Phelps v. Wis. Tel. Co.

• Decision Date: 09 November 1943
• Citation: 11 N.W.2d 667,244 Wis. 57
• Parties: PHELPS v. WISCONSIN TELEPHONE CO. et al.
• Court: Wisconsin Supreme Court

244 Wis. 57

11 N.W.2d 667

PHELPS

v.WISCONSIN TELEPHONE CO. et al.

Supreme Court of Wisconsin.

Nov. 9, 1943.

Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Judge.

Reversed and remanded.

Action commenced on July 24, 1941, by Ella Phelps, plaintiff, against Wisconsin Telephone Company, a corporation, defendant, to recover damages for the alleged wrongful death of her husband, Frank Phelps. The Bankers Indemnity Insurance Company, a foreign corporation, a compensation carrier, was interpleaded. The action was tried to a jury and a special verdict rendered. The verdict found negligence, proximate cause, no contributory negligence and assessed the damages at $7,500. Judgment was entered on January 8, 1943, in favor of plaintiff in the sum of $7,500 damages and $217.50 costs. The action was dismissed as to the interpleaded defendant. Defendant appeals. The material facts will be stated in the opinion.

Francis J. Hart, Miller, Mack & Fairchild, J. G. Hardgrove, and Erwin E. Nemmers, all of Milwaukee, for appellant.

Harry V. Meissner, of Milwaukee, for respondents.

WICKHEM, Justice.

Since the principal question upon this appeal is whether the evidence sustains the jury's verdict, a review of the facts will be necessary.

Frank Phelps, plaintiff's husband, was an employee of the town of Wauwatosa. He was killed on April 2, 1941, while operating a road grader belonging to the town. The accident occurred when Phelps backed his grader into a guy wire supporting a pole of the defendant company. The guy wire struck the back seat of the grader and crushed Phelps against the steering wheel. The negligence charged by plaintiff and found by the jury related to the absence of a guard on the ground end of the guy wire in question. There was concededly no guard upon the wire. The jury found (1) that the guy wire was exposed to traffic; (2) that it was placed in a public highway; (3) that it obstructed the public use of the highway; (4) that it was so placed as to incommode the public use of the highway.

It will thus be seen that the case largely turns upon the location of the guy wire with relation to the highway and to traffic, generally.

The accident happened in Clark's subdivision, which lies on the south side of West Hampton Road and has a dimension of about 1,145 feet, east and west, and about 1,750 feet, north and south, so far as the plat indicates. North 117th Street, formerly called Pierce Avenue, runs south from West Hampton Road to the south line of the subdivision. Actually, the road as opened, improved and used runs a bit south of Spruce Street. The most southerly east and west street shown on the plat is a marsh area which has never been developed, and is not available for residential or industrial uses without extensive filling and drainage. In 1939 there were demands for telephone service to lots which had been sold on the east side of north 117th Street and defendant Telephone Company erected ten poles from West Hampton Street south along the east side of 117th Street. The last customer served was one Eilbes, whose lot was near the southern end of the graded portion of 117th Street and in the block just north of Spruce Street. The Telephone Company placed a pole to serve Eilbes, put a guy pole south of Spruce Street and supported this with the guy wire involved in the accident. The graveled portion of 117th Street ends in the vicinity of the guy pole. There is claimed to be an issue of fact whether it extends south of the guy wire or whether it ends at the guy pole. No curb or sidewalk was erected in the vicinity of the pole but had there been a sidewalk and curb, both guy pole and guy wire would be in the portion of the highway between the curb and the sidewalk. The stake for the guy wire is approximately twenty feet south of the guy pole. The guy wire was not protected by a guard on the ground end. Safety order 1282E of the State Electrical Code provides: “The ground end of all guys attached to ground anchors exposed to traffic shall be provided with a substantial and conspicuous wood or metal guard not less than eight feet long.” This order was not complied with and defendant's position is that the order is not applicable because the guy wire was not exposed to traffic. From the evidence it appears that Phelps drove his grader which was nineteen feet in length and weighed from 8,000 to 9,000 pounds south on 117th Street to the vicinity of the guy wire. He evidently then turned to the west and backed at least once and perhaps more than once to turn around, since the vicinity of the pole was the limit of the grading activity. In the course of this operation he backed into the guy wire.

Upon these facts, the principal question is whether there is any evidence that the guy wire was exposed to traffic. If it was not, the safety order requiring a guard is wholly inapplicable, and the guy wire could neither obstruct nor incommode public travel (although if an affirmative answer were to be given to this question there would still be a question whether the guy wire could be said to obstruct or incommode public travel). The principal question is, of course, determined by the location of the guy wire with reference to the highway and to the state of trafficin the vicinity. A careful examination of the record satisfies us that the answers of the...