Pacific Tel. & Tel. Co. v. Parmenter
| Decision Date | 03 May 1909 |
| Docket Number | 1,640. |
| Parties | PACIFIC TELEPHONE & TELEGRAPH CO. v. PARMENTER. |
| Court | U.S. Court of Appeals — Ninth Circuit |
This was an action at law brought by the defendant in error against the plaintiff in error to recover damages for injuries sustained by him by reason of the alleged negligence of the plaintiff in error.
The complaint alleged that defendant was a corporation organized and existing under the laws of the state of Oregon, and that it had complied with the laws of the state of Washington that it was engaged in the business of receiving and transmitting messages by telephone and telegraph, and for that purpose had constructed and maintained a line of telephone and telegraph wires through certain counties of the state of Washington, including one leading along one of the county roads of Lewis county, where plaintiff was doing business; that for the purpose of supporting and maintaining its telegraph wires the defendant had placed large poles in the ground, upon which said wires were supported; that on and prior to the 22d day of July, 1907 the defendant had carelessly and negligently permitted one of its poles so placed in the ground at a point described in the complaint to become so rotten, worn out, and decayed that it had become dangerous and was unsafe, and by reason thereof was liable to break and fall and occasion damage and injury to any person traveling along said road; that the condition of said pole was known to defendant, and by the use of ordinary care and diligence should have been known; that its condition was not known to the plaintiff; that on July 22 1907, while the plaintiff was lawfully traveling along said road, said telephone pole, by reason of its rotten, decayed, and dilapidated condition, broke, and just as the plaintiff was opposite the same it fell over, on and upon, with great force striking the plaintiff on the head and shoulder, breaking his shoulder bone and dislocating his shoulder, and threw the bones out of place, straining, rupturing, and permanently impairing the ligaments of his right arm and shoulder, thereby disabling the plaintiff for the remainder of his life. The employment of a physician and surgeon to properly treat the injuries sustained by plaintiff was alleged in the complaint, and his inability to perform his ordinary work as farmer and carpenter for a period of 41 days.
The answer of the defendant denied the allegation of the complaint, charging the defendant with negligence.
It appears from the evidence that the plaintiff was traveling along the county road in a one horse rig on his way home from Centralia in the state of Washington. When he reached a point opposite the pole in question, a tree which was being cut by a third party some 600 feet away accidentally fell upon the wires of the defendant's telephone line, causing the wires to bend and sag and putting a strain upon the poles; that the strain pulled over the pole which at the time was opposite to the plaintiff as he was passing along the road. The pole broke off at or near the surface of the ground, and, falling on plaintiff, caused the injuries complained of. The pole was of cedar and was set in place in 1892. The soil in which it was placed was of a gravelly character. The evidence tended to show that the pole was rotten and decayed at the butt. One witness testified that a pole of this character in that ground had an average life of 5 or 6 years; another witness testified that the pole would last from 4 to 10 years. It appeared that the pole stood at an angle in the road, and that a guy wire which held the pole in position had been cut some time before, and no effort had been made on the part of the defendant to replace it.
At the close of the testimony the defendant moved the court to instruct the jury to return a verdict in favor of the defendant on the ground that the primary, efficient, and moving cause of the injury was the falling of the tree, and the pole, whether defective or otherwise, was simply an instrumentality in working the injuries to the plaintiff. The court denied the motion, and the case was submitted to the jury upon the evidence. The jury returned a verdict in favor of the plaintiff in the sum of $3,750 and costs. The case is here upon writ of error.
E. E. Cushman, for plaintiff in error.
Hayden & Langhorne and B. H. Rhodes, for defendant in error.
Before GILBERT, ROSS, and MORROW, Circuit Judges.
MORROW Circuit Judge (after stating the facts as above).
It was the duty of the defendant to exercise due care in maintaining its poles, wires, and appurtenances in a reasonably safe condition, having regard to the fact that the poles were placed along the country road where the public was accustomed to travel. Jones on Telegraph and Telephone Companies, Sec. 190.
There was evidence that some of the poles of the size of the one in question, in the ground in which it was placed, would rot off in 5 or 6 years. The pole that fell had been in the ground 15 years. It was ascertained after the accident that it was rotten and liable to fall when subjected to a strain. The pole once had a guy wire to hold it in place, but this wire had been cut and had not been replaced. There was some evidence tending to show that the person who cut the tree which fell against the wire and pulled the pole down was guilty of negligence; but this fact, if established, did not relieve the defendant from liability. The rule is:
'If the concurrent or successive negligence of two persons combined together results in an injury to a third person, he may recover damages of either or both, and neither can interpose the defense that the prior or concurrent negligence of the other contributed to the injury. ' Thompson on the Law of Negligence, Sec. 75.
In Johnson v. Northwestern Telephone Exch. Co., 48 Minn. 433, 51 N.W. 225, the action was for an injury caused by the falling in a street in Minneapolis of one of the poles of the defendant on which were suspended its line wires, which fall was, as alleged, due to the rotten and unsound condition of the pole (permitted to be so by the defendant's negligence), rendering it of insufficient strength to bear the weight of the wires suspended upon it. For the purpose of sustaining the pole and preventing it from falling, the defendant had extended a guy wire from the top of the pole to a building to which the other end of the wire was attached with the license of the owner of the building. The owner of the building revoked the license and required the removal of the wires from the building. The defendant failed to remove the wires, and thereupon the owner of the building cut them, and the pole, deprived of the stay afforded by the guy wires, broke off near the ground and fell into the street, injuring the plaintiff. At the close of the evidence the trial court directed a verdict for the defendant upon the apparent assumption that between the negligence of the defendant and the injury of the plaintiff there intervened an independent, adequate cause of the injury, to wit, the act of a third person, which it was said was what is termed in law the proximate cause of the injury. The Supreme Court held that it was a case of concurrent negligence, in which case each party guilty of negligence was liable for the result, and that the negligence of each as the proximate cause for the injury would not have occurred but for that negligence.
The facts of that case are almost identical with the facts of the present case, and the law as there stated is applicable here. The evidence tended to show that the pole that fell was at that time in a rotten and unsafe condition and without the support of a guy wire.
The negligence of the...
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