Postal Telegraph Cable Co. v. Young

• Decision Date: 06 December 1916
• Citation: 172 Ky. 576,189 S.W. 707
• Parties: POSTAL TELEGRAPH CABLE CO. v. YOUNG.
• Court: Kentucky Court of Appeals

189 S.W. 707

172 Ky. 576

POSTAL TELEGRAPH CABLE CO. v. YOUNG.

Court of Appeals of Kentucky.

December 6, 1916

Appeal from Circuit Court; Pendleton County.

Action by Velma Young, by her next friend Anderson Young, against the Postal Telegraph Cable Company. Judgment for plaintiff and defendant appeals. Affirmed.

Applegate & Clarke, of Falmouth, for appellant.

M. C Swinford, of Cynthiana, and A. H. Barker, of Falmouth, for appellee.

CLAY C.

In this action for damages for personal injuries against the Postal Telegraph Cable Company, plaintiff, Velma Young, suing by her next friend, Anderson Young, recovered a verdict and judgment for $500. The defendant appeals.

The accident occurred on the Pleasant Hill turnpike in Pendleton county, just after dark on the evening of November 26, 1914. Plaintiff and her escort were in a buggy en route to an entertainment. In front of them, and about 75 feet distant was another buggy going in the same direction. The horse which plaintiff's escort was driving became frightened at a piece of paper on the side of the road, and began to run. The backing strap broke, and the driver lost control of the horse. In its fright the horse attempted to pass the vehicle in front. In doing so the buggy came in contact with one of defendant's telegraph poles. Plaintiff was thrown from the buggy and injured. The roadway at the place of the accident is about 29 feet from fence to fence. The traveled part of the road is 14 feet wide, and the metal on the side where the pole is located is 5 feet and 7 inches from the fence. The pole was located 4 1/2 feet from the fence and 1 foot and 2/10 inches from the shoulder of the pike. The distance from the edge of the metal and from the buggy wheel tracks thereon to the post was from 12 to 16 inches. It also appears that the pole in question was out of line with defendant's other poles, and was nearer to the traveled portion of the road.

It is first insisted that defendant was entitled to a peremptory instruction, on the ground that the proximate cause of the accident was the fright of the horse and the breaking of the harness, and not the improper location of the pole. This is not a case of concurring acts of negligence on the part of both plaintiff and defendant. It is a case where the runaway was a pure accident and not due to any fault on the part of the plaintiff, and the evidence tended to show the pole was placed so near to the traveled portion of the highway as to obstruct public travel thereon. In other words, the injury was due both to the runaway and to the negligence of the defendant. The established rule in such cases is that both the runaway and the obstruction may be regarded as the proximate cause, but the runaway, although a proximate cause, will not relieve the defendant from liability if, as a matter of fact, the injury would not have resulted but for the negligent obstruction. This rule was applied in the case of Ring v. Cohoes, 77 N.Y. 83, 33 Am.Rep. 574, where the injury was due to an accidental runaway and a culpable defect in the highway. The municipality was held liable on the ground that the injury would not have resulted but for the defect. To the same effect are the following cases: Union Street R. Co. v. Stone, 54 Kan. 83, 37 P. 1012; Ehrgott v. New York, 96 N.Y. 264, 48 Am.Rep. 622; Glazier v. Hebron, 62 Hun, 137, 16 N.Y.S. 503; Houghtaling v. Shelley, 51 Hun, 598, 3 N.Y.S. 904; Chacey v. Fargo, 5 N. D. 173, 64 N.W. 932; Joliet v. Shufeldt, 144 Ill. 403, 32 N.E. 969, 18 L.R.A. 750, 36 Am.St.Rep. 453; Louisville Home Telephone Co. v. Gasper, 123 Ky. 128, 93 S.W. 1057, 29 Ky. Law Rep. 578, 9 L.R.A. (N. S.) 548. As well said in the case of Opdycke v. Public Service Railway Co., 78 N. J. Law, 576, 76 A. 1032, 29 L.R.A. (N. S.) 71:

"So long as horses require to be restrained by bit and bridle, it must inevitably at times occur--with what frequency or infrequency is of no present importance--that horses get beyond the control of the person in charge, and run at will through the streets and highways. An occasional runaway horse must necessarily be anticipated. The owner does not lose his property rights because the horse runs away. On the contrary, he is entitled to the use of the highway as a means to enable the horse to reach its home. And so the fact that the animal was at the time beyond the control of the owner cannot be availed of as a defense by one who has placed and maintained an unauthorized or improper structure in the highway."

We find nothing in the case of Allen v. Atlantic & Pacific Telegraph Co., 21 Hun (N. Y.) 22, or of Bailey v Bell Telephone Co., 147 A.D. 224, 131 N.Y.S. 1000, or of Jackson-Hazard Telephone Co. v. Holliday's Adm'r, 143 Ky. 149, 136 S.W. 135, ...