Powers v. Independent Long Distance Telephone Co.
| Citation | 114 P. 666,19 Idaho 577 |
| Parties | MARY A. POWERS, Respondent, v. INDEPENDENT LONG DISTANCE TELEPHONE COMPANY, Appellant |
| Decision Date | 21 March 1911 |
| Court | United States State Supreme Court of Idaho |
NEGLIGENCE-PERSONAL INJURY-TELEPHONE POLE-OWNERSHIP OF-VERDICT-SUFFICIENCY OF EVIDENCE-INSTRUCTIONS.
(Syllabus by the court.)
1. Where it appears from the evidence that the appellant company attached its wires to a pole that had been erected by others and left its wires so attached for about four years, and thereafter erected a pole of its own within a foot or eighteen inches of the pole to which said wires had been attached, and thereafter took all of its wires from the old pole and left the same standing in the position that it was when it attached its wires thereto, and thereafter another telephone company attached its wires to said pole and used the same for a period of two or three months, after which said pole was taken down by some one unknown to the appellant company and laid close to the sidewalk, where it remained for six weeks or two months, when the plaintiff was passing along the sidewalk and her foot was caught in a wire attached to said pole, and she was thrown violently to the sidewalk and severely injured, and upon the evidence introduced the jury rendered a verdict in her favor, held, that the evidence is not sufficient to sustain said verdict.
2. Under the evidence, held, that the appellant was not responsible for the taking down of said pole and placing it by the sidewalk, it having abandoned all the interest it had in said pole at the time it removed all of its wires therefrom several months prior to the taking down of said pole.
3. Held, that the court erred in giving certain instructions and that it erred in refusing to give certain other instructions requested by the defendant.
APPEAL from the District Court of the Third Judicial District, for the County of Ada. Hon. Fremont Wood, Judge.
Action to recover damages for personal injury. Judgment for plaintiff. Reversed.
Reversed and remanded. Costs awarded to the appellant.
Ira E Barber, for Appellant.
A transaction between two parties ought not to operate to the disadvantage of a third. It is manifestly unjust that a man should be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him. (1 Elliott on Evidence, 159; Broom's Legal Maxims, 954; Cleveland Ry. Co. v. Jenkins, 174 Ill. 398, 66 Am St. 296, 51 N.E. 811, 62 L. R. A. 922.)
The defendant would not be concluded by any act of the Idaho Telephone Co. (Anderson v. War Eagle Con. Mg. Co., 8 Idaho 789, 72 P. 671, and cases cited.)
The pole was personal property. It was erected by others long prior to the initiation of the Independent Long Distance Telephone Co., in Boise, and was used by defendant and its predecessor in title under no claim of either ownership or right.
This being true, parol evidence is admissible to prove ownership or lack of ownership. (Williams v. Jarrot, 6 Ill. 120; Mason v. Bowles, 117 Mass. 86; Fay v. Davidson, 13 Minn. 491; Knight v. State, 58 Neb. 225, 76 Am. St. 78, 78 N.W. 508; Gallagher v. London etc., 149 Pa. 25, 24 A. 115.)
The occupier or the owner loses his entire title when he abandons with the concurrence of intent and relinquishment.
And upon abandonment the prior owner's rights determine and the property is as to him as though he had never owned it. (Davis v. Butler, 6 Cal. 511; French v. Braintree, 23 Pick. 216; Wyman v. Hurlburt, 12 Ohio 81, 40 Am. Dec. 461; Huggins v. Reynolds, 51 Tex. Civ. App. 504, 112 S.W. 116; Church v. Meeker, 34 Conn. 421.)
The last taker, appropriator, or user of the property becomes responsible and liable for all that is vested in use, occupancy or ownership.
The question of use, occupancy or ownership, as between defendant and the R. M. B. Tel. Co., was an issue of fact solely for the jury--Who last used this pole and wire, and therefore, who was, at and on the date of injury, responsible for it?
The instructions complained of took all these questions away from the jury and the giving of them and the refusal of requested charges was an assumption by the court of the right to try these facts himself. (Waring v. Crow, 11 Cal. 369; Myers v. Spooner, 55 Cal. 257; Log Owners v. Hubbel, 135 Mich. 65, 97 N.W. 157, 4 L. R. A., N. S., 573; Utt v. Frey, 106 Cal. 392, 39 P. 807; T. C. Ry. Co. v. Taylor, 102 Ala. 224, 14 So. 379; Bartley v. Phillips, 165 Pa. 325, 30 A. 842.)
