Raines v. East Tennessee Telephone Co.

• Decision Date: 21 November 1912
• Citation: 150 Ky. 670,150 S.W. 830
• Parties: RAINES v. EAST TENNESSEE TELEPHONE CO. et al.
• Court: Kentucky Court of Appeals

150 S.W. 830

150 Ky. 670

RAINES v. EAST TENNESSEE TELEPHONE CO. et al.

Court of Appeals of Kentucky.

November 21, 1912

Appeal from Circuit Court, Fayette County.

Action by Thomas Raines against the East Tennessee Telephone Company and another. Judgment for defendants on a directed verdict and plaintiff appeals. Reversed and remanded as to defendant named.

Stoll &amp Bush, J. H. Minogue, and Alpha Hubbard, all of Lexington, for appellant.

Geo. C Webb, of Lexington, for appellee East Tennessee Telephone Co. J. Embry Allen, of Lexington, for appellee City of Lexington.

HOBSON C.J.

In the year 1888 Crosthwait and Spottswood bought a tract of land known as the "Waters' property," at the corner of Short and De Weese streets, in Lexington, Ky. On the De Weese side of the property there was a roadway leading into it. Crosthwait and Spottswood sold off lots fronting on this roadway, which was called Locust avenue, and was 20 feet wide. Continuously since that time Locust avenue has been an open way used by the purchasers of lots abutting on it. It has never been accepted by the city as a street, and the city has in no way exercised control over it. But it has for many years been used as a passway by persons owning property fronting on it, and by the public having occasion to go to or from these houses. Sarah E. Smith, the owner of one of these houses, set back her fence four feet from the property line, leaving these four feet as a sidewalk. There was a path on it, but no pavement had been constructed. Along the property line she set posts a few feet apart, and on these posts nailed some scantlings, but the scantlings in time fell down, and for a number of years only the posts have been along the line. She had a telephone put in her house, and a telephone pole was erected on the property line, and to secure it a guy wire was also stretched along the line between her property and Locust avenue; the guy wire being on her land, but right next to the property line. Thomas Raines on March 2, 1910, went to the house of a property owner who lived just opposite Mrs. Smith on Locust avenue. It was after night, and, as he returned from this house on his way out, he stumbled over the guy wire, and sustained painful injuries, to recover for which he brought this suit against the telephone company and the city of Lexington. At the conclusion of the evidence for him which showed the above facts, the circuit court instructed the jury peremptorily to find for the defendants, and, his petition having been dismissed, he appeals.

It is not seriously insisted on the appeal that the peremptory instruction was erroneous so far as the city of Lexington is concerned. The city had not in any way accepted Locust avenue or taken control of it, and was therefore not responsible for its condition. The peremptory instruction as to the city was proper. But as to the telephone company a more difficult question is presented. While Locust avenue was not a street of the city of Lexington, it was a public passway for the persons living on it, and all those who had occasion to visit them. The purpose of laying it out in the sale of the property was to furnish access to the lots fronting on it. Without Locust avenue the lots could not have been sold, for there would have been no way to get to them.

The property owners were entitled to the use of the avenue, and if the telephone company had stretched its wire across the avenue, and Raines had thus been hurt, it could hardly be maintained that the telephone company would not be liable; for it had no right to obstruct this avenue, and it could not be excused for putting a dangerous obstruction on it. Rowan v. Portland, 8 B. Mon. 232; Wickliffe v. Lexington, 11 B. Mon. 163; Schneider v. Jacob, 86 Ky. 104, 5 S.W. 350, 9 Ky. Law Rep. 382; Cahill v. Layton, 57 Wis. 600, 16 N.W. 1, 46 Am.Rep. 46; Weldon v. Prescott, 187 Mass. 415, 73 N.E. 536, 105 Am.St.Rep. 413; Corby v. Hill, 4 C. B. N. S. 556; Louisville Tel. Co. v. Gasper, 123 Ky. 128, 93 S.W. 1057, 29 Ky. Law Rep. 578, 9 L.R.A. (N. S.) 548; Bevis v. Vanceburg Tel. Co., 121 Ky. 177, 89 S.W. 126, 28 Ky. Law Rep. 142.

But it is insisted that as the guy wire was on Mrs. Smith's property, and not on the highway, a different rule applies. But the rule is that dangerous obstructions placed so near a highway as to endanger persons traveling thereon are nuisances for which a recovery may be had by a person suffering injury therefrom. Thus in not a few cases recoveries have been had by persons injured from falling into unguarded pits left at the side of the highway. Under the rule laid down in these cases, clearly the telephone company would have been liable to Raines if it had dug a...