusive control of the overhead wires, it did have such control of its own lines. It might have shut off its current at any time. It was not entitled to employ and convey a deadly current of electricity where, by reason of the surroundings, the public was likely to be endangered, without exercising a high degree of care to have such locality made safe....