It was not the duty of defendant to care for or maintain this pole, and therefore, in the absence of evidence that the defendant placed the pole in the position where plaintiff became injured thereby, defendant cannot be held responsible. (McDonald v. Hoffman, 10 Cal.App. 515, 102 P. 673; Kennedy v. Hawkins, 54 Ore. 164, 102 P. 733, 25 L. R. A., N. S., 606; McDonald v. Snelling, 14 Allen (Mass.), 290, 92 Am. Dec. 768; South Side etc. Ry. Co. v. Trich, 117 Pa. 390, 2, Am. St. 672, 11 A. 627; Comes v. Dabney (Kan.), 102 P. 488; Lamb v. Licey, 16 Idaho 664, 102 P. 378.)
Hawley, Puckett & Hawley, for Respondent.
The court based its ruling refusing an examination of the premises on the changed condition, rendering the inspection of the premises of no benefit to the jury. Autoptic preference is allowable only on the assumption that the condition of the object offered is the same or sufficiently similar as when the act complained of happened. (State v. Brushwood & Cook, 13 Idaho 45, 88 P. 240.)
The appellant in the present case acquired all the rights of the old company in this pole in 1904, and made the pole in question a part of its system, just as did the old Independent company. Appellant had exercised over the pole all the dominion, rights and prerogatives of an owner; it had used the pole for the purpose of stringing its wires to at least two customers, and had no doubt received an income to which the pole in question had contributed by its user. (Wyman v. Hurlburt, 12 Ohio 81, 40 Am. Dec. 461, and notes; Deaderick v. Oulds, 86 Tenn. 14, 6 Am. St. 812, 5 S.W. 487; Haslem v. Lockwood, 37 Conn. 500, 9 Am. Rep. 350; McGoon v. Ankeny, 11 Ill. 558; Eads v. Brazelton, 22 Ark. 499-509, 79 Am. Dec. 88; Kansas City etc. Co. v. Wagand, 134 Ala. 388, 32 So. 744.)
(Jones on Teleg. & Tel. Companies, par. 185; Nichols v. Minneapolis, 33 Minn. 430, 53 Am. Rep. 56, 23 N.W. 868; West Kentucky Tel. Co. v. Pharis, 25 Ky. L. 1838, 78 S.W. 917; Davidson v. Utah Ind. Co., 34 Utah 249, 97 P. 124; Crawford v. Standard Tel. Co. (Iowa), 115 N.W. 878; Cumberland Tel. & Teleg. Co. v. Coats, 100 Ill.App. 519.)
The fact that the wires and poles of the company had been abandoned and their use discontinued is no defense when they have afterward caused injury. (So. Bell Tel. Co. v. McTyre, 137 Ala. 601, 97 Am. St. 62, 34 So. 1020; Nichols v. Minneapolis, supra; Jones on Teleg. & Tel. Companies, pars. 186, 187, 188; Pacific Tel. & Teleg. Co. v. Parmenter, 170 F. 140, 95 C. C. A. 382; Dobbins v. W. U. Tel. Co., 163 Ala. 222, 136 Am. St. 69, 50 So. 919.)
Two or more persons, although acting independently, whose combined acts of negligence cause an injury to another are regarded as joint tort-feasors, and either one or both may be held liable. (6 Thompson on Negligence, par. 7435.)
In this case it might be said that the defendant company furnished the pole and the white knobs for wire and the Bell company furnished the wire. (P. Tel. & Teleg. Co. v. Parmenter, 170 F. 140, 95 C. C. A. 382; Johnson v. N.W. Tel. Exchange Co., 48 Minn. 433, 51 N.W. 225.)
The fact is well established that a defendant may be held liable, notwithstanding that there may have been intervening negligence of a third party. (Louisville Home Tel. Co. v. Gasper, 123 Ky. 128, 93 S.W. 1057, 9 L. R. A., N. S., 548; Johnson v. N.W. Tel. Co. Exchange, 48 Minn. 433, 51 N.W. 225.)
This is an action to recover damages for personal injury alleged to have been sustained on the 29th day of June, 1907, by plaintiff's being caught, entangled and tripped by a wire attached to a telephone pole, which pole was lying along the sidewalk on Thirteenth street between Grove and Front streets, Boise City.
The answer denied the ownership of both the pole and the wire denied having taken down said pole and placed it along said sidewalk, denied all responsibility for said pole and wire being on the sidewalk, and averred that the pole was erected long prior to the existence of the defendant corporation, and was, in the month of February, 1907, used, employed and...
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