Nebraska Tel. Co. v. Jones

• Decision Date: 03 January 1900
• Citation: 59 Neb. 510,81 N.W. 435
• Parties: NEBRASKA TEL. CO. v. JONES.
• Court: Nebraska Supreme Court

59 Neb. 510

81 N.W. 435

NEBRASKA TEL. CO.

v.JONES.

Supreme Court of Nebraska.

Jan. 3, 1900.

Syllabus by the Court.

Where the evidence of the plaintiff in a suit for damages for personal injuries alleged to have been the result of negligence of a defendant conclusively established contributory negligence of the plaintiff, which was the immediate cause of the injuries, there can be no recovery, and it is error to refuse a request to charge the jury to return a verdict for the defendant.

Error to district court, Sarpy county; Slabaugh, Judge.

Action by John Jones against the Nebraska Telephone Company. Judgment for plaintiff, and defendant brings error. Reversed.W. W. Morsman, for plaintiff in error.

John P. Breen, for defendant in error.

HARRISON, C. J.

In this action, commenced in the district court of Sarpy county, the defendant in error sought and recovered a judgment for damages against the plaintiff in error (hereinafter designated as the “Company”), the ground of the suit being the alleged negligence of the company, by reason of which the defendant in error suffered personal injuries. The petition was in part as follows: “That some time before the accident hereinafter detailed occurred the said company constructed a telephone line along and upon the public highway through said Sarpy county commonly known as the ‘Bellevue Road,’--a regularly laid out and duly-dedicated public highway of said county, and one of the chief public thoroughfares of that county, running north and south across the county, and passing through the little town of Bellevue, in said county. That in constructing said line said company, in the usual manner, placed large telephone poles in said public highway at short distances apart in said road, and strung upon said poles its lines of telephone wires, but that said company never had permission, license, or right of way granted from said county or its duly-authorized agents to construct said telephone line along said public highway, and that in erecting said poles and wire upon and along said public highway it was from the beginning a trespasser thereon. That, some time before the accident hereinafter detailed occurred, the said company, desiring to remove or relocate its said line, cut down a number of said telephone poles at a point on said public highway near where the same approaches and passes the said town of Bellevue. But plaintiff alleges that, in the work of cutting down and removing said poles at this point, the company carelessly and negligently, and with utter disregard for the safety of public travel along said road, cut said poles off so as to leave a stump or portion of said poles extending above the surface of the ground to the height of one foot or eighteen inches, and carelessly and negligently permitted, and still permits, a number of these stumps to remain in said public highway, and at and near said point, which range in height one foot to eighteen inches. That upon the 2d day of June, 1896, plaintiff, an aged man, was driving along said public highway at the point above indicated with a wagon and team, when, without fault or negligence on his part, his wagon struck one of these telephone pole stumps or projections with considerable force, and the shock and tilting of the wagon occasioned thereby threw the plaintiff violently from the wagon to the ground, breaking and dislocating his arm, and otherwise severely injuring him internally, and causing him to suffer great pain.” The answer was, in effect, as to the portion of the petition we have quoted, a general denial. During the trial, at the close of the evidence in chief for the defendant in error, it was moved that the jury be directed to return a verdict in favor of the company on the ground that it was affirmatively disclosed by the evidence for defendant in error that the injuries of which he complained resulted from his own negligence, or, rather, that there had been contributory negligence on his part. This was overruled. At the close of the evidence the court was requested to instruct the jury that, upon the whole of the evidence, the defendant in error was not entitled to a recovery, and the verdict must be for the company. This was also refused.

Of the errors assigned for the company are these refusals to direct a verdict in its favor, the argument being that there appeared such contributory negligence by the defendant in error as precluded a recovery. The evidence disclosed that on the day the defendant in error was injured he was employed by one William Hogeboom, and, with a team and wagon which belonged to his employer (the wagon loaded with oats), from a place about 10 miles distant therefrom, drove to South Omaha, where the oats were disposed of, and the wagon loaded with baled hay. The sideboards were on the bed of the wagon, or it had on what is commonly known as the “double box,” which was more than filled with baled hay, or the top of the load was above the wagon box,--so much so that the spring seat did not rest, as usually, on the sides of the wagon bed, but upon the hay. A part of the highway upon which the defendant in error traveled in going to and from South Omaha at the time in question was quite a hill,--some “three hundred yards from the top to the bottom.” The road in the center and to one side of the hill was rough, and often wet and muddy, and the track mainly traveled was upon the other side of the highway. About halfway down the hill stood the “stump” referred to in the petition, and it was while driving down the hill on the return trip that the defendant in error was injured. He stated that he was sitting “in the spring seat, on the right-hand side as I was going south.” We will now quote at some length from his testimony: “I was going south. I could not reach the brake, going down hill, and I pulled the horses out a little, and this was hard to hold. I was bracing and pulling the bit and on the lines. I could not reach the brake. I did not see the stump. It was just about twelve inches high. Then the wheel on this side of the road, it cut down and made it lower, and it pitched me out on my head and shoulders quicker than that [snapping his fingers]. I went on the west side of the...