Nebraska Telephone Company v. Jones
Decision Date | 03 January 1900 |
Docket Number | 9,031 |
Citation | 81 N.W. 435,59 Neb. 510 |
Parties | NEBRASKA TELEPHONE COMPANY v. JOHN JONES |
Court | Nebraska Supreme Court |
ERROR from the district court of Sarpy county. Tried below before SLABAUGH, J. Reversed.
REVERSED AND REMANDED.
W. W Morsman, for plaintiff in error.
John P Breen, contra.
In this, an 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 permit a number of these stumps to remain in said public highway 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 fact, 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 Hoogeboom, and, with a team and wagon which belonged to his employer, the wagon loaded with oats, from a place about ten 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 the 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 or 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:
A portion of the cross-examination was as follows:
The defendant in error was recalled and we quote from the record:
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Nebraska Tel. Co. v. Jones
... ... 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.[81 N.W. 435]W. W. Morsman, for plaintiff in error.John P. Breen, for defendant ... ...
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